Sentencing Law and Policy

Justices in their usual (but still somewhat unpredicatable) roles as they consider 924(c) resentencing in Hewitt

The Supreme Court heard oral argument in Hewitt (et al.) v. U.S. to consider this formal question: "Whether the First Step Act’s sentencing reduction provisions apply to a defendant originally sentenced before the FSA’s enactment when that original sentence is judicially vacated and the defendant is resentenced to a new term of imprisonment after the FSA’s enactment."  In this substack essay last week, titled "Liberty’s absence in jurisprudence and practice regarding extreme prison sentences," I lamented that the briefing in this Hewitt case was "devoted to parsing the words 'sentence' and 'imposed' and debating statutory syntax rather than engag[ing] with liberty as a fundamental value or with limits on the state’s power to punish extremely."  Perhaps unsurpringly, as folks can hear/read here from the Supreme Court website, this morning's oral argument reflected the same deficiencies.

This Bloomberg Law piece reporting on the argument highlights that the Court did not readily signal where it might be headed.  Here are excerpts:

US Supreme Court justices struggled with how broadly to read a federal law meant to reduce harsh criminal sentences, with one saying the case was “really close.”

The question at the heart of arguments on Monday was whether the First Step Act’s reduced mandatory minimums apply to defendants originally sentenced before the law was enacted but later had the punishment vacated, or only to those who’ve never been sentenced. The answer turns on the meaning of “imposed,” as the law applies retroactively to those who committed a crime before it came into force in 2018 but who haven’t yet been sentenced.

Justice Sonia Sotomayor said the term “imposed” is ambiguous because it can mean either a “historical act,” meaning whether a sentence was ever imposed, or a “continuing application,” meaning that a valid sentence is in place. Because of that, the court should consider the context in which the law was passed, Sotomayor said. She said it was clearly meant to help defendants who faced what Congress saw as unfair sentencing.

But Justice Brett Kavanaugh said context doesn’t resolve the case. Congress wanted to apply the reduced sentences retroactively, but there was a limit because lawmakers didn’t open it up to everyone, Kavanaugh said. “I think this is a really close case,” he said.

The case is likely to affect a small number of defendants but it will be critical for those to whom it applies.

Based on a (too) quick read of the transcript, I sense the defendants can reasonably expect to get four votes (Justices Sotomayor, Kagan, Gorsuch and Jackson), but it is not clear that any other Justice will provide the key fifth vote.  If the rule of lenity had any real force in statutory interpretation, this ought to be a fairly easy case.  But. notably, it was barely mentioned in the oral argument.  It was mentioned that perhaps only a few dozen defendants will be impacted by this case; there is a lot of prison time at stake for a few, but this ruling seems unlikley to impact any other no matter who prevails.

"Unlocking State Punishment Clauses"

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

The United States Supreme Court has applied the Eighth Amendment in two ways with respect to criminal sentencing. It uses the “evolving standards of decency” doctrine for capital and juvenile life without parole cases.  And it uses the “gross disproportionality” test for all non-capital cases.  Almost every state has its own punishment clause, an analogue to the Eighth Amendment.  The language in most of these punishment clauses is similar to the Eighth Amendment.  The result is that many states have “lock-stepped” their interpretation of the state constitution with the Supreme Court’s interpretation of the Eighth Amendment.

As scholars and jurists have long noted, lock-stepping state constitutional provisions with federal constitutional provisions constitutes a flawed and problematic interpretive approach.  Lock-stepping substitutes the Supreme Court’s interpretation of the federal constitution for the state court’s reading of its own constitution.  It disregards the will of state citizens in passing their own constitution, contravenes states’ rights, and ignores important differences in text, context, and history of state constitutional provisions.

Some states have taken note and elected to interpret their state constitutions independently of the federal constitution.  Even so, where state supreme courts say that their punishment have separate meanings from the Eighth Amendment, their analysis largely mirrors aspects of one or both of the Court’s two doctrines.  So even states that explicitly do not lock-step with the Eighth Amendment nonetheless engage in a sort of analytical lock-stepping by relying largely on Eighth Amendment doctrines.  The courts engage in such approaches despite a long and well-developed literature criticizing Eighth Amendment doctrines from many different directions.

The goal of this symposium article is to unlock these punishment clauses from Eighth Amendment doctrine.  State punishment clauses have distinct meanings, meanings which may depart far from Eighth Amendment doctrine.  And even if a state court chooses to stay within the confines of the principles of the Eighth Amendment doctrine, the application of these principles can arguably be quite different in the context of a state as opposed to an entire nation.

As such, this Article creates a taxonomy of possible interpretations of state punishment clauses.  Specifically, it explores what the language of “cruel,” “and,” “unusual,” and “punishment” might mean.  This analysis gives rise to a number of doctrinal interpretations state courts might choose to adopt, particularly in light of the textual, contextual, and historical anomalies of their particular state.

Part I of the Article briefly describes the Court’s application of the Eighth Amendment.  Part II provides a brief survey of state punishment clauses.  In Part III, the Article explains why lock-stepping is problematic.  And in Part IV, the article “unlocks” state punishment clauses by providing a taxonomy of possible approaches state courts can adopt in reading and applying their state constitutions.

Two federal death row inmates seeking to reject Biden's commutation as they press innocence claims

As reported in this notable new NBC News piece,  "[t]wo prisoners who are among the 37 federal inmates whose death sentences were commuted last month by President Joe Biden — a move that spares them from the death chamber — have taken an unusual stance: They're refusing to sign paperwork accepting his clemency action."  Here is more:

Shannon Agofsky and Len Davis, both inmates at the U.S. Penitentiary in Terre Haute, Indiana, filed emergency motions in federal court in the state's southern district on Dec. 30 seeking an injunction to block having their death sentences commuted to life in prison without parole. The men believe that having their sentences commuted would put them at a legal disadvantage as they seek to appeal their cases based on claims of innocence.....

"To commute his sentence now, while the defendant has active litigation in court, is to strip him of the protection of heightened scrutiny. This constitutes an undue burden, and leaves the defendant in a position of fundamental unfairness, which would decimate his pending appellate procedures,” according to Agofsky's filing.

Davis wrote in his filing that he "has always maintained that having a death sentence would draw attention to the overwhelming misconduct" he alleges against the Justice Department. He also wrote that he "thanks court for its prompt attention to this fast-moving constitutional conundrum. The case law on this issue is quite murky."

But inmates face a daunting challenge in having their death sentences restored, said Dan Kobil, a professor of constitutional law at Capital University Law School in Columbus, Ohio, who has represented defendants in death penalty and clemency cases.  A 1927 U.S. Supreme Court ruling, for example, maintains that a president has the power to grant reprieves and pardons, and "the convict's consent is not required."...

In his filing seeking an injunction for Biden's commutation, Agofsky, 53, said that he is disputing how he was charged with murder in the stomping death and that he is also trying to "establish his innocence in the original case for which he was incarcerated."...  Davis, 60, "has always maintained his innocence and argued that federal court had no jurisdiction to try him for civil rights offenses," his filing says.  Both Davis and Agofsky are asking a judge to appoint a co-counsel in their requests for an injunction of the commutations.

If nothing else, these efforts to refuse a capital commutation seem likely to help ensure these defendants get more attention for their claims of innocence than many others.  And I have often asserted to students in my sentencing classes that convicted murderers claiming to be wrongfully convicted on death row are likely to get more attention for their claims of innocence than convicted murderers given LWOP.  These two defendants certainly seem to agree with this assertion.

Lots of January 6th discussions of possible Trump pardons of Jan 6 defendants

The day after Donald Trump was elected to serve a second term in the Oval Office, I asked in this post "How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?".  Perhaps unsurprisingly, a lot of press outlets are focusing on this notable clemency question on January 6, 2025.  Here is just a partial round-up of new pieces on this front:

From the AP, "Lawmakers brace for Trump’s promised Jan. 6 pardons. Some are urging restraint"

From CBS News, "4 years after Capitol attack, Jan. 6 cases hang in the balance with Trump pardons on the horizon"

From The Guardian, "Trump promised pardons for January 6 rioters in ‘first hour’ of his second term. What might this mean?"

From USA Today, "Will Donald Trump pardon January 6 Capitol rioters? Here's what he has said"

From the Wall Street Journal, "Trump’s Pardon Promise for Jan. 6 Rioters: Does it include the ex-meth trafficker who brought a metal baton and swung it at police?"

From the Washington Post, "The fate of nearly 1,600 Jan. 6 defendants depends on Donald Trump"

With exactly two weeks to go before Inauguration Day, I am wondering if January 20, 2025 might prove historic with two presidents granting clemency on that day.  I am certainly expecting incoming Prez Trump to use his clemency power on first first day back in office, and Prez Biden might be reasonably expected to make use of his clemency power on his last day in office.  Interesting times. 

A few of many recent related posts:

• How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?
• Fascinating account of concerns and chatter over Prez-Elect Trump's pardon plans for Jan 6 defendants 
• Prez-Elect Donald Trump already getting notable clemency requests amid lots of expectations 
• Another report on how pardon possibilities are impacting Jan 6 prosecutions 
• Imagining better clemency traditions than turkey pardons and lame-duck frenzies
• Prez-Elect Trump reiterates pledge to grant Jan 6 pardons on "first day" in office
• Recording of DEPC panel on "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power"

Previewing SCOTUS oral argument in Hewitt with a liberty lament

Next Monday, the Supreme Court will hear oral argument in Hewitt (et al.) v. U.S. to consider this formal question presented:

Whether the First Step Act’s sentencing reduction provisions apply to a defendant originally sentenced before the FSA’s enactment when that original sentence is judicially vacated and the defendant is resentenced to a new term of imprisonment after the FSA’s enactment.

After reviewing the briefs submitted to SCOTUS, I put together this substack essay titled "Liberty’s absence in jurisprudence and practice regarding extreme prison sentences." As the title suggestion, the extended essay is mostly about what strikes me as mostly missing in the briefs, and here is how the essay starts and ends:

Our nation has long valorized liberty. The Declaration of Independence champions “life, liberty and the pursuit of happiness." The U.S. Constitution’s preamble declares that the document seeks to "secure the Blessings of Liberty to ourselves and our Posterity." President Abraham Lincoln’s Gettysburg Address describes the United States a nation "conceived in liberty." And yet our historic commitment to the concept of liberty does not always find expression in our sentencing systems. My review of briefs filed in a pending Supreme Court case prompts me to grouse here about an example of liberty’s conspicuous absence in our sentencing jurisprudence and practices....

 I will close this discussion by lamenting a particular missing argument in Hewitt briefs. The Supreme Court stated in Graham v. Florida that a “sentence lacking any legitimate penological justification is by its nature disproportionate to the offense” and thus violative of the Eighth Amendment.  The chief dissent in Graham, while disputing whether Florida’s use of life sentences for juveniles advanced goals like deterrence and incapacitation, did not take issue with the majority’s assertion that wholly pointless punishment would be constitutionally problematic. In turn, given that it seems entirely pointless, as well as ridiculous, to reimpose multi-century (and congressionally repudiated) prison terms on defendants like Corey Duffey, Tony Hewitt and Jarvis Ross, I am troubled the Hewitt briefs do not raise any constitutional clams based in the Eighth Amendment or even the statutory argument of constitutional doubt. Again, given modern practices and jurisprudence, I am not actually surprised that a case about decades, even centuries, of imprisonment do not engender robust constitutional arguments. But, as I see it, this reflects problems with our modern practice rather than with our founding constitutional commitments.

Check out the whole essay here and lots of other great content at the Sentencing Matters Substack.

Outgoing North Carolina Gov issues capital communtations and other notable clemency actions

I believe today is the last full day in office for North Carolina's Governor Roy Cooper, and he is going out with two notable sets of clemency actions as reported in this press releases from this office:

"Governor Issues 2 Commutations and 2 Pardons of Forgiveness"

"Governor Cooper Takes Capital Clemency Actions"

Here is part of the statement regarding the capital clemencies:

Today, Governor Roy Cooper announced that he has commuted the sentences of 15 people on death row in North Carolina to life without the possibility of parole. He commuted these sentences after a thorough review of detailed petitions for clemency submitted by the defendants, input from district attorneys and the families of victims, and close review by the Governor’s Office. 

“These reviews are among the most difficult decisions a Governor can make and the death penalty is the most severe sentence that the state can impose,” said Governor Cooper. “After thorough review, reflection, and prayer, I concluded that the death sentence imposed on these 15 people should be commuted, while ensuring they will spend the rest of their lives in prison.”

No executions have been carried out in North Carolina since 2006 due to ongoing litigation. Before today’s commutations, North Carolina had 136 offenders on death row and the Governor’s Clemency Office received petitions for clemency from 89 of them. The Governor’s Office carefully reviewed, researched, and considered these 89 petitions for commutations, which included the 15 that were granted today.

Rounding up some reactions to Prez Biden's decision to commute 37 federal death sentences

Prez Biden's decision to commute the sentences of 37 of the 40 convicted murderers on federal death row to life without of parole is remarkable for many reasons.  Thus, it is not surprising that many people are remarking about the decision.  Here is an abridged round up of just some of the reactions catching my this morning:

From the AP, "Relief, defiance, anger: Families and advocates react to Biden’s death row commutations"

From The Atlantic, "Joe Biden’s Moral Wisdom"

From Fox News, "Family of murdered SC woman rages at Biden for commuting killer's death sentence: 'She was shown no mercy'"

From The Hill, "Biden did the right thing granting clemency to 37 federal death row inmates"

From MS-NBC, "Joe Biden's justifiable mercy"

From the New York Daily News, "Trump slams Biden for commuting death sentences of 37 federal prisoners"

From the Sacramento Bee, "Joe Biden’s inconsistent commutations: Hate is a crime, but apparently not for all"

From USA Today, "'A mistake': Biden faces backlash upon commuting sentences of death row inmates"

From 10TV (Columbus, Ohio), "'Absolutely devastating': Parents react to Biden's commutation of death sentence for man who killed their son"

Prior recent related posts:

• A few legal musings about the prospect of Prez Biden commuting all federal capital sentences 
• Prez Biden commutes to LWOP the federal death sentences of 37 murderers

Prez Biden commutes to LWOP the federal death sentences of 37 murderers

As reported in this AP piece, "President Joe Biden announced on Monday that he is commuting the sentences of 37 of the 40 people on federal death row, converting their punishments to life imprisonment just weeks before President-elect Donald Trump, an outspoken proponent of expanding capital punishment, takes office." Here is more:

The move spares the lives of people convicted in killings, including the slayings of police and military officers, people on federal land and those involved in deadly bank robberies or drug deals, as well as the killings of guards or prisoners in federal facilities.

It means just three federal inmates are still facing execution. They are Dylann Roof, who carried out the 2015 racist slayings of nine Black members of Mother Emanuel AME Church in Charleston, South Carolina; 2013 Boston Marathon bomber Dzhokhar Tsarnaev; and Robert Bowers, who fatally shot 11 congregants at Pittsburgh’s Tree of life Synagogue in 2018, the deadliest antisemitic attack in U.S history.

The White House has these releases detailing this notable clemency action: "FACT SHEET: President Biden Commutes the Sentences of 37 Individuals on Death Row" and "Statement from President Joe Biden on Federal Death Row Commutations."  The "Fact Sheet" in part discusses Prez Biden's clemency record and concludes with this notable sentence: "In the coming weeks, the President will take additional steps to provide meaningful second chances and continue to review additional pardons and commutations."  On the capital clemencies, the statement from Prez Biden is relatively short, and here it is in full:

I’ve dedicated my career to reducing violent crime and ensuring a fair and effective justice system.

Today, I am commuting the sentences of 37 of the 40 individuals on federal death row to life sentences without the possibility of parole. These commutations are consistent with the moratorium my Administration has imposed on federal executions, in cases other than terrorism and hate-motivated mass murder.

Make no mistake: I condemn these murderers, grieve for the victims of their despicable acts, and ache for all the families who have suffered unimaginable and irreparable loss.

But guided by my conscience and my experience as a public defender, chairman of the Senate Judiciary Committee, Vice President, and now President, I am more convinced than ever that we must stop the use of the death penalty at the federal level. In good conscience, I cannot stand back and let a new administration resume executions that I halted.

I mused a bit in this post over the weekend about a few legal issues that could follow these commutations, and one involved whether Prez Biden might include pending capital cases in any blanket clemency effort.  It appears he did not here (though he still has four weeks with the clemency pen).

Prior recent related post:

•   A few legal musings about the prospect of Prez Biden commuting all federal capital sentences 

A few legal musings about the prospect of Prez Biden commuting all federal capital sentences

Articles published last week from the New York Times and the Washtington Post discussed campaigns urging Prez Joe Biden to commute the capital sentences of all convicted murderers on federal death row.  Now the Wall Street Journal has this new "exclusive" report, headlined "Biden Weighs Commuting Sentences of Death Row Inmates," which gets started this way:

President Biden is considering commuting the sentences of most, if not all, of the 40 men on the federal government’s death row, people familiar with the matter said, a move that would frustrate President-elect Donald Trump’s ability to resume the rapid pace of executions that marked his first term....

A decision from the president could come by Christmas, some of the people said.  A principal question is whether the president should issue a blanket commutation of all the condemned men, or whether death sentences should remain for the most heinous convicts, these people said. 

According to the WSJ, "Attorney General Merrick Garland ... has recommended that Biden commute all but a handful of the sentences, ... excepting a few terrorism and hate-crimes cases."  Also notable, as reported in this Vatican News story, is broader advocacy from the Pope:

Pope Francis and US President Joe Biden spoke with each other in a phone call overnight on 19 December....  The two leaders discussed "efforts to advance peace around the world during the holiday season," according to a White House statement....  The President "also graciously accepted His Holiness Pope Francis’s invitation to visit the Vatican next month."  In a subsequent statement, the White House press secretary noted Biden will be in Rome from 9-12 January [and that] the audience with the Pope is scheduled for 10 January....

One of the issues that is particularly close to the Pope's heart is the fate of prisoners on death row.... The Pope has described the death penalty as an act "at odds with Christian faith" and one that "eliminates all hope for forgiveness and rehabilitation."  During the Angelus on the Feast of the Immaculate Conception on 8 December, the Holy Father called on the faithful to "pray for the prisoners who are on death row in the United States."...  "Let us pray," he said, "that their sentence be commuted, changed.  Let us think of these brothers and sisters of ours and ask the Lord for the grace to save them from death."  

I have been expecting Prez Biden to commute at least a few capital sentences on his way out of the Oval Office.  Prez Obama commuted two death sentences during his last week in office, and capital clemency has a rich modern history at the state level.  But these press reports have me thinking blanket or near-blanket commutation for all of federal death row is a real possibility and perhaps real soon (though maybe not until just before or just after Prez Biden meets with the Pope).  Though I will leave it to others to discuss the morality and the politics of blanket federal capital commutations, I wanted to muse here about a few legal matters:

1.  Because there are some pending federal capital prosecutions, including 9/11 terrorists at GTMO and the racist mass shooter who murdered 10 in Buffalo (and perhaps also even the recent murder of the UnitedHealthcare CEO), an effort to preclude all possible future executions might need to include murderers beyond those already sentenced to death.  There are ways to write up a broad clemency order that would apply to all pending cases, and it will be interesting to see if anti-capital commutations extend to pending cases as well as past ones.

2.  Because broad federal capital commutations will surely be controversial, I wonder if any states could or would try to secure death sentences for murderers spared by Prez Biden.  For example, I believe Pennsylvania held state capital charges in abeyance while DOJ sought and secured a federal capital sentence for the Tree of Life Synagogue mass murderer.  Were this mass murderer to escape a federal capital sentence, perhaps state capital charges would begin again.  Practically, I suspect there are only a very few cases in which a state could pursue their own capital charges (and a number of federal capital defendants committed murders in states without the death penalty).  

3.  Because broad federal capital commutations will surely be controversial, I wonder if the future Trump Department of Justice might explore the possibility of capital reprosecutions.  That might sound peculiar, but the Biden Department of Justice pursued unresolved fraud charges against Philip Esformes after his prison sentence had been commuted by Prez Trump.  Many folks expressed concern about what seemed like an end-run around a presidential clemency grant; I had the honor of testifying at a congressional hearing on the topic, and I've been deeply concerned about a new norm of future administrations looking for ways to undo some past clemency grants.  Practically, I suspect reprosecution efforts unlikely, especially if Prez Biden leaves some murderers on federal death row, but I am still grumpy the Biden DOJ created a precedent for doing so.

4.  Because federal capital commutations will be, presumably, to a term of imprisonment of life, it could be possible for the recipients to seek a future reduction of their prison sentence thanks to a key provision of the First Step Act signed into law by Prez Trump.  Specifically, 18 U.S.C. § 3582(c) now provides authority for a judge to "reduce the term of imprisonment" on a defendant's motion when certain (fairly stringent) conditions are met.  Though I can imagine viable arguments that murderers serving LWOP-commuted-death sentences are categorically ineligible for so-called "compassionate release," I still would expect some (many?) of those who get death sentences commuted to, at some point, try to also get their imprisonment term reduced.

Rounding up some new stories about state clemency activity

Federal clemency issues remains robust with both the out-going and in-coming President generating news and commentary.  Though I am sure to have many more posts on the federal front in the days and weeks ahead, I was pleased to see a few recent stories about Governors granting clemency that should not get overlooked.  Here is a round up:

From Colorado: "Colorado governor issues 22 pardons and commutes sentences of 4 people, including 2 men convicted of murder"

From Missouri: "Missouri Governor Mike Parson Clears Clemency Backlog, Grants 16 Pardons, and 9 Commutations at End of Term"

From New York: "Hochul grants clemency to 22"

From Tennessee: "Gov. Lee grants executive clemency to more than 40 people"

As noted in recent posts linked below, a few other state governors have also used their clemency pen in notable ways earlier this month. But, obviously, there are a lot more Governors who have not made clemency news than those who have. And it will be interesting to see if all the clemency controversy at the federal level could impact how Governors use their powers.

A few of many prior recent related posts:

• Ohio Gov DeWine adds to clemency conviviality with pardon event 
• After seven years in office, NJ Gov finally finds his clemeny pen to grant 33 pardons and three commutations
• Imagining better clemency traditions than turkey pardons and lame-duck frenzies

UPDATE ON CHRISTMAS EVE (in the AM):  Based on latest headlines, it seems at least three more Governors got into the holiday clemency mood:

From Michigan: "Michigan Gov. Gretchen Whitmer pardons 3, commutes sentences of 5"

From North Carolina: "Cooper pardons 9, commutes sentences for 6, including former NC teen convicted of murder"

From Texas: "Gov. Greg Abbott pardons four Texans but stays silent on Robert Roberson" 

Highligthing great new guest posts at the Sentencing Matters Substack (and welcoming more)

I have been (somewhat inconsistently) highlighting here the weekly posts at the Sentencing Matters Substack that some colleagues and I host to publish longer-form essays on an array of sentencing topics.  I am especially pleased that this month we have published two great new guest posts in that forum:

From Katie Kronick, "Why is it So Hard for Courts to Adjust to Advancements in Knowledge of Human Behavior?: A Death Penalty Case Study"

From Norman Reimer, "First Steps and Second Chances: A Review of "A Second Chance": a Federal Judge’s Perspective on Compassionate Release and a System in Need of Reform"

We are planning a final 2024 substack post new week that provides a brief review of some of the substack's coverage, and it also provides this open invitation for more outside contributions:

We genuinely appreciate you reading our essays and being part of this project.  Through our writing, we are trying to uncover an insight or two and share that thinking in a mildly interesting way.  We hope you will continue to join us as we grapple with the important issues of crime and punishment, remorse and forgiveness, policymaking and politics, law and judging, and freedom and justice in the year to come.  We’d love to hear from you now and then.  And we’d love to bring in new voices to this conversation, including yours, including those serving -- or who have served -- time in prison, victims of crime, prosecutors, defense lawyers, probation officers, judges, other academics, and just other everyday citizens.  We’ve tried to create an aesthetic on this Substack that is serious, at times just a little bit snarky, but always gracious.  If you’re at all inclined to contribute something, let us know. 

After seven years in office, NJ Gov finally finds his clemeny pen to grant 33 pardons and three commutations

I am disinclined to have this blog drone on with non-stop clemency coverage, but this is the season for grace and today marked the end of one Garden State mystery with New Jersey Governor Phil Murphy finally discovering his clemency power.  This Politico article provides some details:

New Jersey Gov. Phil Murphy on Monday issued 33 pardons and three sentence commutations in his first act of clemency, nearly seven years after he took office.  “My only regret is we did not get to this day sooner,” Murphy said at a Trenton press conference, promising this was just the “first round” of legal relief, with more to come over his final year in office....

Most of the pardons in New Jersey are for non-violent offenses, predominantly property crimes and drug offenses. Some date back to the early 1970s, with the most recent crime being a 2011 conviction for making a false report to law enforcement.

The three sentence commutations are all for women who were convicted of murder, with the most recent one from 2006.  “Over the course of their lives, each one of these women has suffered immense hardship. All of them are survivors in one form or another. But when they were originally sentenced for the crimes they committed years ago, they received sentences that were too long based on what we know today,” Murphy said....

Murphy ran for office as a progressive and instituted several major criminal justice initiatives, including expanding expungement and restoring the right to vote for those on probation and parole. That contrasted with his lack of clemency actions during his seven years in office. Murphy’s recent gubernatorial predecessors from both parties issued pardons or sentence commutations far earlier in their tenure, though most saved the bulk of them for their final year in office.

Murphy in June ordered the formation of a Clemency Advisory Board to consider pardon and commutation applications and make recommendations. The board gave expedited consideration to those convicted of non-violent crimes who later stayed out of the legal system. For commutations, they expedited applications for those given “excessive trial penalty” or if they were victims of domestic violence, sexual violence or sex trafficking.  The Murphy administration also said it made “more robust victim outreach than in prior administrations” ahead of granting clemency.

This official press release from Gov Murphy's office includes the full list of clemency recipients and other details, as well as some quotes from stakeholders (including "criminal justice advocate" Kim Kardashian).

Reduction granted on two bases to remedy extreme stash-house sting sentence

A helpful colleague alerted me to a notable recent sentence reduction ruling/opinion handed down last week in US v. Evans, No. 93-00123-CR (SD Fla. Dec. 10, 2024) (available download below). The case inolves a defendant who was initially sentenced three decades ago to 57 years in federal prison in a so-called "stash house sting" case. (I have posted on the ugly dynamics of stash-house stings in any number of prior posts, and I recommend two episodes of the Drugs on the Docket podcast (here and here).)  

The 33-page ruling in the Evans case should be read in full, as it covers lots of notable factual and legal ground.  The ruling defies easy summarization, and I will here just reprint the start of the opinion and some later notable passages:

Sherlon Evans has served over thirty-one years of a nearly fifty-year sentence, totaling 595 months.  Mr. Evans has now moved for a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A), claiming that “extraordinary and compelling” reasons warrant review....   

Mr. Evans cites two “extraordinary and compelling” bases recognized by the recent policy statement issued by the U.S. Sentencing Commission (the “Commission”) as potentially justifying a reduction in sentence.  First, Mr. Evans contends that he is serving an “unusually long sentence” that is subject to a substantive change in law, which would produce a “gross disparity” between the sentence he is currently serving and the sentence that would likely be imposed today. USSG § 1B1.13(b)(6).  Second, Mr. Evans points to the “unique aspects of [his] case” under the “catch-all” provision of § 1B1.13(b)(5), which permits a reviewing court to consider “any other circumstance[s]” that are “similar in gravity” to the other extraordinary and compelling reasons recognized by the Commission.

The Government opposes Mr. Evans’s Motion in its entirety.  It first challenges the validity of the Commission’s new policy, claiming the Commission had no authority to issue it, that the policy conflicts with § 3582(c)(1)(A), and that the policy raises separation of powers concerns.  The Government also argues that even if the new policy is binding, Mr. Evans is not entitled to a reduction under the supposedly compelling reasons he cites.  I reject the Government’s position on both fronts ... and reduce his sentence to time served....

[A]t least forty-three defendants who were convicted through reverse stash house stings have since had their sentences reduced to an average of just three years following protracted litigation against the ATF for alleged racial discrimination in its implementation of reverse stings.  [And] the circumstances of Mr. Evans’s sentence are even more striking in light of the fact that he played a relatively minor role in the conspiracy orchestrated by the ATF and Henry. That is, Mr. Evans was arrested because he was present when Henry planned and executed the “robbery.” I use the term “present,” as “the case against Mr. Evans was one that rose and fell on presence, and nothing more than presence. Presence [at] one meeting in which he may or may not have had very little to say, and presence along with everybody else at the scene of the offense at the time the arrests were made.”  Mr. Evans was not the ringleader or mastermind, did not supply weapons or recruit the other co-defendants into the scheme.  He was not even present when the conspiracy was hatched.  He was a tagalong, a hired hand to assist in the criminal deeds of others. Yet, Mr. Evans was sentenced with nearly the same degree of severity as those who were arguably more culpable in the commission of the crime....

[Other cases in which sentences were reduced] echo my own dismay and discomfort with the concept of a reverse stash house sting.  And when such a process results in a sentence of nearly half a century, that is an intolerable outcome.  To be sure, § 1B1.13(b)(5) may not be a vehicle to question the wisdom of the Government’s policing and prosecutorial practices.  It is a vehicle, however, to question the wisdom of continuing to incarcerate this particular man for another decade or more.  Sherlon Evans has served thirty-one years in federal prison for his presence in a conspiracy that he did not plan or lead, attempting to rob drugs that never existed, and carrying a “machine gun” that wasn’t a machine gun, which he never bought, held, brandished, or used. If his original sentence is left unaltered, Mr. Evans will be well into his seventies when he leaves prison — without having been convicted of actually selling one gram of cocaine or hurting any other person.

Download US v. Evans sentence reduction opinion

Prez Biden commutes sentences of COVID home confinement cohort and also grants 39 pardons

Two days ago, I moderated this event, titled "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power," in which a number of panelists assailed Prez Biden's clemency record.  This morning, the White House released this statement from Prez Biden reporting that his clemency record is now much more robust.  Here is the full text of what is titled "Statement from President Joe Biden on Providing Clemency for Nearly 1,500 Individuals on Home Confinement and Pardons for 39 Individuals Convicted of Non-Violent Crimes":

America was built on the promise of possibility and second chances.  As President, I have the great privilege of extending mercy to people who have demonstrated remorse and rehabilitation, restoring opportunity for Americans to participate in daily life and contribute to their communities, and taking steps to remove sentencing disparities for non-violent offenders, especially those convicted of drug offenses.

That is why, today, I am pardoning 39 people who have shown successful rehabilitation and have shown commitment to making their communities stronger and safer.  I am also commuting the sentences of nearly 1,500 people who are serving long prison sentences – many of whom would receive lower sentences if charged under today’s laws, policies, and practices.  These commutation recipients, who were placed on home confinement during the COVID pandemic, have successfully reintegrated into their families and communities and have shown that they deserve a second chance.

I will take more steps in the weeks ahead.  My Administration will continue reviewing clemency petitions to advance equal justice under the law, promote public safety, support rehabilitation and reentry, and provide meaningful second chances.

This CNN piece, headlined "Biden grants clemency for nearly 1,500 people, the biggest single-day act of clemency in modern history," provides a few details on the pardon recipients:

The 39 people being pardoned were convicted of non-violent crimes, and considered to have demonstrated records of meaningfully giving back to the country. “They are individuals who have secured employment, advanced their education, served as caretakers for their children and family members, and have really reintegrated into the tapestry of their communities,” an administration official familiar with the announcement told CNN. “They include individuals who faced incredible challenges in life and have really now shown resilience and seeking to overcome those challenges.”

While CNN has not obtained a full list of names of the clemency recipients, sources provided several examples of individuals being pardoned. Among them: A decorated military veteran described as having devoted much of his time helping members of his community including the sick and elderly; a nurse who is said to have helped during natural disasters and was at the forefront of vaccination efforts during the Covid-19 pandemic; as well as an addiction counselor recognized for his dedication to mentoring young men of color.

The pardon details in the CNN piece seems to come from this "fact sheet" released by the White House discussing today's clemency activity more fully.

UPDATE:  Here is a link to the full list of today's clemency recipients.

New HBO documentary, "Nature of the Crime," examines parole process through two New York murder cases

This short New York Times review flags a new documentary premeiring on Max tonight that seem worth checking out.  Here is the start of the NYT review:

Peering into the heart of the beast we call the justice system, the directors Ricki Stern and Jesse Sweet zero in on parole, a part of the process that usually unfolds behind closed doors.  “Nature of the Crime” offers rare glimpses of the make-or-break interviews that, in more cases than not, deny petitioners their longed-for second chance.  As it traces, over a four-year period, the cycles of hope and despair for two incarcerated men — both in New York prisons for crimes committed in the state — this quiet and affecting documentary is at once an argument for reform and a soul-searching question: Should the guiding principle of criminal justice be retribution or rehabilitation?

The men at the center of the film have been behind bars for more than 30 years.  Todd Scott was 19 when he was charged, alongside three others, with the killing of a rookie police officer in Queens.  Chad Campbell was charged at 14 with committing a horrific double murder in his upstate hometown. Speaking to the filmmakers, and in conversations with their devoted pro bono attorneys, they are thoughtful and sincere.  When they also recall the abuse they suffered as children, they provide context, not excuses.

Crack is still wack for thousands in Florida still carrying unconstitutional convictions from 1980s

This recent AP story, headlined "Florida prosecutor seeks to clear records of people charged with buying police-made crack in 1980s," highlights how remedies for unconstitutional convictions can often be a very long time in coming (if they come at all).  Here are the details:

A Florida prosecutor says he will seek to vacate as many as 2,600 convictions of people who bought crack cocaine manufactured by the Broward County Sheriff’s Office for sting operations between 1988 and 1990.

The Florida Supreme Court ruled in 1993 that people couldn’t be charged in cases where the sheriff’s office made the crack cocaine and undercover deputies then sold it to buyers who were arrested and charged.

Broward County State Attorney Harold F. Pryor said Friday that while his office was reviewing old records, prosecutors realized that many people may still have criminal charges or convictions on their records because of the sting operation. “It is never too late to do the right thing,” Pryor said in a statement.

It’s just one example of how the crack cocaine epidemic of the 1980s and early 1990s led to harsh police practices and heavy criminal penalties. Some people may have been convicted of serious felonies because they bought drugs within 1,000 feet (300 meters) of a school. Conviction under that law required at the time that defendants be sentenced to at least three years in prison.

“They were arresting people not for selling, but for purchasing,” Ed Hoeg, a defense lawyer, told the Sun Sentinel of Fort Lauderdale. At the time, Hoeg was a public defender who represented Leon Williams, whose appeal led to the state Supreme Court outlawing the practice. “They had detention deputies posing as dealers,” Hoeg said. “They would sell it, and these poor people who were addicts were buying it. And they were selling it within 1,000 feet of schools, so the penalties would be greater.”

The sheriff’s office said at the time that it began making crack because it didn’t have enough of the seized drug to use in its sting operations and because it didn’t have to later test the cocaine content of crack made by a sheriff’s office chemist. “We find that the law enforcement’s conduct here was so outrageous as to violate Florida’s due process clause,” the state Supreme Court wrote in the decision....

The review will take “a considerable amount of time,” Pryor said. He said his office will contact people who may be affected.

Prez-Elect Trump reiterates pledge to grant Jan 6 pardons on "first day" in office

Prez-Elect Donald Trump conducted a new interview during which, according to this NBC News piece, he discussed his pardon plans for January 6 defendants.  Here is the start of the article:

President-elect Donald Trump said he is looking to issue pardons to his supporters involved in the attacks on the U.S. Capitol on Jan. 6 as soon as his first day in office, saying those incarcerated are “living in hell.”

Trump’s comments, the most sweeping he’s made since winning the 2024 election, came during an exclusive interview with “Meet the Press” moderator Kristen Welker. He also said that he will not seek to turn the Justice Department on his political foes, and warned that some members of the House committee that investigated the Jan. 6 attack “should go to jail.”  On his first day in office, Trump said he will bring legal relief to the Jan. 6 rioters who he said have been put through a “very nasty system.”

“I’m going to be acting very quickly. First day,” Trump said, adding later about their imprisonment, “they’ve been in there for years, and they’re in a filthy, disgusting place that shouldn’t even be allowed to be open.”  Trump said that there “may be some exceptions” to his pardons “if somebody was radical, crazy” and pointed to some debunked claims about anti-Trump elements and law enforcement operatives infiltrating the crowd.

At least 1,572 defendants have been charged and more than 1,251 have been convicted or pleaded guilty in the attack. Of those, at least 645 defendants have been sentenced to periods of incarceration ranging from a few days to 22 years in federal lockup.  There are roughly 250 people currently in custody, most of them serving sentences after being convicted. A handful are being held in pretrial custody at the order of a federal judge.

Trump didn’t rule out pardoning individuals who had pleaded guilty, including when Welker asked him about those who had admitted to assaulting police officers. “Because they had no choice,” Trump said.

Asked about the more than 900 others who had pleaded guilty in connection to the attack but were not accused of assaulting officers, Trump suggested that they had been pressured unfairly into taking guilty pleas. “I know the system.  The system’s a very corrupt system,” Trump said. “They say to a guy, ‘You’re going to go to jail for two years or for 30 years.’ And these guys are looking, their whole lives have been destroyed. For two years, they’ve been destroyed.  But the system is a very nasty system.”

The crimes that have been charged range from unlawful parading to seditious conspiracy in the sprawling Jan. 6 investigation that included rioters captured on video committing assaults on officers, and who admitted under oath that they’d done so.

If Trump makes good on this pledge to grant pardons to the vast majority of Jan 6 defendants on this first day, he will set all sorts of modern clemency records.  These clemency statistics assembled by DOJ's Office of the Pardon Attorney show it has been half a century since a President has granted more than a few pardons at the start of a term in the Oval Office, and it has been a full century since a President had done more than 1200 pardons in his entire tenure.  (Notably, these DOJ data leave out mass clemencies like Prez Biden's mass marijuana possession pardons; if the Trump does Jan 6 pardons en masse, I am not quite sure how best to run the numbers.)

And, of course, as I have covered in recent posts here and here, lots of folks are urging Prez Biden to go big on clemency in his final weeks in office.  Biden statement in support of his most recent clemency decision suggests, when it comes to his child, he largely agrees with Trump's view on the "very nasty" federal criminal justice.  But since I dooubt, especially in this arena, that Biden is capable of "acting very quickly," we may have to keep waiting to find out if any other people's children might Biden's grace.

Excitingly, any and everyone interested in these issues still has time to register for the online event, "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power," being hosted on December 10 by the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law.  More details and a list of panelist can be found on this event page.  

A few of many recent related posts:

• How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?
• Fascinating account of concerns and chatter over Prez-Elect Trump's pardon plans for Jan 6 defendants 
• Prez-Elect Donald Trump already getting notable clemency requests amid lots of expectations 
• Another report on how pardon possibilities are impacting Jan 6 prosecutions 
• Imagining better clemency traditions than turkey pardons and lame-duck frenzies
• Register for "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power"

SCOTUS grants cert to address whether/when amended habeas petition is a second application

The Supreme Court on Friday arfternoon granted cert via this order list in two new matters.  One case, Rivers v. Lumpkin, involves an issue of modern federal habeas procedure.  Here is how this cert petition, filed on behalf of a Texas prisoner, presented the question:

Under the federal habeas statute, a prisoner “always gets one chance to bring a federal habeas challenge to his conviction,” Banister v. Davis, 590 U.S. 504, 509 (2020). After that, the stringent gatekeeping requirements of 28 U.S.C. § 2244(b)(2) bar nearly all attempts to file a “second or successive habeas corpus application.” Here, petitioner sought to amend his initial habeas application while it was pending on appeal. The Fifth Circuit applied § 2244(b)(2) and rejected the amended filing.

The circuits are intractably split on whether § 2244(b)(2) applies to such filings.  The Fifth, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits hold that § 2244(b)(2) categorically applies to all secondin-time habeas filings made after the district court enters final judgment.  The Second Circuit disagrees, applying § 2244(b)(2) only after a petitioner exhausts appellate review of his initial petition.  And the Third and Tenth Circuits exempt some second-in-time filings from § 2244(b)(2), depending on whether a prisoner prevails on his initial appeal (Third Circuit) or satisfies a seven-factor test (Tenth Circuit).

The question presented is: Whether § 2244(b)(2) applies (i) only to habeas filings made after a prisoner has exhausted appellate review of his first petition, (ii) to all second-in-time habeas filings after final judgment, or (iii) to some second-in-time filings, depending on a prisoner’s success on appeal or ability to satisfy a seven-factor test.

Another report on how pardon possibilities are impacting Jan 6 prosecutions

Politico has this new article providing another account of how Prez-Elect Donald Trump's Jan 6 pardon pledges are echoing through Jan 6 criminal cases. The full title of the piece captures its themes: "Judges push back as Trump’s return sparks defiance from Jan. 6 defendants: In multiple sentencings Friday, judges saw firsthand how attentively some Jan. 6 perpetrators heed their reprimands. (Which is to say, not at all.)" Here are some excerpts:

A vibe shift sparked by Trump’s imminent takeover of Washington has begun seeping into the marble halls of the federal courthouse, where nearly 1,600 members of the Jan. 6 mob have faced charges. On Friday, at four sentencing hearings, judges appointed by presidents of both parties wrestled with their warnings about the fragility of democracy while bracing for Trump to make good on his promise to pardon many of those they say perpetrated one of the greatest domestic threats in American history.

“The lie that the [2020] election was stolen is still being disseminated,” said U.S. District Judge Amy Berman Jackson, who also excoriated efforts by some Jan. 6 defenders to label the perpetrators “hostages” or “victims” of an abusive government. Jackson didn’t mention Trump by name but said storming the Capitol “at the direction of a disappointed candidate” was “the definition of tyranny and authoritarianism.” Far from dying down over the past four years, the Barack Obama-appointed jurist said at a sentencing hearing Friday for a member of the Proud Boys: “The volume’s getting turned up.”

Down the hall, one of the most prominent members of the Jan. 6 mob — Texas’ Guy Reffitt — was doing just that, lambasting the “bullshit” he said was coming from the judge in his own case, Trump-appointed U.S. District Judge Dabney Friedrich.

Reffitt, who has been in prison since early 2021, said he had been “in my feelings” for the last four years as a result of Biden’s victory. “Trump is now going to be the president of the United States,” Reffitt said as he attacked the case against him in an expletive-laden tirade. “I’m out of my feelings.”

Friedrich, who re-sentenced Reffitt to nearly seven years in prison, worried that he had become increasingly entrenched in his lack of remorse for his role at the vanguard of the riot. Reffitt, she said, “does seem to revel in his status” as a hero to the small but vocal group of Jan. 6 defenders and “loves the J6 family dynamics.”...

For many Jan. 6 defendants and their allies, the judges’ admonitions are increasingly falling flat. Many of them, emboldened by Trump’s rise, openly shrug the warnings off. As Reffitt walked out of the courtroom to be returned to prison, Brandon Fellows — who served most of a 3.5-year sentence for surging into the Capitol and putting his HTML feet on a senator’s private desk — called to him: “Guy, you’ll be out soon.”

Other defendants, too, have begun to feel the momentum swing in their favor, often trading sentiments of remorse in favor of defiance and confidence that Trump will soon swoop in to spare them any prison time.

A few recent related posts:

• How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?
• Fascinating account of concerns and chatter over Prez-Elect Trump's pardon plans for Jan 6 defendants 
• Prez-Elect Donald Trump already getting notable clemency requests amid lots of expectations 
• Imagining better clemency traditions than turkey pardons and lame-duck frenzies
• Register for "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power"

"Compassionless Plea Bargaining"

The title of this post is the title of this new paper authored by Julian Cook available via SSRN. Here is its abstract:

Too often, the guilty plea hearing process practiced in our federal courts fails to adequately ensure the validity of a defendant's change of plea decision.  Rather than engage in colloquies that are sufficiently in-depth and truly aimed at ascertaining voluntariness and defendant comprehension, critical details are frequently glossed over, and defendant guilty pleas are accepted without meaningful inquiry.

While academics have skillfully critiqued the Sixth Amendment and its trial-focused provisions, comparatively scant focus has been expended on the equally, if not more, critical change of plea hearing.  Compassionless Plea Bargaining seeks to fill this gap with its focus on a recent controversy that threatened to engulf the Biden Administration's Department of Justice into an unfortunate — and arguably embarrassing — controversy.

In December 2018, President Donald Trump signed into law the First Step Act.  Designed primarily to address the nation's mass incarceration crisis, one of its more overlooked features was a provision that addressed sentencing modification.  Commonly referred to as compassionate release, the Act sought to ease the ability of defendants to obtain a modification of their sentence in the event of an extraordinary life circumstance.  During the COVID-19 pandemic, as the virus spread rapidly through correctional facilities, compassionate release requests predictably skyrocketed — and so did the workload of federal prosecutors tasked to respond to these motions.  As a result, many U.S. Attorney's Offices included provisions in plea agreements requiring defendants to forgo their compassionate release rights under the Act in exchange for the concessions offered by the government.  A brewing controversy ensued, with critics, including the National Association of Criminal Defense Lawyers, arguing that the government was leveraging its substantial negotiating power, and defendants were often agreeing to such waivers in the absence of a full awareness of the attendant consequences.  In response, Attorney General Merrick Garland discontinued the practice in March 2022.  However, the reprieve is likely to be short-lived, as future attorneys general will almost certainly resuscitate the practice.

The byproducts of a guilty plea are varied, deeply consequential, and, as evidenced in the compassionate release context, can even be fatal.  This Article explains why federal change of plea hearings too often fail to adequately assess the knowledge and voluntariness underlying a defendant's guilty plea and offers a proposal for reform.

Rounding up some coverage on whom Prez Biden should give clemency to next

In this post on Monday, I flagged a lot of early commentary focused on Prez Biden's decision Sunday night to pardon his son Hunter.   There has been, unsurprisingly, continuing discussion of this pardon and its echoes.  One theme to the next round of pieces that I find especially interesting concerns who else should get the benefit of Biden's clemency pen.  Here is a round up of some of these pieces: 

From the AP, "Joe Biden’s pardon of his son Hunter spurs broader discussion on who else should be granted clemency"

From Axios, "Congress hands Biden a huge Hunter-driven pardon wishlist"

From Forbes, "Here’s Who Else Biden Could Pardon Before He Leaves Office — Beyond Hunter Biden"

From Fox News, "Jeffries wants Biden to dole out pardons for people aggressively prosecuted 'for nonviolent offenses'"

From Fox News, "Who else might Biden pardon after he spared Hunter from sentencing?"

From the Independent, "Who else could Biden pardon?"

From Mother Jones, "Hunter Got a Pardon. Will Drug War Victims?"

From the New York Times, "After Biden Pardons His Son, Prison Inmates Hope They’re Next"

From the Washington Post, "The people Joe Biden should have pardoned along with his son"

From wbur, "Rep. Ayanna Pressley is calling on Biden for more sweeping pardon action"

As I have mentioned before, folks interested in broader clemency matters may want to check out my recent Sentencing Matters Substack post on clemency traditions.  In addition, there is still time to regster for this timely December 10 event I will be moderating on federal clemency topics titled "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power."   

"The Meaning of Life, In Michigan: Mercy from Life Sentences Under the State Constitution"

The title of this post is the title of this new paper authored by David Shapiro and Molly Bernstein available via SSRN.  Here is its abstract:

Properly understood, the “cruel or unusual” punishment clause of the Michigan Constitution grants every person sentenced to life in prison a meaningful right to obtain release by making a convincing showing of rehabilitation. Today, however, Michigan has among the nation's largest populations of people serving both formal and de facto life sentences without any meaningful possibility of release.  Michigan’s current life-sentence regime therefore violates the state constitution.

In 1850, Michigan revised its constitution to prohibit “cruel or unusual punishment” creating a contrast with the conjunctive “cruel and unusual punishments” clause of the federal Eighth Amendment.  Under Michigan’s disjunctive prohibition, cruelty standing alone made a punishment “cruel” and thus unlawful.  But what made a sentence “cruel”?

Our analysis of sentencing and punishment practices immediately before and after the 1850 constitutional convention sheds light on this question.  Michigan abolished capital punishment in 1846, shortly before its 1850 constitutional convention.  Life in prison became the punishment for crimes previously punished by death.  These life sentences were “without parole” because no system of parole existed at the time.  But life sentences — indeed all prison sentences —  allowed a meaningful opportunity for release through a different and long-established mechanism: the pardon power. Liberal use of the pardon power was considered necessary to provide a meaningful opportunity to obtain release based on rehabilitation, thereby preventing life sentences from becoming “cruel” and thus unconstitutional.  According to accompanying executive statements, mercy (in particular, to prevent death in prison) and rehabilitation were among the primary bases for granting clemency from prison terms.

This historical record shows that, at the time, truly permanent or final, inflexible punishments did not exist.  Instead, for sentences both short and long, the necessity and efficacy of incarceration was always subject to review. Significant additional evidence confirms that, originally understood, it was cruel for the state to impose any punishment beyond that necessary to rehabilitate offenders — especially punishments that foreclosed the chance of rehabilitation entirely. For example, debates among delegates at the state’s 1850 constitutional convention reflect a shared understanding that the primary if not exclusive purpose of criminal sanctions was reformation, along with deep skepticism of any punishment that permanently excluded people from civil society.  This rejection of permanent prison terms prevailed in Michigan for well over 100 years. Through most of the 20th century, no one in Michigan was sent to prison without a chance of release. Instead, even people technically serving “life without parole” were routinely considered for and awarded release based on rehabilitation.  This longstanding practice confirms that permanent prison terms were not just needlessly cruel, but “unusual” to the point of nonexistent.

Yet today, as both executive clemency and parole grants have dwindled, Michigan has among the nation's largest populations of people serving both formal and de facto death-by-incarceration sentences, which we define as a life sentence unaccompanied by a meaningful opportunity to secure release by demonstrating rehabilitation.  With a focus on the role of clemency as a meaningful form of sentence review — particularly contemporaneous with the adoption of Michigan’s “cruel or unusual” anti-punishment clause — this article adds to the body of evidence showing that, according to the original meaning of Michigan's constitution, mandating death in prison is cruel and unconstitutional.

Prez Biden issues full pardon to his son Hunter

Upon seeing this news as reported by the New York Times, under the headline "Biden Issues a ‘Full and Unconditional Pardon’ of His Son Hunter Biden," I am tempted to joke that Prez Biden decided to use the long holiday weekend to pardon one last turkey.  Here are the basics:

President Biden fully and unconditionally pardoned his son Hunter on Sunday night, using the power of his office to wave aside years of legal troubles, including a federal conviction for illegally buying a gun, and Republican attacks that hounded the Biden family throughout the last four years.

In a statement issued by the White House, Mr. Biden said he had decided to issue the executive grant of clemency for his son “for those offenses against the United States which he has committed or may have committed or taken part in during the period from Jan. 1, 2014, through Dec. 1, 2024.”

He said he did so because the charges against his son were politically motivated and designed to hurt the president politically. “The charges in his cases came about only after several of my political opponents in Congress instigated them to attack me and oppose my election,” Mr. Biden said in the statement. “No reasonable person who looks at the facts of Hunter’s cases can reach any other conclusion than Hunter was singled out only because he is my son — and that is wrong.”...

Many of the president’s allies and critics had expected him to use the unique authority vested only in his office, even though the president’s spokeswoman had denied for months that Mr. Biden had any intention of doing so. NBC News first reported Sunday evening that Mr. Biden had in fact decided to pardon his son.

The reversal by Mr. Biden came just 50 days before he is set to leave the White House and transfer power to President-elect Donald J. Trump, who spent years attacking Hunter Biden over his legal and personal issues as a part of series of broadsides against Mr. Biden’s family....

It is not the first time a president has used his executive power to commute the sentence of a family member. On his last day in office, President Bill Clinton pardoned his half-brother Roger Clinton for old cocaine charges. A month before leaving office, Mr. Trump pardoned his son-in-law Jared Kushner’s father, Charles Kushner, for tax evasion and other crimes.

Both Roger Clinton and Charles Kushner had long since completed their prison terms, and the pardons were about forgiveness or vindication rather than avoiding time behind bars. Over the weekend, Mr. Trump said that he would nominate Charles Kushner to be the U.S. ambassador to France.

The full statement from Prez Biden is available at this link, and it concludes this way: 

For my entire career I have followed a simple principle: just tell the American people the truth. They’ll be fair-minded. Here’s the truth: I believe in the justice system, but as I have wrestled with this, I also believe raw politics has infected this process and it led to a miscarriage of justice -- and once I made this decision this weekend, there was no sense in delaying it further. I hope Americans will understand why a father and a President would come to this decision. 

I fully understand why a father would want to exempt a troubled son from the strictures of the criminal law, but I do not respect a President's decision to show grace here only to his child when there are many thousands of others who have sought clemency and arguably merit grace even more than does this father's privileged son.

Fascinating account of concerns and chatter over Prez-Elect Trump's pardon plans for Jan 6 defendants

In this post the morning after Donald Trump's election, I wondered aloud about how he might seek to make good on his campaign promises to pardon persons federally prosecuted for their behaviors at the Capital on January 6, 2021.  In that post, I noted that Trump's campaign team seemed eager to stress that Jan 6 clemencies would be decided "on a case-by-case basis."  But that statement raises all sorts of questions about what kind of clemency process Trump and his team might adopt to review the huge universe of 1,500+ Jan. 6 defendants likely to seek clemency.

A new lengthy Politico article notes that adds further intrigue to this developing story under the headline "Trump promised Jan. 6 pardons. His post-election silence is making loyalists nervous."  I recommend the piece in the full, and here are excerpts (with links from the original):

Donald Trump campaigned on a pledge to pardon a vast swath of supporters who stormed the Capitol on Jan. 6, 2021. But his silence on the matter since winning the election has begun unsettling some fervent allies awaiting even the slightest signal from Trump about how he intends to turn his campaign rhetoric into reality.

Federal judges overseeing Jan. 6 cases have been left to guess at Trump’s plans. As a result, they have allowed nearly all cases to proceed, saying Trump’s clemency plans are merely “speculative.” Meanwhile, federal prosecutors have brought a handful of new Jan. 6 felony cases since Election Day, and they’ve argued repeatedly against efforts by defendants to delay their cases to await Trump’s inauguration.

The Justice Department has charged more than 1,500 people for their roles in the riot. Throughout the 2024 campaign, Trump repeatedly said he would pardon many of them. But he left the specifics unclear, and never said whether he might leave in place some prosecutions, particularly against people who assaulted police.

Now that he’s president-elect, his failure to say more has begun nagging at some of his die-hard supporters, who have engaged in a public guessing game on X about Trump’s intentions....  Adding to the anxiety expressed by some Jan. 6 defendants is a statement from Trump’s transition team that hinted at a far more limited approach than the sweeping pardons that many in Trump’s base have demanded.

“President Trump will make pardon decisions on a case-by-case basis,” incoming White House press secretary Karoline Leavitt said in the statement.  The meaning of “case-by-case” has morphed into a raging debate among Jan. 6 defendants and their allies....

[T]wo Trump allies in Congress — Reps. Marjorie Taylor Greene (R-Ga.) and Andy Biggs (R-Ariz.) — issued new calls this week for Trump to issue blanket pardons.  [Julie] Kelly, who has spoken with Trump and congressional Republicans about concerns with Jan. 6 prosecutions, has similarly called for a blanket pardon to address what she calls a “blanket denial of the due process rights of Jan. 6 protesters.”

Kelly suggested that Trump’s public silence belies an enormous amount of advocacy behind the scenes, but she said there are also “political sensitivities” about the notion of pardoning those with assault charges — even though she believes many such pardons would be justified....

[Pam] Bondi, Trump’s new pick to lead the Justice Department, has said nothing publicly about Jan. 6, the perpetrators of the Capitol attack or whether she agrees with Trump’s view of the riot.  [Suzanne] Monk, who is leading an effort called the J6 Pardon Project, has told allies she is working to open lines of communication with Bondi.  In the meantime, Jan. 6 defendants and allies have continued hoping and speculating.

For any and everyone interested in these issues and broader clemency matters, let me further recommend my recent Sentencing Matters Substack post as well as this December 10 event I will be moderating on federal clemency topics.

A few recent related posts:

• How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?
• Prez-Elect Donald Trump already getting notable clemency requests amid lots of expectations 
• Imagining better clemency traditions than turkey pardons and lame-duck frenzies
• Register for "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power"

Weak names this year at Prez Biden's final turkey pardon ceremony

This new Washington Post piece reporting on today's turkey pardon ceremony at the White House includes a little political gravy, along with an explanation for the names of the birds. Here is how the piece starts:

“They tell me there’s 2,500 people here today, looking for a pardon!” President Joe Biden stared through his aviators at the crowd on the White House’s South Lawn on Monday morning.  Everyone laughed. It was a joke, right? The rows of chairs closest to the president were stuffed with Biden loyalists: Cabinet members, political appointees, staff, friends — maybe the sort of people whom President-elect Donald Trump might seek retribution against?

In the end, only a pair of turkeys, Peach and Blossom, walked free. They are the last turkeys who will be pardoned by the 46th president, and they will “join the free birds of the United States of America,” Biden said. Peach, standing on a platform to the president’s right, released an ecstatic gobble. “Peach is making a last-minute plea here,” Biden added.

The birds were raised by National Turkey Federation Chairman John Zimmerman on a farm in Northfield, Minnesota. Zimmerman and his 9-year-old son, Grant, were on hand, as was Minnesota Gov. Tim Walz, less than three weeks removed from his star turn as Vice President Kamala Harris’s running mate.  This would be the closest Walz gets to the White House, at least for now.

The turkeys were named for the state flower of Delaware. “By the way,” Biden told the crowd, “Delaware has a long history of growing peaches,” and peach pie is the official state dessert.  One imagines this is the last we’ll hear about Delaware for a while.  Biden also said that the peach blossom flower “symbolizes resilience, which is, quite frankly, fitting for today.” The president did not explain what he meant by this.

The names given to the pardoned turkeys are never especially clever or interesting, but I was hoping for a bit more fun this year.  I suppose Hunter and Donald would have been too edgy, and Martha and George a bit too opaque in its cheekiness except for those on a first-name basis with famous federal defendants. 

Knowing this ceremony was sure to take place this week, I drafted and published a new Substack entry at the Sentencing Matters Substack to fill out some of my yearly griping about turkeys getting more clemency attention than people.  This new entry, "Imagining better clemency traditions than turkey pardons and lame-duck frenzies," gets started this way:

Late November 2024 augurs some traditions in the world of executive power that I do not view as a cause for holiday celebration.  Every year, as Thanksgiving approaches, the President and some Governors conduct ceremonies to “pardon” a few turkeys (who are often given not-so-clever names).  This year, with President Joe Biden and some Governors now in their final weeks in power and no longer accountable to the voting public, the 2024 holiday season also brings the spectacle of efforts to encourage out-going chief executives to use their clemency pens robustly to benefit a wide array of justice-involved individuals.  That spectacle traditionally presages a frenzy of lame-duck clemency grants that are more predictable based on calendar dates than based on the merits of substantive pleas for justice or mercy.

Be sure to head over to the substack if you want to review my efforts to "envision a few potential new traditions in the clemency arena that would justify celebration."  I also close with some clemency thanks, including: "I am also thankful that, even in divisive political times, we typically hear only robust debates over how the clemency power should be exercised, not over whether the power should exist at all."  

In the spirit of thankfulness, it dawns on me that I have been remiss in highlighting a lot of the recent new content from the Sentencing Matters Substack thanks to my co-authors.  One co-author in particular has done a particularly impressive job making sure we post new content every week, and here are some of his more recent efforts:

• A Better Federal Drug Guideline
• Facing a New Political Reality: A Five-Part Post-Election Agenda for the U.S. Sentencing Commission
• The Sentencing Matters Substack Interview: Former Presidential Candidate, Governor, DEA Administrator, Congressman, and U.S. Attorney Asa Hutchinson
• The Sentencing Matters Substack Book Review: Sentencing Without Guidelines, by Rhys Hester
• § 5H1.1 (James’ Version)

Espcially because I have the great joy of hosting family this week, which means blogging may be a bit lighter than usual, be sure to head over to the Sentencing Matters Substack if you want to feast on extra helpings of sentencing discussions.

Also, for those of you hungry for more clemency talk, remember to register for the online event, "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power," being hosted on December 10 by the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law.  More details and a list of panelist can be found on this event page. 

Infamous mother, serving life with parole for killing her two son 30 years ago, denied parole in South Carolina

This CBS News piece reports on a high-profile murderer being denied her bid for parole today after having served 30 years in prison.  Here are the basics:

A parole board decided unanimously Wednesday that Susan Smith should remain in prison, despite her plea that God has forgiven her for infamously killing her two young sons 30 years ago by rolling her car into a South Carolina lake while they were strapped in their car seats.

It was the first parole hearing for Smith, 53, who is serving a life sentence after a jury convicted her of murder but decided to spare her the death penalty. She is eligible for a parole hearing every two years now that she has spent 30 years behind bars.

Smith made her case by video link from prison. She started by saying she was "very sorry," then broke down in tears and bowed her head. "I know what I did was horrible," Smith said, pausing and then continuing with a wavering voice. "And I would give anything if I could go back and change it."  In her final statements, Smith said God has forgiven her. "I ask that you show that same kind of mercy, as well," she said.

Smith made international headlines in 1994 when she insisted for nine days that a carjacker drove away with her sons.  Prosecutors have long argued that Smith killed 3-year-old Michael and 14-month-old Alex because she believed they were the reason the wealthy son of the owner of the business where she worked broke off their affair.  Her attorneys blame her mental health.

A group of about 15 people urged against parole.  They included her ex-husband and the father of the boys, David Smith; his family members; prosecutors; and law enforcement officials.  Along with a few others, David Smith had a photo of Michael and Alex pinned to his suit jacket.  He struggled to get out words at first, pausing several times to compose himself.  He said he has never seen Susan Smith express remorse toward him. "She changed my life for the rest of my life that night," he said. "I'm asking that you please, deny her parole today, and hopefully in the future, but specifically today," he said, adding that he plans to attend each parole hearing to make sure Michael and Alex aren't forgotten.

A decision to grant parole requires a two-thirds vote of board members present, according to the state. Parole in South Carolina is granted only about 8% of the time and is less likely with an inmate's first appearance before the board, in notorious cases, or when prosecutors and the families of victims are opposed.  

California Gov to hold off on Menedez clemency decision pending resentencing review by new DA

As reported in this Fox News article, California's Gov has made a non-decision concerning the clemency requests from the Menedez brothers: "Gavin Newsom has reached a decision on a pair of clemency requests for Erik and Joseph 'Lyle' Menendez, the two Beverly Hills brothers serving life without parole for the murder of their parents in 1989.  He will hold off until the newly elected Los Angeles District Attorney Nathan Hochman has time to review the case, respecting the will of the voters who sent the far left progressive George Gascon packing on Election Day, he said." Here is more:

"The Governor respects the role of the District Attorney in ensuring justice is served and recognizes that voters have entrusted District Attorney-elect Hochman to carry out this responsibility," Newsom's office said in a statement. "The Governor will defer to the DA-elect’s review and analysis of the Menendez case prior to making any clemency decisions."

Hochman, a former federal prosecutor and assistant U.S. attorney general during the President George W. Bush years, previously told Fox News Digital he would not reach a decision of his own until he becomes "thoroughly familiar" with all aspects of the case....

The Menendez brothers' resentencing hearing, requested by Gascon just days before he lost his re-election bid, is scheduled for Dec. 11. "Once I take office on December 3, I look forward to putting in the hard work to thoroughly review the facts and law of the Menendez case, including reviewing the confidential prison files, the transcripts of the two trials, and the voluminous exhibits as well as speaking with the prosecutors, defense attorneys and victim family members," Hochman said Tuesday....

The brothers have been held on sentences of life without the possibility of parole since 1996, after their second trial in the shotgun murders of their parents, Jose and Mary "Kitty" Menendez, who they ambushed in their living room. The first ended in a mistrial a few years earlier. They said they killed their dad in self-defense, believing he would have killed them after they warned him they would expose him as a child sex abuser. Their mom was sitting next to him, eating ice cream and watching TV when they started shooting from behind....

Hochman could continue where Gascon left off and seek the resentencing, ask the judge to withdraw the prior administration's resentencing request or file additional briefs to give the judge more material to work with as the court considers the matter....

If Hochman's office continues down the resentencing road, Newsom still has the final say. If the brothers' sentences are reduced to something that would make them eligible for parole, the governor has veto power over parole board decisions. He could also issue clemency or a pardon on his own.

A separate habeas corpus petition is also making its way through the court, which would be an additional path to freedom if successful. Their petition is based on newly emerged evidence in support of their allegations of child abuse against their father – a corroborating letter of unconfirmed origin and the word of Roy Rosello, a former Menudo member who said he too had been abused by Jose Menendez as a child.

Prior recent related posts:

• Kim Kardashian advocates reconsidering Menendez brothers' LWOP sentences just as Los Angeles DA begins to do so
• LA District Attorney announces that he will seek resentencing for the Menendez brothers
• Continuing coverage and comment on Menendez brothers' possible resentencing 

New Prison Policy Initiative briefing urges outgoing governors and Prez to grant capital clemency

The Prison Policy Initiative is aparently okay with one group of prisoners potentially spending longer in prison, as it has this new briefing urging clemency action to take condemned murderers off death row.  The themes of the briefing is spelled out in the full title: "Talking turkey about the death penalty: outgoing governors and the president must use their clemency power now: President Biden and three governors should use their clemency powers before they leave office to save the lives of people facing the death penalty, our nation’s cruelest punishment."  Here is how the report gets started:

Every November, it has become a light-hearted tradition for the president and some governors to “pardon” turkeys before the Thanksgiving holiday, sparing them from the dinner table. But when the nation’s political leaders take part in an annual turkey pardon, it’s hard not to think about the chronic underuse of clemency powers across the U.S., especially for people on death row.

If turkey pardons are about choosing life over death, using clemency powers to empty remaining death rows is a straightforward way for elected leaders to act on those values and reject a horrific practice. President Biden and the outgoing governors of North Carolina, Indiana, and Missouri in particular can use clemency for those facing a state-sanctioned death before they leave office early next year. More than a dozen other governors can stop executions in their states, too, by exercising their unilateral power to modify or reduce criminal convictions and sentences at any time.

In this briefing, we show that the outgoing president and some governors’ tactless traditions of granting relief to turkeys casts a harsh light on their records of granting relief to people condemned to die. Ultimately, their legacies won’t be shaped by crass Thanksgiving rituals, but by how they tapped their power to intervene in the moral atrocity that is the death penalty.

Prez-Elect Donald Trump already getting notable clemency requests amid lots of expectations

In this recent post, I flagged a number of press pieces providing various forms and sources of advice for Prez Biden concerning how he should use his clemency power on his way out the White House door.  While we await to see how the outgoing Prez decides to use his clemency pen, we can also note some of the notable recent press discussions of how the incoming Prez might use his clemency power as soon as he returns to the Oval Office:

From the Cincinnati Enquirer, "Lawyer: Ex-Ohio House Speaker Larry Householder seeks pardon from President-elect Trump"

From Fox News, "Eric Adams dodges question when pressed if he's 'embracing' Trump to get a pardon for criminal charges"

From the Military Times, "Veterans involved in Jan. 6 riot expect Trump to keep pardon promise"

From MSN, "'Tiger King' Joe Exotic begs Donald Trump for pardon and offers to join his cabinet"

From Newsweek, "Will Donald Trump Pardon Diddy? Former Employee Weighs In"

From the New York Times, "Proud Boys Leader Convicted of Sedition for Role in Jan. 6 Attack Asks Trump for Pardon"

From Vulture, "So, Which Celebrities Will Donald Trump Pardon This Time?"

From Wired, "Silk Road Creator Ross Ulbricht Is Waiting for Trump to Keep His Word — and Set Him Free"

There have also been a broad array of article from various states highlighting the number of Jan 6 defendants in that state that may be expecting a pardon from Prez-Elect Trump as soon as he becomes President.  As I flagged in this recent post, it may prove logistically challenging for a new Trump Administration to make good on pardon promises right away unless they opt for a blanket pardon approach.

A few recent related posts:

• How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?
• Prez Biden getting lots of advice concerning how he should use his clemency powers 
• Register for "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power"

"The Miserly Message of Grants Pass"

The title of this post is the title of this new essay just posted to SSRN and authored by Meghan Ryan. Here is its abstract:

The Supreme Court’s recent opinion in Grants Pass v. Johnson condoned states’ attempts to police homeless encampments.  This was a significant blow to unhoused individuals and their allies.  But the Court’s opinion also continued its march away from the longstanding evolving-standards-of-decency approach in Eighth Amendment cases. Grants Pass was something of an odd case in which to grant certiorari, but it served as an opportunity for the Court to send a quiet message that it would continue narrowing the Eighth Amendment’s scope.  As in other recent cases, the Court applied a more historical approach than the one traditionally used in Eighth Amendment cases, focusing on the original meanings of “cruel and unusual” and “punishments.”  Further, the Court surreptitiously narrowed the definition of “cruel” to require governmental intent and raised significant questions about the meaning of “punishments.”  This is yet another case in which the Court has shown its intent to continue whittling away at defendants’ Eighth Amendment protections.

How about some clemency grants, Prez Biden, to really honor vets in need on Veterans Day?

On Veterans Day, I often find myself thinking about veterans who, after serving our country in the military and thereby supporting our nation's commitment to liberty and freedom, return home to discover the hard way that these constitutional values are not always paramount in our modern criminal justice systems.  The Council on Criminal Justice (CCJ) has created a Veterans Justice Commission which has done a lot of extraordinary work in this space, and I have linked below some prior posts on CCJ's important efforts to spotlight the wide array of issues at the intersection of military service and criminal justice systems.  For example, this recent CCJ report highlights what (little) we know about justice-involved veterans: 

Approximately one third of veterans indicate that they have been arrested at least once in their lifetime, but that statistic relies on self-reported data.  In addition, the most recent estimate of incarcerated veterans comes from 2011; it identified 181,500 veterans in state and federal prisons and local jails.  These two findings underscore an unfortunate truth: reliable data on justice-involved veterans and the circumstances surrounding their criminal offending is sorely lacking.

Usefully, the most recent CCJ report focused on veterans gives attention to some of my favorite topics, second-look sentencing and clemency, to advocate on behalf of the veteran incarcerated population:

Within this push for second looks, little has been done to consider opportunities for incarcerated veterans to request resentencing based on facts related to their military service.  California is an exception.  In 2022, the legislature passed a penal code amendment that allows veterans suffering from one or more specified service-related conditions to seek resentencing....

Beyond resentencing, the consideration of military service might also be extended to the parole, pardon, and clemency processes, where it is often overlooked.  By not fully and formally considering military service as part of release decisions, crucial context may be missed, potentially denying veterans opportunities for parole, pardon, or clemency.

As the title of this post highlights, I would like to see President Biden operationize this recommendation today by using his historic clemency powers to salute at least a few veterans in federal prison with commutations and at least a few veterans who are out of federal prison with pardons.  There is much chatter these days about to whom Prez Biden might grant clemency on his way out and to whom Prez-Elect Trump might grant clemency on his way in, and yet it seems only "high-profile" crimes and criminals are getting much attention.  That reality is not suprising, but it is still quite disappointing on a Veterans Day when we all should know that there are plenty of low-profile veterans who surely merit clemency consideration.

Prior related posts:

• New CCJ commission to examine factors driving veterans' involvement in criminal justice system 
• Noting the notable challenge of defining "veteran" for various purposes connected to criminal justice systems 
• CCJ's Veterans Justice Commission releases "Honoring Service, Advancing Safety: Supporting Veterans From Arrest Through Sentencing" 
• Council on Criminal Justice releases new policy roadmap encouraging alternatives to prosecution and incarceration for justice-involved veterans 
• CCJ's Veterans Justice Commission releases new report with recommendations on aiding veteran reentry 

How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?

Throughout his succesful campaign for a return to the Oval Office, Donald Trump spoke repeatedly about pardoning persons federally prosecuted for their behaviors at the Capital on January 6, 2021.  With Trump now Preident-Elect, those promises are already leading to court filings in on-going Jan. 6 prosecutions as detailed in this new article:

Hours after most news outlets declared Donald Trump the winner of the presidential election, lawyers for January 6 defendants started to file motions, hoping to reap the benefits.

On Wednesday morning, an attorney for Christopher Carnell, who was found guilty of obstruction and other charges related to the riot on January 6, 2021, filed a motion to postpone a status hearing scheduled for Friday....  Carnell sought to move the hearing to December because he "is now awaiting further information from the Office of the President-elect regarding the timing and expected scope of clemency actions relevant to his case."... A judge denied Carnell's request on Wednesday....

An attorney for Jaimee Avery, another January 6 defendant, also filed a motion to delay a sentencing hearing scheduled for Friday.  Avery's lawyer is seeking to postpone it until after the presidential inauguration in January because of the "real possibility that the incoming Attorney General will dismiss Ms. Avery's case or, at the very least, handle the case in a very different manner."  As such, it would be "fundamentally unfair" for Avery to be sentenced this week....

The Justice Department's investigations and trials related to January 6 are ongoing. As of November, the Justice Department said that over 1,532 people had been charged, including 571 people who face felony charges of assaulting or impeding the police....

Trump has maintained that he would pardon many of the defendants, with the exception of those who are "evil and bad," he told Time in April.  Speaking to the National Association of Black Journalists in July, Trump said he would "absolutely" pardon rioters. "If they're innocent, I would pardon them," he said. "They were convicted by a very tough system."

Obviously, it is not entirely clear just what Trump may mean by "innocent" and "evil and bad" as determinants of who he will and will not pardon among the Jan. 6 defendants once he gets back to the White House.  But it does seem Trump is disinclined to issue a blanket pardon to all the Jan. 6 defendants.  And, as detailed in this April 2024 NBC piece, the Trump campaign was eager to stress that Jan. 6 clemency would involve a "case-by-case" process:

Former President Donald Trump ...  said that, if elected, he'd "absolutely" consider pardoning every single one of the hundreds of criminals convicted in connection with the attack on the U.S. Capitol.  But Trump's campaign, in a statement to NBC News, said such pardons would be "on a case-by-case basis," not the sort of blanket pardon Trump referred to in a recent interview with Time magazine....

"As President Trump has promised, he will pardon January 6th protestors who are wrongfully imprisoned by Crooked Joe Biden’s Justice Department, and those decisions will be determined on a case-by-case basis when he is back in the White House,” Karoline Leavitt, national press secretary for the Trump campaign, said.

I would guess that more than a few January 6 defendants and their supporters are already preparing clemency materials and that folks may already be trying to get them to Prez-Elect Trump and his team well before he takes office on January 20, 2025.  That reality leads me to wonder just what kind of clemency process Trump and his team might adopt to review the huge universe of 1,500+ Jan. 6 defendants that may seek clemency. 

Notably, Trump during his first term showed little interest in utilizing the traditional (and traditionally slow) Justice Department process for reviewing clemency applications.  But he also only issued a few dozen clemency grants before his final year in office and many of those involve high-profile political cases.  In his final year in his first Term (and especially once he was a lame duck), Trump ramped up his clemency grants, though finishing with still less than 250 total grants over four years.  Carefully reviewing and making case-by-case clemency decisions for all the Jan. 6 defendants would be a massive undertaking that could easily take the Trump team years, and I have to think this work will not be the new administration's top priority.

Notably, President Obama's experiences with clemency in the final years of his seoncd term provides a possible template for this kind of work, though I doubt the Trump team is likely to follow this model.  Working with the Justice Department, as detailed here, the Obama Administration created Clemency Project 2014 (CP14) which set forth a set of criteria for a kind of preferred clemency review at the Justice Department and in the White House.  The administration of CP14 had all sorts of ups and down, but in the end it helped Prez Obama grant a record number of federal commutations (over 1700).  Might Trump create some kind of CP25 to deal with the Jan. 6 cases?  

Interesting times.

Register for "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power"

The eve of Election Day 2024 seems like a good time to flag an online event on the presidential clemency power being hosted on December 10 by the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law.   Here is the event page for the event where you will see this overview and list of panelists:

Both Barack Obama and Donald Trump closed out their presidential terms with a significant number of clemency grants, though the processes adopted by these two presidents differed dramatically. President Biden has already taken some notable clemency actions, though what might be in store for his clemency pen in his final months remains uncertain.  Perhaps even more uncertain: what should be expected regarding the future of the federal clemency power in the next presidential administration?

On December 10th, 2024, join us to hear a panel of experts discuss their perspectives on the past, present, and future of the President's Clemency Power.

Panelists
Mark Osler, Robert & Marion Short Distinguished Professor of Law, University of St. Thomas School of Law
Rachel Barkow, Charles Seligson Professor of Law; Faculty Director, Zimroth Center on the Administration of Criminal Law; NYU School of Law
Eric Luna, Amelia D. Lewis Professor of Constitutional and Criminal Law, Foundation Professor; Faculty Director, Academy for Justice; Arizona State University Sandra Day O'Connor College of Law
Larry Kupers, Former Deputy Pardon Attorney (Obama Administration); Former Acting Pardon Attorney (Trump Administration); Former Federal Defender

You can register for the Zoom event at this page.

Lots of Rahimi GVRs and a curious GVR in long-simering Eighth Amendment capital eligibility case in new SCOTUS order list

The Supreme Court is back in action this week, and this morning it released this notable new order list.  The start and end of the list will be of greatest interest for criminal justice fans.  At the start, we get seven GVRs of criminal cases from four different circuits needing "further consideration in light of United States v. Rahimi, 602 U. S. ___ (2024)."   I am not sure of the specifics of all these cases, but I am sure the Rahimi Second Amendment churn and uncertainty is not concluding anytime soon.

What is concluding, though, is uncertainty about what the Justices are doing with Hamm v Smith, a case the Court had relisted more than 25 times, I believe. (This recent post noted some recent speculation about the case.)  At the end of today' order list we find a two-page per curiam order sending the case back to the Elevent Circuit.  Here is how it starts and ends: 

Joseph Clifton Smith was sentenced to death for the murder of Durk Van Dam. The U.S. District Court for the Southern District of Alabama vacated Smith’s death sentence after concluding that he is intellectually disabled. See Atkins v. Virginia, 536 U. S. 304 (2002). Smith has obtained five full-scale IQ scores, ranging from 72 to 78. Smith’s claim of intellectual disability depended in part on whether his IQ is 70 or below.  The District Court found that Smith’s IQ could be as low as 69 given the standard error of measurement for his lowest score of 72.  The District Court then vacated the death sentence, and the U.S. Court of Appeals for the Eleventh Circuit affirmed.....

The Eleventh Circuit’s opinion is unclear on [its approach to multiple IQ scores], and this Court’s ultimate assessment of any petition for certiorari by the State may depend on the basis for the Eleventh Circuit’s decision.  Therefore, we grant the petition for certiorari and Smith’s motion for leave to proceed in forma pauperis, vacate the judgment of the Eleventh Circuit, and remand the case for further consideration consistent with this opinion.

JUSTICE THOMAS and JUSTICE GORSUCH would grant the petition for a writ of certiorari and set the case for argument.

This GVR conclusion to this long-simmering case may only enhance speculation about what various Justices might have considered the right approach to the broader issues of the Eighth Amentment jurisprudence this case could raise. It will be quite intriguing to see what the Eleventh Circuit might do upon remand and what might come before SCOTUS thereafter.  

For those interested in a bit more background, here is a new CNN article on the Hamm v. Smith disposition: "Supreme Court orders more review of Alabama’s request to execute inmate courts said is intellectually disabled."

Based on "the will of Congress," Third Circuit panel adheres to prior ruling limiting ground for compassionate release

I noted in this recent post that a Sixth Circuit panel heard oral argument this past week to consider its precedent limiting grounds for compassionate release in light of last year's US Sentencing Commission guideline amendment allowing some "changes in the law" to serve as basis for sentence reduction under § 3582(c)(1)(A)(i).  In that post, I explained that I thought this issue of statutory interpretation should be fairly straight forward for any and all true textualists.  Today, a panel ruling form the Third Circuit in US v. Rutherford, No. 23-1904 (3d Cir. Nov. 1, 2024) (available here), reinforces my view.  The panel in Rutherford rules against the defendant not based on any determinative text, but rather based on its belief as to "the will of Congress":

We agree with the government that subsection (b)(6) in the amended Policy Statement, as applied to the First Step Act’s modification of § 924(c), conflicts with the will of Congress and thus cannot be considered in determining a prisoner’s eligibility for compassionate release.  Congress explicitly made the First Step Act’s change to § 924(c) nonretroactive.  Pub. L. No. 115-391, § 403(b), 132 Stat. 5194, 5222.  And, in Andrews, we held that it would be inconsistent “with [the] pertinent provisions of [the First Step Act],” 28 U.S.C. § 994(a), to allow the amended version of § 924(c) to be considered in the compassionate release context because “Congress specifically decided that the changes to the § 924(c) mandatory minimums would not apply to people who had already been sentenced.” Andrews, 12 F.4th at 261.  

Besides the non-textual nature of divining the "will" of Congress to rule against a defendant, this holding conflates Congress's nonretoractivity decisions in the First Step Act with its decision, in the very same Act, to expand access to compassionate release and to keep in place the broad parameters of USSC authority to set terms for compassionate release.  There is nothing at all "inconsistent" with Congress saying not everyone should automatically retroactively benefit from a particular change in law and the USSC saying that judges can consider a change in law for a select few pursuing another legal remedy.  Put more clearly and directly, the USSC's policy statement regarding compassionate release does not formally or functionally make the First Step Act change to § 924(c) retroactive to anyone, and so it is in no way inconsistent with Congress's decision not to make that change retroactive to everyone. 

I could go on and on, but Rutherford ultimately stands as another telling example of the limits of textualism when a criminal defendant is the one stressing that the text Congress enacted is in his favor.  Even if text is clear (as I think it is here), courts are ready and able to say that the "will" of Congress is more important than the text.  (Notably, the Rutherford decision seem to think the "will" of Congress only makes it a problem for district courts to consider the § 924(c) change in law as part of a compassionate release motion; other changes in law would seemingly still be permissible considerations under the USSC's policy statement.) 

I assume a motion for an en banc review in Rutherford will be next up in the Third Circuit, and it will be interesting to see if any textualists elsewhere on that court might be troubled by the panel's reliance on congressional "will" over congressional text.  A Fifth Circuit panel has gone the other way, but I surmise there could still be full court consideration there.  And the Sixth Circuit, as well as a few other circuits, may also weigh in before SCOTUS may be inclined to take up this issue.  I suspect SCOTUS review is inevitable, with "when" perhaps more of an uncertainty than "if." 

Most recent related posts:

• Split Fifth Circuit panel holds that "changes in the law" can be a basis for sentence reduction under § 3582(c)(1)(A)(i) 
• Previewing latest cases before circuit court on USSC guideline allowing some "changes in the law" to serve as basis for sentence reduction under § 3582(c)(1)(A)(i) 

Previewing latest cases before circuit court on USSC guideline allowing some "changes in the law" to serve as basis for sentence reduction under § 3582(c)(1)(A)(i)

Bloomberg Law has this new article, headlined "Sentencing Commission Policy Power Faces Unusual Test on Appeal," previewing a notable oral argument in the Sixth Circuit scheduled this week to consider the US Ssentencing Guideline provision that permits some "changes in the law" to serve as basis for possible sentence reduction under § 3582(c)(1)(A)(i).  Here are excerpts:

A US Sentencing Commission policy statement that allows courts to consider nonretroactive changes to the law when weighing a criminal defendant’s bid for compassionate release will be tested during oral arguments in the US Court of Appeals for the Sixth Circuit Thursday.

Federal prosecutors around the country have challenged the policy statement, which allows courts to consider a change in the law — other than nonretroactive changes to the guidelines manual — as an extraordinary and compelling reason allowing a sentence reduction.

Under the policy, courts must consider the defendant’s individualized circumstances and can reduce a sentence only when the defendant received an “unusually long sentence,” has served at least 10 years in prison, and there’s a “gross disparity” between the sentence the defendant is serving and the sentence likely to be imposed now.

The Justice Department says the commission is effectively making nonretroactive laws retroactive....

Before the commission stepped in, five circuits—the Third, Sixth, Seventh, Eighth, and D.C. — said courts couldn’t consider a nonretroactive change in the law for purposes of compassionate release. Four circuits — the First, Fourth, Ninth, and Tenth—explicitly allowed judges to consider such changes, at least when examining a defendant’s overall circumstances.

The commission amended its policy statement describing “extraordinary and compelling” reasons for a sentence reduction in response to the First Step Act of 2018, an overdue move resulting from the commission lacking a quorum for several years.

The policy aimed to resolve the circuit split by allowing consideration of nonretroactive changes within a larger analysis. But DOJ has since taken the position that—despite an express delegation of authority — the policy exceeds the commission’s statutory power.  In DOJ’s view, a change in law can never be “extraordinary” or “compelling.”

Regular readers may know that I think this issue should be pretty easy to resolve for any and every jurist committed to textualism. There is absolutely nothing in the text of § 3582(c)(1)(a) that supports the Justice Department's contention that non-retroactive changes in the law cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors.  If a court rules otherwise, it is just inventing an extra-textual categorical limitation on the express statutory authority Congress gave to district courts to reduce prison terms (persumably based on the court's policy view that there should be additional limits beyond what Congress set forth in the statutory text).

That said, Congress did provide expressly in statutory text that there is be one factor that could not alone serve as the basis for sentence reduction under § 3582(c)(1)(a): "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason." 28 USC § 994(t).  But that clear textual exclusion reveals that Congress plainly knows how, in express statutory text, to exclude a particular reason from being alone the basis for a sentence reduction.  The expresio unius canon of construction — "the expression of one is the exclusion of others" — in turn suggest that courts should not be inventing additional extra-textual categorical exclusions that Congress did not actually place in the statutory text.  (Moreover, the use of the word "alone" in § 994(t) further suggests that Congress wants even "debatable" factors that cannot alone be the basis for a reduction to be useable in combination with other factors.)

Of course, Congress also provided in 28 USC § 994(t) that the US Sentencing Commission "shall describe what should be considered extraordinary and compelling reasons for sentence reduction," which does suggest that the Commission has statutory authority to limit what can qualify as "extraordinary and compelling reasons" for a sentence reduction.  Indeed, the Commission did just that in its 2023 amended policy statment, §1B1.13(b)(6), which puts all sorts of restrictions on just when "a change in the law ... may be considered in determining whether the defendant presents an extraordinary and compelling reason."  But, again, the text in applicable statutes makes plain that Congress tasked only the Commission with describing (and potentially limiting) sound grounds for sentence reductions under § 3582(c)(1)(a).  Creating new categorical limits on sentencing reduction grounds is not a job for circuit courts, unless those courts believe it is supposed to be their role to ignore clear statutory text and displace the policy-making roles of both Congress and the US Sentencing Commission.

An incomplete review of former Prez Trump's eccentric and eclectic use of his clemency power

Over at Slate, there are two new pieces about Donald Trump's clemency record when he was in the Oval Office.  Because "weird" has apparently taken on talismanic meaning this election cycle, the headline of one piece uses that adjective to describe Trump's pardons.  As the headline of this post highlights, I am thinking "eccentric and eclectic" are more fitting.  Readers are urged to make suggestions on the best adjectives to describe Trump's record after checking out these Slate pieces:

"Trump’s Pardons Were Way Weirder Than You Remember: A rattlesnake smuggler, a congressman who spent campaign money on his rabbit, a hip-hop superstar—and more!"

"I Revisited Everyone Donald Trump Pardoned. One Alarming Consequence Was in Plain Sight.: His disgraced political operatives have been busy."

Here is a segment from the start of this second piece:

When Donald Trump, seven months into his presidency, pardoned the corrupt Arizona Sheriff Joe Arpaio before he could even be sentenced — calling the 85-year-old a “great American patriot” — it caused a gigantic scandal....

That first pardon broke with accepted norms, but by the end of his term, when Trump had granted pardons or commutations to 237 people, few were surprised by the kinds of recipients on the list. There were war criminals and police officers accused of brutality. There were scores of people who had been convicted of political corruption or fraud. The then president wasn’t exceptional in pardoning large numbers of people — Obama, for example, granted executive clemency to 1,927, many as part of mass commutations for nonviolent drug offenses — but Trump’s pardons were remarkably self-serving.

The full list includes an eclectic mix of criminals: drug dealers, wildlife smugglers, rappers who illegally possessed firearms, even sellers of bad beef.  But there’s a category of recipient that stands out: his own people.  Donald Trump had a remarkable number of people in his orbit who were convicted of crimes, including Steve Bannon, Michael Flynn, Roger Stone, and Paul Manafort.

Unsurprisingly, this kind of review glosses over clemency grants to a number of folks who were excessively sentenced and who failed to get relief from prior presidents (eg, Alice Marie Johnson and John Knock and a number of others).  In a funny way, I think one important lesson of Prez Trump's clemency record (and, to some extent, Prez Obama's record as well) is that granting a few (or many) controversial pardons to high-profile folks will lead to a whole lot of other clemency grants being largely ignored (for good or bad).

LA District Attorney announces that he will seek resentencing for the Menendez brothers

In this post from a few weeks ago, I noted the notable activity focused on possible resentencing of the Menendez brothers, who were convicted and sentenced to LWOP in California for the brutal 1989 killing of their parents. As reported in this Courthouse News Service piece, "LA District Attorney George Gascon announced Thursday that his office will be recommending that Erik and Lyle Menendez, who killed their parents in 1989, be resentenced." Here is more:

Erik and Lyle Menendez have been locked up for 35 years and are serving life sentences without the possibility of parole. They have claimed, both during their trials and subsequent to them, that they were sexually abused by their father Jose, and that the killings were done out of fear of continued abuse and a response to trauma. Their first trial, in 1993, ended in a mistrial, with the jury remaining deadlocked after a month of deliberations. After a second trial ...., the brothers were convicted. During both trials, prosecutors argued that Jose never abused his children, and that the brothers were motivated by money.

Recently, two new pieces of evidence have emerged that the brothers and their supporters say add weight to the claims of abuse. In 2023, a former member of the boy band Menudo, Roy Rossello, revealed that Jose Menendez, a record executive, drugged and raped him when Rossello was 14 years old. In addition to that, a letter purportedly written by Erik Menendez to his cousin in 1988, less than a year before the killings, was unearthed. In the letter, Menendez refers to the sexual abuse, writing, "Every night I stay up thinking he might come in."

Last year, the brothers filed a writ of habeas corpus, asking for the convictions to be thrown out based on new evidence, writing in a brief, "The new evidence not only shows that Jose Menendez was very much a violent and brutal man who would sexually abuse children, but it strongly suggests that — in fact — he was still abusing Erik Menendez as late as December 1988."

Last week, more than 20 of Erik and Lyle's family members met with Gascon, asking for the brothers to be resentenced under Marsy's Law, which gives crime victims a right to be heard prior to sentencing, as well as to have a say in resentencing hearings. Most of the extended Menendez family say 35 years in prison is more than enough for the brothers, now in their mid 50s, given the abuse they suffered at the hands of their father.

But not all family members agree. Milton Anderson, the 90-year-old surviving brother of Kitty, the brothers' mom, has spoken out against letting his sister's killers go free. "The 'new evidence' Gascón relies on cannot legally justify overturning the murder convictions of Erik and Lyle Menendez, who meticulously planned and executed the cold-blooded murders of both their parents," Anderson's attorney said in a written statement on Thursday. "They shot their mother, Kitty, reloading to ensure her death. The evidence remains overwhelmingly clear: the jury’s verdict was just, and the punishment fits the heinous crime."

I believe what is now California Penal Code § 1172.1 provides the legal basis and sets forth the legal standards for this kind of resentencing.  I am not at all familiar with California resentencing practices, but I would guess that most judges follow the recommendations of prosecutors in these kinds of cases.  But high-profile cases do not always follow the patterns of other cases, and it will be interesting to observe both the process and substance of this notable re-sentencing decision.

Prior recent releated post:

• Kim Kardashian advocates reconsidering Menendez brothers' LWOP sentences just as Los Angeles DA begins to do so

"Governor Kate Brown of Oregon's Historic Use of Clemency: Using Clemency Exactly as It Was Intended"

The title of this post is the title of this new article that I just saw in the latest issue of Lewis & Clark Law Review authored by Mark Cebert and Aliza Kaplan.  Here is its abstract:

In Oregon, executive clemency is among the most expansive, yet historically underused, power a governor possesses.  Yet, across her two terms as Oregon’s 38th governor, Governor Kate Brown exercised her power of executive clemency a record 61,777 times, dwarfing the clemency use of her predecessors and her contemporaries in other states.  Governor Brown’s proactive approach to clemency presents a model for executive involvement in criminal justice reform and aligns with her beliefs of a redemptive and rehabilitative criminal legal system.  In this Article, we examine Governor Brown’s use of clemency, analyzing what her stated and implied rationales reveal about her concerns for the nuanced impacts of criminal sanctions, as well as for the Oregonians most impacted by the criminal legal system.  We contextualize Governor Brown’s use of clemency with her predecessors and compare the constitutional structure and use of clemency in Oregon with other states.  We detail and examine Governor Brown’s grants of clemency by type: pardons, commutations, reprieves, and remissions.  We discuss the media’s response to Governor Brown’s historic exercise of her clemency power, and finally, in Governor Brown’s own words, discuss the future of clemency in Oregon and beyond.

Ninth Circuit panel reverses 168-month sentence of Michael Avenatti based on various guideline issues

As reported in this Courthouse News Service piece, "Michael Avenatti, who gained notoriety while representing adult film actress Stormy Daniels in her legal dispute with then-President Donald Trump, earned a rare legal victory Wednesday when a Ninth Circuit panel threw out his 14-year sentence for stealing millions of dollars from his former clients." Here is more about the ruling:

It is longest of three prison sentences the 53-year-old Avenatti is currently serving. He was given four years for stealing money Daniels was due for a tell-all book, and 30 months for trying to extort Nike....

The three-judge panel found the trial judge in Orange County made a number of errors in sentencing the disbarred lawyer.  For one thing, in calculating the amount of money Avenatti stole from his clients, the judge "should have accounted for the value of his legal services and costs, as well as the value of certain payments he made to victims," the appellate judges wrote in their 9-page ruling.

"By finding that Avenatti’s victims “lost” the full settlement value without accounting for Avenatti’s fees and costs, the district court enhanced Avenatti’s sentence based on pecuniary harm that did not occur, and did not 'result from [Avenatti’s] offense,'" the judges wrote.

In addition, the panel found U.S. District Court Judge James Selna abused his discretion in refusing to "credit (and thus deduct from the losses) the value of payments Avenatti made to Geoffrey Johnson, Alexis Gardner, and Gregory Barela after he misappropriated their settlements. These too, should be accounted for on remand."

U.S. Circuit Judges Michelle Friedland, a Barack Obama appointee, and Roopali Desai, a Joe Biden appointee, made up the panel along with U.S. District Judge Karen E. Schreier, sitting with the panel by designation from the District of South Dakota. They did reject a few arguments Avenatti had made in his appeal, including the assertion that the Nike conviction wasn't relevant conduct.

The full (unpublished) opinion is available at this link.

"Richter's Scale: Proving Unreasonableness Under AEDPA"

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

No provision is more central to the administration of the “Great Writ” of habeas corpus than Section 2254(d) of the Antiterrorism and Effective Death Penalty Act, which limits a federal court’s ability to grant relief on a claim already adjudicated by a state court.  Before granting relief, the statute provides, a federal court must decide that its state counterpart acted unreasonably.  But that only raises the same questions that have plagued lawyers for centuries. What does it mean to be unreasonable? How can one prove unreasonableness?  Two of the landmark decisions applying the statute — Harrington v. Richter and Wilson v. Sellers — have addressed these questions in contexts where state courts did not explain their reasoning.

In their wake, however, significant confusion has arisen about how reasonableness can be determined when a state court does explain itself.  To make matters worse, the Supreme Court’s cases confronting such circumstances laid down seemingly irreconcilable rules.  As a result, at least three separate approaches have emerged in the lower courts.  In this Article, I argue that “unreasonableness” consists in committing a “qualifying error,” and that a prisoner can surmount Section 2254(d)’s barrier to relief by proving such an error either directly or through circumstantial evidence.  This approach not only harmonizes the tension between several lines of habeas cases but also gives each a much stronger footing in the text of the statute and the broader structure of federal habeas corpus.

Federal judge refuses to interfere with South Carolina's clemency process

I flagged in this recent post the notable request by a condemned South Carolina inmate for a federal judge to take away the clemency power from the SC Governor.  Richard Moore argued that the Gov could not fairly consider his request to commute his death sentence to a life sentence because the Gov had been Attorney General overseeing efforts to uphold Moore’s death sentence.  Yesterday, as detailed in this local press piece, this request was rebuffed:

A federal judge has ruled that Gov. Henry McMaster will retain his right to be the final judge of clemency for a death row inmate even though he once claimed to have no intention of doing so.  “The Court is confident... Governor McMaster will give full, thoughtful, and careful consideration to any clemency petition filed by Moore, giving both comprehensive and individualized attention to the unique circumstances of his case,” wrote U.S. District Court Judge Mary Geiger Lewis in a ruling issued Monday.....

Moore, 59, is scheduled to be executed by lethal injection on Nov. 1. He was sentenced to death in 2001 for shooting and killing James Mahoney, a Spartanburg County store clerk, during an armed robbery two years prior....

Legal precedent did not support removing a governor’s power to grant clemency, contained in the state constitution, just because he had served as an attorney general, Lewis wrote....  Lewis’ ruling came after she took the extraordinary step of requesting the governor to submit an affidavit to the court swearing that he would carefully consider Moore’s clemency request.

In a carefully worded affidavit, McMaster wrote that “understanding that executive clemency is purely a matter of mercy and grace within the exclusive authority and solemn discretion bestowed up the Governor alone... it is and has been my intention and commitment to take care to understand the issues presented, including those from my review and consideration of applications, petition, and request for clemency presented to me by or on behalf of a condemned inmate.”

Moore’s lawyers told The State that they intend to appeal the decision to the 4th Circuit Court of Appeals.

The full 10-page ruling in Moore v. McMaster, No. 3:24-5580-MGL (DSC Oct. 21, 2024) (available for download below) makes for an interesting read. Here are a few notable passages:

As an initial matter, Moore misconstrues Woodard as holding the minimal procedural safeguards guaranteed by the Due Process Clause include notice and an opportunity to be heard before an impartial decision-maker. This standard is unsupported by Woodard, which merely requires the Court to determine whether a state’s clemency procedures are arbitrary or based upon whim. 523 U.S. at 289 (“[S]ome minimal procedural safeguards apply to clemency proceedings. Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.”)....

Even if the Court were to employ the standard set forth by Moore, however, and hold the minimal procedural safeguards guaranteed by the Due Process Clause include Moore “having his clemency application considered and evaluated by an impartial, open-minded, and unbiased decision-maker[,]” Moore’s Motion at 1, the Court is confident — based on the full context of Governor McMaster’s public statement and his declaration — Governor McMaster will give full, thoughtful, and careful consideration to any clemency petition filed by Moore, giving both comprehensive and individualized attention to the unique circumstances of his case.

Download Moore v. McMaster clemency ruling

Supreme Court grants cert on (im)permissible factors for revocation of supervised release

The US Supreme Court released this order list this morning with a few cert grants.  The grants concerning challenges to actions by the EPA are likely to get a lot more attention than the one criminal case grant.  But sentencing fans should be intrigued by the grant in Esteras v. United States.  Here is how John Elwood described the case in a past "relist watch" post at SCOTUSblog: 

In setting forth factors a court may consider in revoking a term of supervised release and ordering a person to serve a prison sentence for violating a supervised-release condition, the supervised-release statute, 18 U.S.C. § 3583(e), cross-references some, but not all, subprovisions of 18 U.S.C. § 3553(a).  Congress omitted the factors set forth in Section 3553(a)(2)(A) — the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense.  Edgardo Esteras contends that five courts of appeals, including the 6th Circuit in his case, have concluded that district courts may rely on the Section 3553(a)(2)(A) factors, but four other courts of appeals have concluded that they may not.  The government contends that courts can properly consider such factors and that “[a]ny modest disagreement among the courts of appeals on the question presented has no practical effect.”

Put in (fancy?) punishment theory terms, Congress only expressly stated that utilitarian, crime-control considerations (deterrence, incapacitation, rehabilitation) are to be considered in supervised release revocation proceedings, but many circuits seems fine if judges also consider retributivist, just-desert matters in this context.  In many respects, this case feels like the flip side of the Tapia case from nearly 15 years ago where SCOTUS was focused on statutory sentencing factors at initial sentencing.  The Court in Tapia unanimously held that the "Sentencing Reform Act precludes federal courts from imposing or lengthening a prison term in order to promote a criminal defendant’s rehabilitation."

Speculating about many SCOTUS relists in Eighth Amendment capital case concerning intellectual disability

Ian Millhiser has this interesting new Vox piece discussing the oft-relisted Supreme Court case of Hamm v. Smith under the headline "The strange case that the Supreme Court keeps refusing to decide: A mysterious Supreme Court case could change everything about criminal punishment." I recommend the lengthy piece in full, and here is how it gets started (with links from the original):

For more than a year, Joseph Clifton Smith, a man who says he is intellectually disabled, has sat on death row, waiting to find out if the Supreme Court will greenlight his execution.  Smith’s case, known as Hamm v. Smith, first arrived on the Court’s doorstep in August 2023.  Since then, the justices have met more than two dozen times to decide what to do about the case, and each time they’ve put the decision off until a future meeting.

No one outside of the Court can know for sure why the justices keep delaying, but if you follow the Court’s Eighth Amendment cases closely, it’s easy to see how the Hamm case could open up all kinds of internal rifts among the justices.

The Eighth Amendment, which has a vague ban on “cruel and unusual punishments,” is at the center of the Hamm case because, for decades, the Court has held this amendment forbids executions of intellectually disabled offenders (and offenders who commit a crime while they are juveniles). The idea is that both groups have diminished mental capacity, at least as compared to non-disabled adults, and thus bear less moral responsibility even for homicide crimes.

That idea, however, has long been contested by the Court’s various ideological factions, and the Hamm case potentially reopens up all of the Court’s issues with the amendment at once. Indeed, in the worst-case scenario for criminal defendants, the justices could potentially overrule more than 60 years of precedents protecting against excessive punishments.

This Vox piece goes on to highlight how the Hamm case potentially highlights how modern Eighth Amendment precendents does not jibe with more originalist views of the Cruel and Unusual Punishments clause.  Here is part of Millhiser's explanation:

[I]t’s possible that the Court is fighting over what to do with the Hamm case because many of the justices want a wholesale revolution in Eighth Amendment law.

Beginning in the mid-20th century, the Supreme Court maintained that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”  Thus, as a particular method of punishment grew less common, the Court was increasingly likely to declare it cruel and unusual in violation of the Constitution.

At least some members of the Court’s Republican majority, however, have suggested that this “evolving standards of decency” framework should be abandoned.  In Bucklew v. Precythe (2019), the Court considered whether states could use execution methods that risked causing the dying inmate a great deal of pain. Justice Neil Gorsuch’s majority opinion, which held that potentially painful methods of execution are allowed, seems to exist in a completely different universe than the Court’s Eighth Amendment cases that look to evolving standards.

While the Court’s earlier opinions ask whether a particular form of punishment has fallen out of favor today, Gorsuch asked whether a method of punishment was out of favor at the time of the founding....  What makes Bucklew confusing, however, is that it didn’t explicitly overrule any of the previous decisions applying the evolving standards framework.  So it’s unclear whether all five of the justices who joined that opinion share a desire to blow up more than a half-century of law....  Bucklew looms like a vulture over any cruel and unusual punishment case heard by the Court, as it suggests that the Republican justices may hit the reset button on all of its Eighth Amendment precedents at any time.

Thanks to some helpful readers, I have been keeping an eye on Hamm v. Smith, and Millhiser seems right that something notable is afoot behind closed SCOTUS doors.  My uninformed guess is that a few Justices, most likely Justice Alito, Gorsuch and/or Thomas, may be actively seeking to encourage their colleagues to take up the case as an opportunity to review and recast Eighth Amendment, but they are having a hard time getting a fourth vote for cert. And that challenge may reflect not only the concern other Justices may have about overturning modern Eighth Amendment precedents, but also the fact that a rigorous approach to Eighth Amendment originalism could possibly expand some rights against excessive punishments (according to some academics)

Amid serious claims of innocence, Texas Supreme Court halts execution based on legislative subpoena

This local article, headlined "In stunning move, Texas Supreme Court halts Robert Roberson execution in 'shaken baby' case," provides an effective review (with links) of the legal drama yesterday that ultimately halted a closely watched execution date. Here are just some excerpts of just some part of quite a story:

The Texas Supreme Court late Thursday spared Robert Roberson on the night he was set to die by lethal injection, a rare and head-spinning eleventh-hour decision in one of the most controversial death penalty cases in years.

The all-Republican court's decision comes in response to a first-of-its-kind legal maneuver in which a state House committee voted to subpoena Roberson for a hearing scheduled days after his execution date. It could buy Roberson — who was set to become the first American executed for a conviction involving "shaken baby" syndrome at 6 p.m. Thursday — weeks or months to live as court proceedings continue to play out.

The order caps a whirlwind two-day effort from a bipartisan coalition of lawmakers who feverishly fought to keep a man they believe to be innocent from the execution chamber and riveted the nation's attention on Texas' application of the death penalty. 

The House representatives who led the movement expressed relief in a Thursday night joint statement. "For over 20 years, Robert Roberson has spent 23.5 hours of every single day in solitary confinement in a cell no bigger than the closets of most Texans, longing and striving to be heard," said Reps. Jeff Leach, R-Plano, and Joe Moody, D-El Paso. "And while some courthouses may have failed him, the Texas House has not." 

The drama Thursday took off when Leach and Moody successfully asked a Travis County state District Court to temporarily stay the execution to allow Roberson to answer a summons that the House Committee on Criminal Jurisprudence unanimously approved Wednesday.

The Texas Court of Criminal Appeals shortly thereafter overturned that lower court's approval of the lawmakers' request in a 5-4 decision, and minutes later Leach and Moody filed an emergency motion with the Texas Supreme Court to intervene, arguing the Criminal Appeals Court lacked jurisdiction over a ruling made in a civil court. Leach posted on social media before the state Supreme Court's decision that he was "Praying as if everything depends on God, which it does. But working as if everything depends on us."

The state Supreme Court agreed with the lawmakers, with Justice Evan Young writing in a concurrence that "the underlying criminal-law matter is within the Court of Criminal Appeals’ authority, but the relief sought here is civil in nature, as are the claims that have been presented to the district court."

Roberson's case for a reprieve has drawn widespread support from more than 80 Texas House members as well as from U.S. Supreme Court Justice Sonia Sotomayor, Dr. Phil and others.  After the U.S. Supreme Court rejected a petition to delay the execution around 4 p.m. Thursday, Sotomayor wrote in a statement that "mounting evidence suggests ... Roberson committed no crime at all."  Sotomayor and others have urged Gov. Greg Abbott to grant Roberson a 30-day reprieve, but the governor has remained silent on the case.

"Grants Pass And The Pathology Of The Criminal Law"

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

Last Term, the Supreme Court held that cities may, consistent with the Eighth Amendment, criminalize sleeping in public, even for people who have no other alternatives.  That decision, Grants Pass v. Johnson, ostensibly rests on a formalistic distinction between criminalizing status, such as the status of homelessness, and criminalizing conduct, such as sleeping in public.  This distinction fatally undermines the Eighth Amendment’s “status crimes” doctrine.  The majority opinion has been decried by homeless advocates as inhumane and counterproductive, and the case produced a pointed dissent that has been lauded by court watchers.

As this Essay explains, however, the outcome in Grants Pass was necessitated not by the merits of a thin status–conduct distinction, but by judicial deference to an ever-expanding criminal law.  The dissent’s preferred interpretation of the Eighth Amendment (in which the laws at issue impermissibly punish the “status” of homelessness) arguably implicates three distinct constitutional claims: one about the wrongfulness of punishing status, one about the wrongfulness of punishing involuntary conduct, and one about the wrongfulness of punishing in the absence of culpability.  Once disaggregated, each of those claims proves to be in tension with contemporary criminal practices — neither status, nor involuntariness, nor lack of culpability currently prevents the infliction of criminal punishment.  In other words, the dissent’s preferred interpretation would have unsettled a considerable amount of criminal law. Grants Pass can therefore best be understood as revealing the Supreme Court’s reticence to check states’ expansive — and expanding — approach to criminal liability.

So understood, the Grants Pass case provides an important supplement to the literature on criminal law’s political pathology, demonstrating that a federal constitutional solution is likely out of reach under the current court.  Just as legislatures and prosecutors drive expansive criminalization, expansive criminalization narrows the range of constitutional remedies, even for obvious injustices such as punishing the unhoused for sleeping.  Prescriptively, the Essay calls for homeless advocates to step away from the Eighth Amendment and toward doctrines — particularly under state constitutions — that more explicitly engage with the agency of unhoused individuals.

New Prison Policy Initiative report, "One Size Fits None: How ‘standard conditions’ of probation set people up to fail"

Writing for the Prison Policy Initiative, Emily Widra has this notable new report titled "One Size Fits None: How ‘standard conditions’ of probation set people up to fail." The report's extended subtitle summarizes its coverage: "Courts and probation agencies impose a standard set of rules on everyone under their supervision, before tacking on any extra restrictions.  Our national review finds these mandatory rules are often unnecessarily burdensome and incredibly vague, making it all too easy to 'fail' at probation and land behind bars."  The full report is worth a full read, and here is how ite gets started (with links from the original):

More than 1 in 10 people admitted to state prisons every year have committed no new crime, but have simply broken one or more of the many conditions, or rules, of their probation.  All of this unnecessary incarceration is the predictable result of widely-adopted probation conditions that are so vaguely defined, so burdensome, and so rigidly applied that they actually broaden the scope of what counts as “recidivism.”  Through these conditions, courts and probation authorities create punishable offenses that go far beyond criminal law, setting people up to fail.  And because the vast majority of people under correctional control are on probation — 2.9 million people, far surpassing the 1.9 million people incarcerated — these trap-like conditions make probation a major driver of mass incarceration, not the “alternative” it’s supposed to be.

Shrinking the massive probation system — and the number of people incarcerated from community supervision — is central to ending mass incarceration.  Doing so requires challenging existing “standard conditions” that (a) are often in conflict with one another, (b) exacerbate the challenges people on probation are already facing, and (c) empower probation officers — rather than courts — to make subjective decisions that can lead to revocation and incarceration. Examining these conditions clarifies why probation often functions as an on-ramp to incarceration instead of an alternative, and can help advocates and policymakers reorient probation systems away from incarceration.

Unfortunately, standard probation conditions are often difficult to locate and parse, vary between jurisdictions, and use complicated and unclear language, so to aid in this effort, we collected and analyzed the standard conditions for 76 jurisdictions across all 50 states and Washington, D.C., creating one of the most comprehensive compilations of these rules to date.

A couple more GVRs and lots more cert denials in second full SCOTUS order list of OT 2024

The Supreme Court formally entered its second week of its new term, October Term 2024, with this order list mostly defined by a long list of cert denials.  The order list begins with two new G(ranted), V(acated), R(emanded) cases perhaps of note, with one citing Rahimi and another citing Erlinger. 

Late last week, John Elwood had this long post at SCOTUSblog reviewing relists drawing from the last order list titled "Fourteen cases to watch from the Supreme Court’s end-of-summer "long conference'."  Here was the one sentencing case of particular note from his accounting (which included three other criminal procedure cases among his "cases to watch"):

Last up is Esteras v. United States. In setting forth factors a court may consider in revoking a term of supervised release and ordering a person to serve a prison sentence for violating a supervised-release condition, the supervised-release statute, 18 U.S.C. § 3583(e), cross-references some, but not all, subprovisions of 18 U.S.C. § 3553(a). Congress omitted the factors set forth in Section 3553(a)(2)(A) — the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense. Edgardo Esteras contends that five courts of appeals, including the 6th Circuit in his case, have concluded that district courts may rely on the Section 3553(a)(2)(A) factors, but four other courts of appeals have concluded that they may not. The government contends that courts can properly consider such factors and that “[a]ny modest disagreement among the courts of appeals on the question presented has no practical effect.”

Esteras is not on the list of cert denials this time around, so that is a case to continue to watch.

Intriguing (though likely doomed) effort to alter South Carolina clemency process by condemned inmate

This new AP article reports on an interesting claim brough by a condemned inmate in South Carolina.  Here are the details:

A South Carolina inmate scheduled to be executed in just over three weeks is asking a federal judge to take away the power of granting clemency from the governor who is a former state attorney general and place it with a parole board.  The South Carolina constitution gives the governor the sole right to spare an inmate’s life, and Gov. Henry McMaster’s lawyers said he intends to retain it.

Lawyers for Richard Moore are arguing that McMaster cannot fairly consider the inmate’s request to reduce his death sentence to life without parole because for eight years starting in 2003 he was the state’s lead prosecutor and oversaw attorneys who successfully fought to uphold Moore’s death sentence. “For Moore to receive clemency, McMaster would have to renounce years of his own work and that of his former colleagues in the Office of the Attorney General,” the attorneys wrote in asking a federal judge to pause the execution until the matter can be fully resolved.

McMaster has taken tough-on-crime stances and also in the past said he is against parole. The governor said in 2022 that he had no intention to commute Moore’s sentence when an execution date was a possibility, Moore’s attorneys said in court papers filed Monday.

Lawyers for McMaster said he has made no decision on whether to grant Moore clemency, and courts have repeatedly said attorneys general who become governors do not give up their rights to decide whether to set aside death sentences.  Currently, nine states, including South Carolina, are run by former attorneys general.  Among the top prosecutors cited by the state who later become governors and made decisions on clemency is former President Bill Clinton in Arkansas....

Moore, 59, is facing the death penalty for the September 1999 shooting of store clerk James Mahoney. Moore went into the Spartanburg County store unarmed to rob it, and the two ended up in a shootout after Moore was able to take one of Mahoney’s guns. Moore was wounded, while Mahoney died from a bullet to the chest. Moore didn’t call 911. Instead, his blood droplets were found on Mahoney as he stepped over the clerk and stole money from the register.

State law gives Moore until Oct. 18 to decide or by default that he will be electrocuted.  His execution would mark the second in South Carolina after a 13-year pause because of the state not being able to obtain a drug needed for lethal injection.  No South Carolina governor has ever granted clemency in the modern era of the death penalty.  McMaster has said he decides each case on its merits after a through review....

McMaster has said he will follow longtime tradition in South Carolina and wait until minutes before an execution is set to begin to announce whether he will grant clemency in a phone call prison officials make to see if there are any final appeals or other reasons to spare an inmate’s life.

And his lawyers said his decision on whether to spare Moore life will be made under a different set of circumstances than his decision to fight to have Moore’s death sentence upheld on appeal. “Clemency is an act of grace,” the governor’s attorneys wrote. “Grace is given to someone who is undeserving of a reprieve, so granting clemency in no way requires the decisionmaker to ‘renounce’ his previous work.”

Notably, a divided Supreme Cout in Ohio Adult Parole Authority v. Woodard interpretation the Constitution to mean that "some minimal procedural safeguards apply to clemency proceedings." But I would be shocked if that precedent (or any others) will enable the condemned defendant to prevail in this case.

Supreme Court reveals (predictable) split during argument on Glossip capital case

Supreme Court watchers who know the current Justices' patterns, especially in capital cases, would have expected Justices Barrett and Kavanaugh to be likely key swing votes in the Glossip case argued today (previewed here).  This round-up of some press accounts of today's Glossip argument suggest those Justices are likely to deterimine the case's fate:

From NPR, "Okla. AG seeks new trial for death row inmate, but Supreme Court seems split"

From SCOTUSblog, "No clear decision as justices debate Richard Glossip’s death sentence"

From the New York Times, "Splintered Supreme Court Wrestles With Case of Oklahoma Death Row Inmate"

From the Washington Examiner, "Supreme Court appears divided over Oklahoma death row appeal"

From the Washington Post, "Supreme Court closely divided on new trial for Oklahoma death row inmate"