Thursday, December 02, 2021

Split Florida Supreme Court upholds imposition of maximum sentence based in part on defendant's claim of innocence

Via a lengthy divided ruling, the Florida Supreme Court handed down some interesting opinion today in Davis v. Florida, No. SC19-716 (Fla. Dec. 2, 2021) (available here).  Because the various judges fight over how to characterize the case and the ruling, I will just reprint the words of the leading opinions.  First the majority, via Chief Justice Canady:

We accepted jurisdiction to answer the certified question, but because the district court did not pass upon the entirety of the question as framed, we first rephrase it based on the specific circumstances presented by this case: 

DOES A TRIAL COURT, WHEN IMPOSING A SENTENCE ON A DEFENDANT WHO HAS VOLUNTARILY CHOSEN TO ALLOCUTE AND MAINTAIN HIS INNOCENCE AT THE SENTENCING HEARING, VIOLATE THE DEFENDANT’S DUE PROCESS RIGHTS BY CONSIDERING THE DEFENDANT’S FAILURE TO TAKE RESPONSIBILITY FOR HIS ACTIONS?...

We hold that when a defendant voluntarily chooses to allocute at a sentencing hearing, the sentencing court is permitted to consider the defendant’s freely offered statements, including those indicating a failure to accept responsibility. Thus, we answer the rephrased question in the negative and approve the result in the decision on review.

Now the chief dissent via Justice Polson:

I dissent from the majority’s decision holding that a trial court can punish a defendant for his lack of remorse during a sentencing proceeding.  This result is inconsistent with our precedent interpreting article I, section 9 of the Florida Constitution, the consensus among the district courts of appeal, and has no basis in our statutory sentencing scheme. Showing remorse is admitting you did something wrong — an admission of guilt.  And increasing a defendant’s sentence based on the failure to show remorse is punishing a defendant for failing to admit guilt.  Punishing someone unless they confess guilt of a crime is a violation of due process and the right against self-incrimination.  Accordingly, I would hold that a trial court violates a defendant’s constitutional right to due process and right against self-incrimination where it penalizes a defendant for the failure to admit guilt.

Notably, more two decades ago, the US Supreme Court held Mitchell v. US, 526 U.S. 314 (1999), that it was unconstitutional to use "petitioner’s silence against her in determining the facts of the offense at the sentencing hearing."  Presumably that ruling in part explains why the majority hear makes much of the defendant voluntarily choosing to allocute and assert innocence.  

December 2, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Wednesday, December 01, 2021

Calling out SCOTUS for failing to take up circuit splits over the federal sentencing guidelines

In this post last month, I noted this notable new paper by Dawinder Sidhu titled "Sentencing Guidelines Abstention," which astutely assails the US Supreme Court for its "refusal to review [circuit] splits involving federal sentencing policy."  I am now pleased to see Dawinder putting forward his important points in this new HIll commentary headlined "The Supreme Court's criminal justice blind spot."  I recommend the full piece and here are excerpts:

A primary role of the Supreme Court is to resolve differences among the federal appeals courts when those courts reach different conclusions on the same questions of law.  But for 30 years, the Supreme Court has refused to perform this essential role when the disagreements concern federal sentencing guidelines.  The court’s inaction has allowed uncertainty and disparities to fester in this critical area of criminal justice....

In [a] 1991 opinion, the court ... added extraneous language [in an early case address a conflict over a guideline that the US Sentencing Commission was in the process of amending], writing that because the commission possessed authority to amend the guidelines in response to interpretive conflicts, the court should be “more restrained and circumspect in … resolving such conflicts.”

Because this language was unnecessary to the disposition of the case, it should have no precedential weight.   At most, this case supports the unremarkable proposition that, when the commission’s amendment process is under way regarding a guideline that triggers a judicial conflict, the court should exercise restraint and allow the commission to complete its amendment process.  The court regularly abstains from interfering with parallel administrative or state proceedings.  Deferring to the commission during the course of a simultaneous amendment process would be consistent with this respect for alternative decisional bodies.

The problem, however, is that the court has refused to hear all guideline conflicts, not just those the commission is actively addressing.  In adopting this broad position, the court has ceded its role of ironing out judicial conflicts to the commission.  As then-Judge Samuel Alito recognized [in this FSR article], “No other federal agency — in any branch — has ever performed a role anything like it.”  Indeed, the court does not forgo consideration of a case when Congress or an administrative agency may one day amend a statute or regulation producing a conflict.

This anomaly has real-life consequences.  This year, Justices Neil Gorsuch and Sonia Sotomayor believed that the court should not hear a sentencing guidelines case, notwithstanding the fact that it raised an “important and longstanding split” among the federal appeals courts. They reasoned that the commission should “address the issue in the first instance.”  But the justices conceded that until the commission resolves the split, “similarly situated defendants may receive substantially different sentences depending on the jurisdiction in which they are sentenced,” with the disparities ranging by a factor of “years” and spanning from a “fixed-term” to a “life sentence.”

This knowingly perpetuated uncertainty and disparity in the federal courts.  To make matters worse, the court did so knowing that the commission has been without a quorum for almost three years. As such, the court punted a conflict to an agency incapable of amending the guidelines or resolving conflicts.  This isn’t the first time the commission has lacked a quorum for a significant period.  Even when the commission is fully functional, it only has the capacity to take on some of the conflicts that exist.  This is not to disparage the commission but to call into question the Supreme Court’s hoisting the responsibility of addressing guideline conflicts onto the shoulders of a regularly shorthanded commission.

Anyone interested in coherence and consistency in criminal justice should be troubled by the court’s refusal to review conflicts involving the federal sentencing guidelines.  It is one thing to be discerning in case selection; it is another to step aside altogether from guideline cases that implicate the fair and uniform administration of justice.

December 1, 2021 in Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Friday, November 26, 2021

Pervis Payne has death sentences set aside (based on intellectual disability) three decades after SCOTUS affirmed them (with focus on victim impact evidence)

This local article reports on a notable development in a capital case that caught my attention because it involves a defendant who was involved in a major development in Supreme Court capital jurisprudence more than 30 years ago.  The press piece is headlined "Pervis Payne death penalty set aside, judge will decide if life sentences are concurrent or consecutive," and here are excerpts:

Rolanda Holman remembers being 13 years old, listening to the judge sentence her brother, Pervis Payne, to death by the electric chair. The judge said, “May God have mercy on his soul," Holman recalled.

Thirty-four years later, Holman and her family know that Payne won't be dying by the death penalty after Judge Paula Skahan signed an order Tuesday vacating his capital sentence....

Skahan's action came after the Shelby County District Attorney's office announced Thursday that it was dropping its pursuit of the death penalty against Payne after a state expert examined Payne and records "and could not say that Payne's intellectual functioning is outside the range for intellectual disability," according to a news release.

Both the U.S. and Tennessee supreme courts have ruled that it is unconstitutional to execute someone with an intellectual disability. In April, Tennessee legislators created a law allowing death row inmates like Payne to appeal their sentences on intellectual disability grounds. Since the court finds that Payne is a person with intellectual disability, his capital sentence must be vacated, Skahan wrote in her order....

Payne will serve two life sentences in prison for the murders of Charisse and Lacie Christopher. However, whether those sentences will be concurrent or consecutive is currently being debated.

Steve Jones, assistant district attorney, argued Tuesday that a transcript of the original sentencing 34 years ago shows the judge saying that Payne's sentences ought to be served consecutively.

That, [attorney Kelley] Henry said, would make Payne ineligible for parole until he is 85. Henry argued, however, that precedent shows the court has the discretion to rule his sentences should be carried out at the same time, which would make him eligible for parole in about six years. “Consecutive sentencing would be an effective life without parole for Mr. Payne and we suggest that would not be justice for him and his family," Henry said. "Elder Carl Payne deserves a chance to hug his son as a free man. And we will continue our fight to exonerate Mr. Payne.”

A hearing will be held Dec. 13 to determine whether the life sentences should be held consecutively or concurrently.

Payne, who is being held in Riverbend Maximum Security Institution in Nashville, is convicted of the 1987 deaths of Millington woman Charisse Christopher, 28, and her 2-year-old daughter, Lacie. Christopher’s 3-year-old son, Nicholas, survived multiple stab wounds in the brutal attack that took place in Christopher’s apartment.

Payne has maintained his innocence. In his 1988 trial, Payne said that he discovered the gruesome crime scene after hearing calls for help through the open door of the apartment. He said he bent down to try to help, getting blood on his clothes and pulling at the knife still lodged in Christopher's throat. When a white police officer arrived, Payne, who is Black, said he panicked and ran, fearing he would be seen as the prime suspect.

It is quite remarkable that it took newly 20 years for Payne to be moved off death row after the US Supreme Court ruled in Atkins v. Virginia, 536 U.S. 304 (2002), that the Eighth Amendment precluded the execution of the intellectually disabled.  But it is perhaps even more remarkable that this is the same defendant whose case made it all the way to the Supreme Court more than 30 years ago. In Payne v. Tennessee, 501 U.S. 808 (1991), the Supreme Court reversed prior precedents limiting victim impact evidence and held "that, if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar."  Is this a fitting time for the aphorism "what goes around comes around," especially if it is a capital case?

November 26, 2021 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

Saturday, November 20, 2021

Clemency criticisms as Prez Biden's record is now turkeys 2, humans 0

More than a decade ago, it took a couple years of Thanksgiving turkey pardon rituals before Prez Obama started receiving considerable grief for only granting clemencies to birds and not humans.  But I suppose we have made some progress in the last decade, as now one can find a few year-one commentaries assailing the Prez Biden's clemency record that is just fit the the farm and not for families:

From Marijuana Moment, "Biden Pardons Turkeys, But White House Has ‘Nothing New’ On Relief For Marijuana Prisoners"

From the New York Post, "Biden laughs off question about clemency for humans before pardoning turkeys"

From the Star Tribune, "When it comes to human pardons, thanks for nothing: President Joe Biden hasn't just not pardoned anyone — he's just letting the requests sit unanswered."

Disappointingly, there is still a lot more discussion of the names and fate of the turkeys who were "pardoned" than of the broken federal clemency process and the thousands of clemency requests so far ignored by the Biden Administration.  Sigh.

November 20, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, November 19, 2021

Can Oklahoma's current governor really preclude all future governors from further clemency grants for Julius Jones?

I just had a chance this morning to look at this actual executive order that Oklahoma Governor J. Kevin Stitt signed to commute the death sentence of Julius Jones to life imprisonment without the possibility of parole.  The document is interesting in part because it states that the Pardon and Parole Board's recommendation of a commutation to a "sentence of life with the possibility of parole" was not authorized by the Oklahoma Constitution or Oklahoma law and that the "Oklahoma Constitution and other laws of the State also do not provide the Governor authority to grant any such recommendation."  But speaking of a lack of authorization, I was especially struck by this additional part of the executive order:

The Governor has the power to grant commutations "upon such conditions and with such restrictions and limitations as the Governor may deem proper .... "  I hereby place the following conditions upon this commutation:

Julius Darius Jones shall not be eligible to apply for or be considered for a commutation, pardon, or parole for the remainder of his life.

In addition to laws prohibiting the Pardon and Parole Board from recommending and the Governor from granting to Julius Jones life with parole, now or in the future, the Pardon and Parole Board's Rules prevent Jones from re-applying for commutation.  Title 515, Chapter 15, Subchapter 15 of the Oklahoma Administrative Code states, "After receiving a favorable commutation of a sentence from the Governor, an Inmate is ineligible to apply for an additional commutation on the same sentence."

Though I strongly dislike and disfavor any policy of ever precluding a person from ever re-applying for clemency, I suppose I can see some viable legal basis for state laws or rules to preclude repeated clemency applications.  But, critically, this order seems to be trying to preclude all future Oklahoma executive officials from being able to even "consider" Jones "for a commutation, pardon, or parole for the remainder of his life."  And at the start of this order, Gov Stitt states his condition even more broadly: "I ... hereby commute the death sentence of Julius Darius Jones to life imprisonment without the possibility of parole, on the conditions that he shall never again be eligible to apply for, be considered for, or receive any additional commutation, pardon, or parole."  (Emphasis added.)

Jones is likely to live in prison for many decades, and further evidence of his innocence or other changed circumstances in the years ahead might want some future governor to consider and possibly grant some other form of clemency.  I do not think there is any legal basis for a current governor to tie the hands of all future governors in the way, but I suspect Jones and his allies will be disinclined to worry or litigate about this future issue while still celebrating his removal from Oklahoma's death row.

A few prior related posts:

November 19, 2021 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Thursday, November 18, 2021

Oklahoma Gov commutes death sentence of Julius Jones, who claims innocence, to life without the possibility of parole

A high-profile Oklahoma capital case involving claims of innocence took a notable turn just hours before a scheduled execution, as reported in this local press piece:

Julius Jones was scheduled to be executed at 4 p.m. Thursday at the Oklahoma State Penitentiary in McAlester. Oklahoma Gov. Kevin Stitt, however, announced at noon Thursday he has commuted Jones' sentence to life without the possibility of parole.

Jones, now 41, has been on death row for more than half of his life for the murder of Paul Howell. Jones has maintained his innocence, saying he was not responsible for the fatal shooting in Edmond in 1999. Jones' family insists he was at home.

The Oklahoma Pardon and Parole Board voted 3-1 on Nov. 1 to recommend Oklahoma Gov. Kevin Stitt grant clemency to Jones and reduce his sentence to life in prison with the possibility of parole....

Amanda Bass, the attorney for Julius Jones released the following statement after Gov. Kevin Stitt commuted Jones' sentence to life without the possibility of parole: "Governor Stitt took an important step today towards restoring public faith in the criminal justice system by ensuring that Oklahoma does not execute an innocent man. While we had hoped the Governor would adopt the Board's recommendation in full by commuting Julius's sentence to life with the possibility of parole in light of the overwhelming evidence of Julius's innocence, we are grateful that the Governor has prevented an irreparable mistake."...

“The governor just announced he’s going to grant clemency,” Tiffany Crutcher announced to the crowd outside the Oklahoma State Penitentiary in McAlester. The crowd erupted in shouts of joy. Supporters broke into tears, including Paige Patton who began to praise, “Thank you, Lord.”

The celebration lessened as Crutcher announced that the Governor's decision was to commute Jones' sentence to life without parole. The fight to prove Jones' innocence is not over, and his supporters will not stop, she said. “Julius will get to see sunlight,” Crutcher said. “Julius will not be underground, he will get to hug his family.”

A few prior related posts:

November 18, 2021 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Wednesday, November 17, 2021

Henry Montgomery (of Montgomery v. Louisiana) finally granted parole at age 75

Henry Montgomery back in 2016 won in the US Supreme Court with his claim that the landmark Eighth Amendment decision in Miller v. Alabama must be applied retroactively. But that win only garnered him a chance to be paroled after serving more than 50 years on a murder charge as a teenager in the early 1960s.   Montgomery was in February 2018 denied parole as detailed in this post, and he was denied parole again in April 2019 as detailed in this post.  But I am pleased to now be able to report that the third time was a charm for Montgomery as reported in this UPI piece headlined "Longtime inmate and key figure in juvenile sentence reforms finally wins parole." Here are some of the details:

A Louisiana man who's spent the vast majority of his life in prison for killing a sheriff's deputy when he was a minor almost 60 years ago -- and whose case has been instrumental in freeing hundreds of inmates who were sentenced to life for crimes as juveniles -- is finally getting his chance to walk free.

Henry Montgomery on Wednesday appeared at his third hearing before a Louisiana parole board. The first two turned him down.  The third gave him his freedom after 57 years behind bars.

For years, advocates have said Montgomery is serving an unconscionably long sentence for a crime he committed as a minor, in spite of state Supreme Court rulings that determined that life sentences for juveniles amount to "cruel and unusual punishment."...

Montgomery was 17 when he shot and killed East Baton Rouge Paris Deputy Charles Hurt in 1963, after the lawman caught him skipping school. He's now 75. He was initially sentenced to death, but that sentence was overturned in 1966 when the Louisiana Supreme Court ruled that he did not receive a fair trial. After a retrial, he was sentenced to life without parole.

Montgomery has been locked up in the Louisiana State Penitentiary, known as "Angola" after the former plantation that occupied the area. "Through his personal growth, maturity, and maintenance of an excellent record of conduct while in prison, Henry proves daily that he is no longer the 17-year-old child he was in 1963," Marshan Allen, national policy director of Represent Justice, said in a tweet before Wednesday's decision....

Montgomery's case was at the center of a legal fight that went all the way to the U.S. Supreme Court, and resulted in a ruling that's allowed nearly 1,000 people who were sentenced to life without parole as a juvenile to be freed....

At his first two parole hearings -- in 2018 and 2019 -- he was denied release. At both hearings, two of the three board members voted to grant him his release from prison and one voted to keep him imprisoned. At the time, parole decisions had to be unanimous. Earlier this year, however, Louisiana changed its law to require only a majority vote if an inmate meets certain conditions -- meaning Montgomery would be freed if he got another 2-1 vote in his favor.

The dissenting voter who voted against releasing Montgomery in 2019 said that he hadn't presented enough programs in prison. But Andrew Hundley, one of the people who was released as a result of Montgomery vs. Louisiana and director of the Louisiana Parole Project, said that Angola did not offer such programs for decades of his sentence. "It was the most violent prison in America.  There wasn't this idea of rehabilitation and that prisoners should take part in programming to rehabilitate themselves," he told The Atlantic. "That culture didn't exist and there weren't programs. You just woke up every day trying not to get killed."

Hundley added that he's felt like it's his "life's work" to get Montgomery and others like him out of prison. "Henry was in prison 18 years before I was born. And I've been home five and a half years now."

November 17, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, November 15, 2021

Noting the SCOTUS "state of capital punishment" without discussing the state of capital punishment

Adam Liptak has this notable new New York Times "Sidebar" piece headlined "In Death Penalty Cases, an Impatient Supreme Court; Recent rulings, including one turning down a death row inmate’s request supported by the prosecution, offer telling glimpses of the state of capital punishment."  Here are excerpts (with a bit of emphasis added):

Two weeks ago, on the same day it heard arguments about the future of abortion rights in Texas, the Supreme Court turned down an appeal from a federal prisoner facing execution.  The move was in one sense routine, as the court has grown increasingly hostile to arguments made by death row inmates.   This became apparent in the final months of the Trump administration, when, after a hiatus of 17 years, the federal government executed 13 inmates.  “Throughout this expedited spree of executions, this court has consistently rejected inmates’ credible claims for relief,” Justice Sonia Sotomayor wrote in a dissent at the time.

The court’s impatience was also evident last week at an argument over whether an inmate’s pastor could pray with and touch him in the death chamber.  Several conservative justices expressed dismay at what they said was last-minute litigation gamesmanship in death penalty cases.

Still, the case the court turned down two weeks ago was exceptional, providing a telling glimpse of the state of capital punishment in the United States.  The court rejected the inmate’s petition even though the prosecution agreed that his case deserved a fresh look.  In an 11-page dissent, Justice Sotomayor, joined by Justices Stephen G. Breyer and Elena Kagan, said the majority had crossed a new bridge. “To my knowledge, the court has never before denied” such relief “in a capital case where both parties have requested it, let alone where a new development has cast the decision below into such doubt,” Justice Sotomayor wrote.

The case concerned Wesley P. Coonce Jr., who was serving a life sentence for kidnapping and carjacking when he helped murder another prisoner in the mental health ward of a federal prison.  A murder committed by an inmate already serving a life sentence is a capital crime, and he was sentenced to death.  Lawyers for Mr. Coonce asked the justices to return his case to an appeals court for reconsideration of his argument that he could not be executed because he was intellectually disabled.  There had been, the lawyers wrote, an important new development that could alter the appeals court’s analysis....

While the majority did not explain its thinking, a 2014 dissent from Justice Samuel A. Alito Jr., joined by Chief Justice John G. Roberts Jr. and Justice Clarence Thomas, provided a hint. Justice Alito wrote that the meaning of the Eighth Amendment should not be determined by “positions adopted by private professional organizations.”  The majority may also have thought that the Biden administration had its own tools to address Mr. Coonce’s case, notably by granting him clemency.

As the title of this post is meant to highlight, I am struggling a bit to see how the denial of cert by SCOTUS in Coonce serves as a "glimpse of the state of capital punishment in the United States."  For starters, the state of capital punishment in the United States is largely one of modern desuetude.  As detailed in this DPIC fact sheet, in 1999 there were 279 death sentences imposed and 98 executions; in 2019 there were 24 death sentences imposed and 22 executions.  Moreover, I am pretty sure Coonce still can have his death sentence reviewed via a 2255 motion and perhaps via other means, so maybe the case really is a "glimpse" into the various means capital defendants have to get their claims reviewed.

Moreover, as highlighted by the clemency point, what this case really shows to me is that the Biden Administration would rather push for courts to take people off death row rather than do it on their own.  After all, if lawyers in the Justice Department have genuinely concluded that Coonce is intellectually disabled, their constitutional oath would seemingly call for them to ask for Prez Biden to moved him off death row since the Eighth Amendment precludes an execution of someone intellectually disabled.  That DOJ is merely urging here a "fresh look" strikes me far more as a "glimpse" into the state of the Biden Administration's actions on capital punishment.

November 15, 2021 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)

Saturday, November 13, 2021

Some clemency news and notes as we enter the holiday season

Regularly readers know that I view, and advocate for, the exercise of clemency to be a regular part of the work of chief executives, and that I consider regular use of the clemency power to be all that more important in our modern era of mass incarceration and mass punishment and massive collateral consequences.  But, since it seems some chief executives seem to wait until the holiday season to think about clemency work, I will declare that the holiday season has begun. 

Of course, the holiday season often includes my annual complaints about turkey pardons getting more attention than humans with real strong clemency cases.  But, encouragingly, some of past week's news suggests advocates, and even some chief executives, are already getting into the holiday clemency spirit:

From the AP, "North Carolina man wrongfully imprisoned 24 years pardoned"

From Channel3000, "‘A pardon can be a powerful message’: Gov. Evers issues 29 more pardons, bringing total to 307"

From Marijuana Moment, "Senators Urge Biden To Grant Mass Pardon For Thousands Of Marijuana Cases"

From the News Station, "President Clinton’s Pardon Transformed Me Into A Clemency Crusader"

From PIX11, "Advocates want Hochul to use clemency powers for older inmates"

From the Tulsa World, "Five Oklahoma Republican lawmakers urge clemency for Julius Jones"

For anyone intrigued by all this attention to clemency for real people, here are a few obligatory turkey headlines:

From the Alabama News Network, "From Gov. Kay Ivey Pardons Turkeys in Time-Honored Alabama Tradition"

From the Indianapolis Star, "Indiana turkeys will travel to White House for Biden's Thanksgiving presidential pardon"

From People, "Joaquin Phoenix, Billie Eilish Petition Joe Biden to Allow Pardoned Turkey to Live at Sanctuary"

Last but certainly not least, I am pleased to be able to highlight in this context that a terrific pardon project on which I have been working here in Ohio has been officially expanded as of this past week.  This news release from the Governor of Ohio, "Governor DeWine Expands Expedited Pardon Project to Include Law Partners in Cleveland, Dayton, and Cincinnati," starts this way:

Ohio Governor Mike DeWine today announced the expansion of the Ohio Governor’s Expedited Pardon Project, which eliminates administrative hurdles and provides free one-on-one help for qualified citizens seeking legal absolution for past criminal offenses. 

Governor DeWine launched the Ohio Governor's Expedited Pardon Project in 2019 in partnership with the Ohio Department of Rehabilitation and Correction, The Ohio State University Moritz College of Law, and the University of Akron School of Law to fast-track the pardon applications of specific candidates who have become law-abiding and contributing members of society.

The expansion of the program enlists new law partners to reach more potential pardon candidates and to help guide candidates through the pardon process. 

A few prior posts about the Ohio "Expedited Pardon Project":

November 13, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, November 09, 2021

Rounding up reviews of SCOTUS oral arguments on religious liberty in death chamber

On Tuesday morning, the US Supreme Court heard oral argument in Ramirez v. Collier to consider whether a condemned prisoner can have his pastor physically touch him and audibly pray in the execution chamber while he is being executed.  I have not yet had a chance to listen to the oral argument (which is available here), but a quick scan of a number of press reports suggests the Justices were split on the matter.  Here is a partial round-up of blog and press comment on the argument:

From NPR, "Supreme Court conservatives are skeptical on spiritual advisers in death chamber"

From SCOTUSblog, "Court debates inmate’s request for prayer and touch during execution, but a key justice remains silent"

From Slate, "The Supreme Court’s Conservatives Finally Found a Religious Objection They Don’t Like"

From USA Today, “Texas death row case: Supreme Court wrestles with religious freedom in the execution chamber.”

November 9, 2021 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, November 08, 2021

Gearing up for SCOTUS argument in Ramirez on religious liberty in death chamber

On Tuesday morning, the US Supreme Court will hear Ramirez v. Collier, which presents these issues:

(1) Whether, consistent with the free exercise clause and Religious Land Use and Institutionalized Persons Act, Texas’ decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from laying his hands on his parishioner as he dies, substantially burden the exercise of his religion, so as to require Texas to justify the deprivation as the least restrictive means of advancing a compelling governmental interest; and (2) whether, considering the free exercise clause and RLUIPA, Texas’ decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from singing prayers, saying prayers or scripture, or whispering prayers or scripture, substantially burden the exercise of his religion, so as to require Texas to justify the deprivation as the least restrictive means of advancing a compelling governmental interest.

Here is some of the press I have seen previewing the case:

From Bloomberg Law, "Lawyer Takes Rare Case on Religion, Executions to U.S. Top Court"

From Newsweek, "Conservatives Find Rare Common Ground With ACLU in Death Penalty Religious Freedom Case"

From SCOTUSblog, "Court to clarify the right of death-row inmates to receive spiritual guidance during execution"

From Time, "‘Why Can’t I Hold His Hand?’ The Supreme Court Will Decide What Comforts a Pastor Can Offer During an Execution"

From Vox, "The Supreme Court must decide if it loves religious liberty more than the death penalty"

From the Washington Post, "Supreme Court considers a minister’s role at the time an inmate is put to death"

Prior related posts:

November 8, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, November 05, 2021

SCOTUS grants cert on two (consolidated) cases to consider physician criminal liability for unlawfully dispensing prescription drugs

The Supreme Court this afternoon issued this new short order list that grants certiorari in a few new cases, including a (consolidated) pair of criminal matters involving whether and when doctors can be criminal liable for unlawfully dispensing prescription drugs.  The two cases are Ruan v. US, No. 20-1410, and Kahn v. US, No. 21-5261, and here is the question presented in the first of these:

Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.

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

Thursday, November 04, 2021

Split Sixth Circuit panel finds multiple errors in district court's reduction of LWOP sentence via 3582(c)(1)(A)

The Sixth Circuit yesterday handed down a notable split panel opinion reversing the grant of compassionate release to a defendant who had been serving a life without parole sentence in US v. Bass, No. 21-1094 (6th Cir. Nov. 3, 2021) (available here).  Here i how the majority opinion gets started:

In 2003, John Bass, a local drug kingpin in the state of Michigan, was convicted of murdering a hitman whom Bass had hired to kill Bass’s half-brother.  Though the Government sought the death penalty, Bass was ultimately sentenced to two concurrent terms of life imprisonment without the possibility of release.  In 2020, Bass moved for compassionate release due to COVID-19.  The district court granted Bass’s request in January 2021 and ordered his immediate release.  In March, a divided panel of this court granted the Government’s emergency motion to stay the release.  In this merits appeal, the Government argues that the district court abused its discretion when it granted Bass’s request for immediate release.  Because the district court’s decision rested upon legal errors, its decision to release Bass constituted an abuse of its discretion.  On remand, moreover, the district court must reevaluate the compassionate release request based on current facts and circumstances, which have materially changed.

The "legal errors" identified by the majority relate largely to how the district court framed and balanced various 3553(a) factors, but the seriousness of the crime seems to be driving much of the analysis:

The district court also reasoned that, balancing Bass’s crimes “with the circumstances under which they were committed,” his twenty-two-year incarceration was “‘sufficient, but not greater than necessary,’ to fulfill the purposes of his punishment.” Bass, 514 F. Supp. 3d at 984 (quoting 18 U.S.C. § 3553(a)).  This conclusion does not fit the facts of Bass’s case.  Bass’s crimes were so severe that the Government sought the death penalty, and Bass’s own defense counsel assured the jury that Bass would never leave prison in an effort to avoid imposition of the death penalty.  Bass, 460 F.3d at 834.  The district court justified Bass’s release by repeatedly emphasizing Bass’s commitment to rehabilitation and education.  Bass, 514 F. Supp. 3d at 984-88.  But the district court failed to square this lengthy rehabilitation analysis with the fact that Bass’s original sentence was life imprisonment without the possibility of release. This sentence would have ensured that the fifty-two-year-old Bass would remain in prison for the rest of his life, which could conceivably extend for several decades.  In deciding Bass’s original sentence, the jury and the district court had already considered and rejected the possibility that Bass could be rehabilitated, or that his capacity for rehabilitation warranted the potential for an early release.  This is not to say that compassionate release is never available for a defendant sentenced to life imprisonment without the possibility of release.  We assume that there are circumstances that would warrant compassionate release for a defendant so sentenced.  But the nature of Bass’s life sentence calls into question the district court’s decision to afford substantial weight to Bass’s efforts at rehabilitation after only twenty-two years in prison.

Notably, as detailed here, a few months ago in US v. Hunter, 12 F. 4th 555 (6th Cir. 2021), a unanimous Sixth Circuit panel reversed a life sentence reduced to "only" 21 years in prison based on questionable conclusions that certain factors could never permit a sentence reduction via 3582(c)(1)(A).  Here the reversal is focused on the weighing of 3553(a) factors, and that reality in part drives  the dissent that Judge White penned here.  Her opinion starts and ends this way:

I would not have granted Bass’s motion for compassionate release, but under the compassionate-release jurisprudence this court has developed over the past year and a half or so, our disagreement with a district court’s exercise of its discretion is expressly excluded as a ground for reversal. We require district courts to provide only the most minimal explanation, see, e.g., United States v. Quintanilla Navarro, 986 F.3d 668, 673 (6th Cir. 2021) (affirming a district court's single-sentence order), and we must defer to their judgment in weighing the § 3553(a) factors and not substitute our own, see United States v. Ruffin, 978 F.3d 1000, 1005 (6th Cir. 2020); United States v. Hogg, 858 F. App’x 816, 818 (6th Cir. 2021); United States v. Keefer, 832 F. App'x 359, 362–65 (6th Cir. 2020)....

As I said at the outset, I would not have granted this motion.  However, the district court adequately explained its decision and did not abuse its discretion in concluding otherwise.  We must apply the same rules on review without regard to whether the government or the inmate is aggrieved by the district court’s decision.  “Our trust in the discretion of the district court must be consistent regardless of whether the district court grants or denies a [compassionate-release motion].” Bass, 843 Fed. App’x at 740.

November 4, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, November 02, 2021

Oklahoma board recommends clemency for Julius Jones who claims innocence from death row

This local article reports on a notable development in a high-profile case in Oklahoma involving the next death row inmate scheduled to be executed in the coming weeks. Here are the details:

The Oklahoma State Pardon and Parole Board on Monday recommended clemency for death row inmate Julius Jones.  The board voted 3-1 in favor of granting clemency for Jones, who has been on death row for more than 20 years for the 1999 murder of Edmond businessman Paul Howell.  One board member recused themselves from the vote.

Along with clemency, the Oklahoma Pardon and Parole Board recommended commuting Jones' death sentence to life with the possibility of parole.

"The Pardon and Parole Board has now twice voted in favor of commuting Julius Jones’s death sentence, acknowledging the grievous errors that led to his conviction and death sentence," Jones' lawyer, Amanda Bass, said in a news release.  "We hope that Governor Stitt will exercise his authority to accept the Board’s recommendation and ensure that Oklahoma does not execute an innocent man."

"My son Julius has been on death row for over twenty years for a murder he did not commit, and every day of that has been a waking nightmare for my family," Jones' mother, Madeline Davis-Jones, said in a news release....

Gov. Kevin Stitt will now decide Jones' fate.  He has not said how he plans to decide in the case, only saying that he wouldn't decide until after the clemency hearing.  His office released the following statement to KOCO 5: "Governor Stitt is aware of the Pardon and Parole Board’s vote today. Our office will not offer further comment until the governor has made a final decision."

Jones spoke during Monday's clemency hearing, giving his account of the night Howell was killed, the days after and his trial.

The recommendation comes more than a month after the same Pardon and Parole Board recommended that Jones' sentence be commuted, which set up Monday's clemency hearing. It also came less than a week after Oklahoma resumed executions for the first time since 2015.  The state put John Grant to death last week.  Although a decision on Jones' fate is up in the air, his execution is scheduled for Nov. 18.

Jones has gained a lot of support over the past few years, especially from several high-profile celebrities, including Kim Kardashian and Baker Mayfield.  Howell's family said before the clemency hearing that they hoped the Pardon and Parole Board would vote based on facts instead of Hollywood fiction.  His daughter spoke with KOCO 5 in October, saying a lot of misinformation had spread about Jones and the case.

November 2, 2021 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, November 01, 2021

Some notable dissents and a statement together with SCOTUS criminal justice cert denials

The merits cases scheduled to be argued before the Supreme Court this week on topics like abortion and gun rights are rightly getting a lot of attention.  But the week has started with this order list in which Court has 5+ pages listing cases on which certiorari has been denied.  In three cases involving criminal-law related issues, some Justices penned statements concerning these denials.  Via How Appealing, here are the basics with links:

In Simmons v. United States, No. 20-1704, Justice Sonia Sotomayor issued a statement, in which Justice Elena Kagan joined, respecting the denial of certiorari.

In Coonce v. United States, No. 19–7862, Justice Sotomayor issued a dissent, in which Justices Stephen G. Breyer and Kagan joined, from the denial of certiorari.

And in American Civil Liberties Union v. United States, No. 20–1499, Justice Neil M. Gorsuch issued a dissent, in which Justice Sotomayor joined, from the denial of certiorari.

The lengthiest and most notable of these separate opinions is in the Coonce case, where Justice Sotomayor starts her 11-page dissent this way:

Petitioner Wesley Paul Coonce, Jr., was convicted in federal court of murder. Facing the death penalty, he argued that his execution would violate the Eighth Amendment because he has an intellectual disability.  See Atkins v. Virginia, 536 U. S. 304 (2002).  The District Court denied Coonce’s Atkins claim without a hearing, the jury sentenced him to death, and the Eighth Circuit affirmed.

In denying Coonce relief without a hearing, the courts relied on the definition of intellectual disability by the American Association on Intellectual and Developmental Disabilities (AAIDD), which then required that an impairment manifest before age 18.  It is undisputed that Coonce’s impairments fully manifested at age 20.  After Coonce petitioned for certiorari, the AAIDD changed its definition to include impairments that, like Coonce’s, manifested before age 22.

The Government urges us to grant certiorari, vacate the judgment below, and remand (GVR), conceding that it is reasonably probable that the Eighth Circuit would reach a different result on reconsideration given the significant shift in the definition that formed the basis of its opinion. Instead, the Court denies certiorari.  Because Coonce is entitled to a hearing on his Atkins claim, and because our precedents counsel in favor of a GVR, I respectfully dissent.

One of many notable aspects of this case is highlighted by this observation in the dissent:

In light of the above, the material change in the AAIDD’s leading definition of intellectual disability plainly warrants a GVR.  To my knowledge, the Court has never before denied a GVR in a capital case where both parties have requested it, let alone where a new development has cast the decision below into such doubt.

I believe the defendant in this case will still be able to bring a 2255 motion, so the Justices voting to deny cert may be content to have these "execution competency" issues addressed in that setting. But Justice Sotomayor closes her dissent explaining why that seems to her insufficient:

I can only hope that the lower courts on collateral review will give Coonce the consideration that the Constitution demands. But this Court, too, has an obligation to protect our Constitution’s mandates. It falls short of fulfilling that obligation today. The Court should have allowed the Eighth Circuit to reconsider Coonce’s compelling claim of intellectual disability, as both he and the Government requested. I respectfully dissent.

November 1, 2021 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, October 28, 2021

By 5-3 order, SCOTUS vacates stays of Oklahoma executions entered by Tenth Circuit ... and one execution carried out

As set forth in this short order, the US Supreme Court this afternoon has vacated stays of execution for two death row defendants, one of whom is scheduled to be executed today.  Justices Breyer, Sotomayor, and Kagan indicated they would deny Oklahoma's application to vacate the stays that had been entered by the Tenth Circuit yesterday. Justice Gorsuch took no part in matter, presumably because the case came from his old circuit.  This Hill article from yesterday provides the basics on the litigation:

The U.S. Court of Appeals for the Tenth Circuit granted a temporary motion for stay of execution for two Oklahoma death row inmates on Wednesday, just a day before one of the inmates was scheduled to die by lethal injection.

The appeals court stayed the executions of Julius Jones and John Grant on the basis that they met two criteria required for an execution to be stayed. Prisoners must show that the execution method chosen by the state — in this case a three-drug lethal injection — presents “a substantial risk of severe pain" and they must also show that the risk of severe pain is substantial when compared to other available alternatives.

Jones and Grant were part of a federal lawsuit seeking to challenge Oklahoma's three-drug lethal injection. However, Judge Stephen Friot denied a motion for a preliminary injunction that they and three other inmates sought, clearing the way for their executions in the next six months....

The appeals court wrote that though Jones and Grant did not choose an alternative method of execution, it does not mean they did not identify alternatives to lethal injection. The court also wrote that there was no law that requires a prisoner to choose their own method of execution.  The court wrote that the if the inmates are executed they "risk being unable to present what may be a viable Eighth Amendment claim." 

UPDATE: As reported in this AP piece, "Oklahoma ended a six-year moratorium on executions Thursday, administering the death penalty on a man who convulsed and vomited before dying, his sentence for the 1998 slaying of a prison cafeteria worker." Here is more:

John Marion Grant, 60, who was strapped to a gurney inside the execution chamber, began convulsing and vomiting after the first drug, the sedative midazolam, was administered. Several minutes later, two members of the execution team wiped the vomit from his face and neck.

Before the curtain was raised to allow witnesses to see into the execution chamber, Grant could be heard yelling, “Let’s go! Let’s go! Let’s go!” He delivered a stream of profanities before the lethal injection started. He was declared unconscious about 15 minutes after the first of three drugs was administered and declared dead about six minutes after that, at 4:21 p.m.

Grant was the first inmate to be executed since a series of flawed lethal injections in 2014 and 2015. He was serving a 130-year prison sentence for several armed robberies when witnesses say he dragged prison cafeteria worker Gay Carter into a mop closet and stabbed her 16 times with a homemade shank. He was sentenced to die in 1999.

October 28, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

"Limiting the Pardon Power"

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

Although our government is said to be one of checks and balances, the president’s power “to grant Reprieves and Pardons for Offenses against the United States” appears to be unlimited.  In granting this power, the Framers deliberately cast structural safeguards aside.  Nevertheless, the presidency of Donald Trump prompted a search for limits.  This Article examines: (1) whether a president may pardon crimes that have not yet happened (or announce his intention to do so); (2) whether he may pardon himself; (3) whether he may use pardons to obstruct justice or commit other crimes; (4) whether criminal statutes should be construed not to apply to the president when they arguably limit the pardon power; (5) whether the Take Care Clause limits the pardon power; (6) whether pardons can deprive victims of due process; (7) whether pardons ever violate the separation of powers by limiting the authority of courts; (8) whether the exception to the pardon power for impeachment cases does more than prevent the president from blocking the impeachment of federal officeholders; (9) whether pardons must specifically identify the crimes pardoned; and (10) whether pardons are invalid when issued as the result of fraud, bribery, or other unlawful conduct.  Applying common-law principles that have limited the pardon power from the start, the Article explains why the pardons President Trump granted Roger Stone and Paul Manafort are invalid and why the Justice Department could seek a declaratory judgment saying so.

October 28, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, October 27, 2021

"Pathways to Success on Probation: Lessons Learned from the First Phase of the Reducing Revocations Challenge"

The title of this post is the title of this interesting new research brief from Arnold Ventures and the CUNY Institute for State & Local Governance which is part of the Reducing Revocations Challenge, a national initiative on probation supervision seeking to reduce its impact on mass incarceration. Here is part of the research brief's introduction:

There has been growing agreement among practitioners, policymakers, and the general public that there are far too many people under probation supervision in the United States.  Since 1980, the number of people on probation has increased more than 215 percent, from 1.2 million to 3.5 million in 2018.  Today, approximately one in 57 adults (roughly two percent of the U.S. adult population) is under community supervision on any given day, and unnecessarily long probation terms are required by law in many states around the country.  Indeed, together with parole, probation supervision accounts for the large majority of individuals under correctional control in this country....

Probation was designed to be an alternative to incarceration, yet for many people under supervision it turns out to be a pathway that inevitably leads them there.  Although research has highlighted a range of evidence-based strategies over the years, from graduated responses to risk-needs-responsivity supervision models to reporting kiosks for low-risk individuals, success rates have not improved over time.  We still know very little about how to most effectively manage and support people on probation in a manner that reduces revocations, maximizes success, and works to achieve community safety and well-being.  This is in part because our understanding about the factors, circumstances, and behaviors that drive probation revocations to jail or prison — including the role of technical violations and new criminal activity and what is considered in decisions to violate and/or revoke — remains limited.  We also know very little about how to respond to people on probation in ways that prevent new criminal activity without over-punishing less harmful behaviors or exacerbating racial and ethnic disparities....

With this in mind, in 2019 the CUNY Institute for State & Local Governance (ISLG) launched the Reducing Revocations Challenge (Challenge), a national initiative that aims to increase the success of those on probation by identifying, piloting, and testing promising strategies grounded in a robust analysis and understanding of why revocations occur. With the support of Arnold Ventures, over the past two years, the Challenge has supported research in 10 jurisdictions around the country to explore three key questions about local probation practices:

  1. Who is most likely to have a violation of their probation filed or have their probation revoked?
  2. Which types of noncompliance most often lead to probation revocation?
  3. What factors are driving these outcomes and what are the potential solutions? In each jurisdiction, the work was carried out by an action research team composed of a probation agency and a local research partner.
This brief summarizes the findings from the research work across jurisdictions. It begins with an overview of the Challenge and participating sites.  From there, we present key themes that emerged from the research in two subsections.  The first discusses trends that reaffirm prior learnings or assumptions about supervision revocations, especially with respect to factors and circumstances that influence who has probation violations filed and/or is revoked.  The second highlights new insights that emerged in key areas that have been more difficult to explore in the past despite being critical for enhancing success on supervision.  The brief ends with a discussion of policy and practice implications.

October 27, 2021 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, October 26, 2021

More executions postponed in Texas as SCOTUS considers religious liberty in death chamber

As reported in this post, the Supreme Court last month stayed the execution of John Ramirez and granted certiorari to consider Ramirez’s request that his pastor be allowed to physically touch him and pray aloud in the execution chamber while Ramirez is put to death by the state of Texas.  In this follow-up post, titled "A short de facto execution moratorium?: could other condemned inmates secure a stay until SCOTUS decides new Ramirez case on religious liberty?", I wondered if the SCOTUS cert grant in Ramirez could produce a short de facto execution moratorium based on other death row inmates making a religious liberty claim like Ramirez’s request. 

Since those posts, as noted here, Texas has been able to complete one execution, but a number of others have been postponed.  And this new AP report, headlined "Texas executions delayed over religious rights claims," details that the last two executions scheduled in Texas have now been postponed.  Here are the details:

The unresolved legal debate over whether spiritual advisers can touch inmates and pray aloud as condemned individuals are being put to death has delayed the final two executions scheduled this year in Texas. The delays come as the U.S. Supreme Court is expected to hear arguments next month in the case of another Texas death row inmate on the role of spiritual advisers in the death chamber.

Judges last week rescheduled the executions of Kosoul Chanthakoummane, who was set to die Nov. 10, and Ramiro Gonzales, who was set for Nov. 17. Gonzales’ new execution date is July 13 while Chanthakoummane’s new date is Aug. 17. Both inmates claimed that Texas was violating their religious freedom by not allowing their spiritual advisers to pray aloud and place a hand on their bodies at the time of their deaths.

“Litigation pending in the United States Supreme Court regarding the defendant’s right to the free exercise of religion warrants the withdrawal of the present date of execution and the setting of a new date of execution,” Medina County prosecutor Edward Shaughnessy wrote in a motion asking a judge to reschedule Gonzales’ execution.

In all, six executions that were scheduled this year in Texas were delayed or rescheduled due to religious freedom claims related to spiritual advisers.

Executions in Texas have been sporadic in the last two years, largely due to the COVID-19 pandemic, with just three lethal injections carried out last year, and three executions so far this year. In comparison, Texas carried out 13 executions in 2018 and nine in 2019.

Prior related posts:

October 26, 2021 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (5)

Two states restarting their death machinery with Fall 2021 lethal injections scheduled for long-dormant execution chambers

In this post last month, I noted that the Oklahoma Court of Criminal Appeals had set execution dates for seven persons.  Long-time readers may recall that Oklahoma last decade had two problematic executions, of Clayton Lockett in 2014 and Charles Warner in 2015, and the state has not had an execution for nearly seven years.  A new Oklahoman piece provides details and background regarding the Sooner machinery of death getting restarted under the headline "What we know about Oklahoma resuming executions for the first time since 2015":

Starting Thursday, the state of Oklahoma has scheduled seven execution dates for inmates on death row.  It would be the state's first execution in more than six years.  In 1977, Oklahoma was the first state to adopt lethal injection, through which an inmate is injected with a fatal mixture of drugs as its primary method for carrying out executions....

The case of Julius Jones has attracted nationwide interest in recent years.  No legal defense has disputed the guilt of the other six inmates, but Jones has long maintained his innocence....

The last time Oklahoma executed a death row inmate was Charles Warner in January 2015.  Warner and Clayton Lockett, executed in 2014, both died by what were widely criticized as "botched" lethal injections, in which the inmates were not administered the correct mixture of drugs to bring about a quick and humane death.

After Warner's execution, investigators discovered Warner had not been administered the proper drugs.  The state's supplier of lethal injection drugs had replaced the heart-stopping drug potassium chloride with potassium acetate, the wrong chemical.  Upon this discovery, the state halted all scheduled lethal injections, including that of death row inmate Richard Glossip, who received a stay of his execution from then-Gov. Mary Fallin hours before he was scheduled to die.

The controversy worked its way to the U.S. Supreme Court after Glossip and 20 other death row inmates sued in federal court, arguing against the constitutionality of the sedative midazolam.  A divided Supreme Court ruled that the state's drug mixture for lethal injections did not violate the "cruel and unusual punishment" amendment to the U.S. Constitution.  Glossip, who also has long maintained his innocence for the murder that placed him on death row, has exhausted his appeals but has gained support from bipartisan lawmakers for an independent reinvestigation into his case....

Since the hiatus in 2015, Oklahoma has explored alternative methods of administering the death penalty.  Fallin signed legislation allowing nitrogen gas to be used, if lethal injection is rendered unfeasible.  After struggling for years to design a proper device and protocol for the use of nitrogen gas, Oklahoma abandoned the idea in 2020 and reverted back to lethal injection, once another supplier for the drugs had been reportedly secured.  Oklahoma is one of only three states (the others being Mississippi and Utah) that allow for firing squads to be used as an alternative method, although this has not been done in the state for any of its executions since 1915.

Notably, recent news stories report now on another state gearing up to restarted its execution chamber after nearly a decade.  From the AP, "Mississippi prepares for first execution since 2012, corrections commissioner says":

Mississippi prison employees will conduct once-a-week rehearsals as the state prepares for its first execution since 2012, Corrections Commissioner Burl Cain says.  Cain told The Associated Press on Friday that the rehearsals for a lethal injection are usually done once a month at the Mississippi State Penitentiary at Parchman, following a protocol that's about 20 pages long.

The Mississippi Supreme on Thursday set a Nov. 17 execution date for David Neal Cox, who pleaded guilty in 2012 to killing his wife, Kim, in 2010 in the northern Mississippi town of Shannon.  Cox withdrew his appeals and once filed court papers calling himself "worthy of death.”  Mississippi has not had an execution since 2012, and it had six that year.

Cain confirmed Mississippi has obtained lethal injection drugs, but he declined to say how.  “I’m not supposed to talk about the drugs too much,” Cain said.  Mississippi is still facing a lawsuit filed in 2015 by the Roderick & Solange MacArthur Justice Center on behalf of two inmates.  The suit argues Mississippi’s lethal injection protocol is inhumane.

October 26, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (1)

Saturday, October 23, 2021

Making the case for bringing back parole in Illinois and elsewhere

A few years ago I wrote an essay, titled "Reflecting on Parole's Abolition in the Federal Sentencing System," which in part lamented the federal sentencing system's decision to abolish parole back in 1984.  That essay came to mind as I read this new New York Times commentary authored by Ben Austen and Khalil Gibran Muhammad headlined "Let the Punishment Fit the Crime."  Here are excerpts:

Senate Bill 2333 would entitle people imprisoned in the state who serve at least 20 years to a parole review.  There are 2,500 people who have already spent two decades in prison in Illinois; many thousands more will eventually surpass that mark.  Under the proposed law, they wouldn’t be automatically released; a parole board would evaluate them, assessing the risks and benefits of restoring their freedom.

Both of us have visited and studied prisons in other Western countries, where 20-year sentences are considered extreme and are exceptionally rare.  In Germany, according to a 2013 Vera Institute of Justice report, fewer than 100 people have prison terms longer than 15 years; in the Netherlands, all but a tiny percentage are sentenced to four years or less.  In U.S. prisons, life sentences are routine. 

The pending Illinois law, if passed, might lead other states to follow suit, chipping away at one of the many pillars of mass incarceration. The legislation is a hopeful sign of changing sensibilities about people whose transformed lives have meant very little in the machinery of mass punishment.

Parole has a complicated history in this country, one that helps explain how we got into the crisis of mass incarceration and maybe how we might find a way out. When it began in the United States in the 19th century, parole was envisioned as a means of rehabilitating people in prison by encouraging good behavior with the possibility of early release.

By the 1970s, though, parole boards were under attack. Conservatives pointed to rising crime and civil disorder and denounced parole as overly lenient. They said discretionary release invariably sent dangerous people back onto the streets and encouraged more crime, since soft punishments failed as deterrents.

On the other end of the political spectrum, people behind bars were busy protesting prison conditions. They said parole boards lacked transparency and systematically discriminated against petitioners of color. They and their supporters believed that clearly defined fixed prison terms would be less susceptible to a parole board’s bias, racism and indifference, and that as a result these sentences would be shorter. They were wrong.

Sixteen states and the federal government eventually got rid of or severely curtailed their existing parole systems. Other states soon restricted parole eligibility to a small subset of their prison populations. But eliminating and restricting parole turned out to be the first of the sentencing reforms in the country’s punitive turn.

The floodgates opened onto mandatory minimums, truth-in-sentencing, three strikes and you’re out. More people were sentenced to prison, and the fixed terms grew longer and longer. The number of people in state and federal prisons ballooned to a peak of 1.6 million in 2009 from 200,000 in the 1970s. The numbers have fallen moderately since.

A large body of evidence has documented the destruction caused by long prison terms. Not only are people over 50 the fastest-growing segment in U.S. prisons, but they are also exposed to ever-greater mental and physical health risks with each passing year — a crisis made even more apparent during the Covid-19 pandemic.

One of us was a contributor to a 2014 National Research Council report on the creation and consequences of mass incarceration. The report recommends a return to a principle of parsimony, the sensible idea that a punishment should be only as severe as is required to prevent future offending. Too much punishment, the report noted, can have the opposite effect, when “justice institutions lose legitimacy.”

Many legal scholars and criminologists now agree that whatever prisons are supposed to accomplish — whether it’s incapacitation, accountability, rehabilitation or deterrence — it can be achieved within two decades. The nonprofit Sentencing Project argues that the United States should follow the lead of other countries and cap prison terms at 20 years, barring exceptional circumstances. The Model Penal Code of the American Law Institute, a century-old organization led by judges, law professors and legal experts, proposes reviewing long sentences for resentencing or release after 15 years.

In Virginia, there’s also a movement to reinstate parole eligibility. A bill in New York State would grant those 55 and older who have served at least 15 years the right to a hearing. Expanding parole consideration in Illinois and elsewhere won’t be enough to roll back the destructive effects of mass incarceration. But it would be an important step in continuing efforts to reduce prison numbers, and it could usher in other necessary changes.

October 23, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Friday, October 22, 2021

Oregon Gov uses clemency power to give certain juve offenders opportunity for parole after non-retroactive statutory reform

As reported in this HuffPost piece, "Oregon Gov. Kate Brown (D) commuted the sentences of dozens of people convicted of crimes they committed as kids on Wednesday, potentially reducing their prison time by hundreds of years and marking major progress in a broader reform effort that recognizes people who committed crimes before they were adults have a unique capacity for change." Here is more (with links from the original):

Brown’s clemency order lists more than 70 people who committed crimes before they were 18 years old and are serving sentences of 15 years or more in prison.  They were selected because they were excluded from a 2019 juvenile justice reform bill that dramatically changed the way the state punishes people who commit crimes when they are kids.  Those individuals, many of whom were previously facing life sentences — some without the chance of parole — now have the opportunity to petition the state’s Board of Parole and Post-Prison Supervision for release after 15 years in prison.  Brown instructed the board to consider each individual’s age and immaturity at the time of the crime and whether they have subsequently shown maturity and rehabilitation.
The clemency order excludes individuals who are serving sentences for crimes they later committed as adults and those who have a release date of 2050 or later — although these individuals can still petition the governor for clemency.

The governor’s move comes months after a HuffPost story about Kipland Kinkel, one of Oregon’s most infamous juvenile offenders, and the ways his high-profile case has been used to justify extreme sentencing for other people who committed crimes when they were kids.  In 1998, when Kinkel was 15 years old and experiencing symptoms of a severe undiagnosed mental illness, he killed his mother, his father, two students at his school, and wounded 25 others.  He was sentenced to nearly 112 years in prison without the chance of parole.

With a projected release date of 2110, Kinkel is not part of Brown’s clemency order.  The 2050 cutoff in Brown’s order appears to be designed specifically to exclude him, although it does impact a handful of other people....

Brown’s clemency action is an effort to correct some of the sentencing inequities created by the state legislature with the non-retroactive reform bill....  Juvenile justice reform advocates praised Brown’s decision to give a second chance to people who have grown up and dramatically changed since the time of their crimes....

Brown outlined her clemency plan in a September letter to Oregon’s Department of Corrections in which she requested a list of names of people in its custody for crimes they committed as juveniles who were sentenced before S.B. 1008 went into effect and who met a set of criteria. 

“SB 1008 takes into account the fact that these youth are capable of tremendous transformation,” Brown wrote in the letter, citing the fact that many who commit crimes during their youth complete college degrees and treatment programs while in youth custody before they even age into adult prison. “For these reasons, I have no doubt that the above-referenced list will be comprised of many individuals who have demonstrated exemplary progress and considerable evidence of rehabilitation, and who — unfairly — did not benefit from the effects of SB 1008.”

Brown’s juvenile clemency plan is two-pronged, according to the September letter.  One part involves providing clemency that enables individuals who are serving a sentence of 15 years or more to get a parole board hearing — which she did on Wednesday.  The second part involves reviewing the sentences of people who were under 18 at the time of their crime and who will have served 50% of their sentences by next December.

For the roughly 200 people in that group, the governor’s office “will engage in an individualized review process to determine whether the youth has made exemplary progress and if there is considerable evidence of rehabilitation, as well as taking into account input from the [district attorney] and victims, if any,” Merah wrote in an email. “If the Governor determines that a commutation is warranted, the youth will be granted a conditional release.”  Both parts of Brown’s clemency plan exclude individuals who are currently in prison for a conviction they subsequently committed as adults.

October 22, 2021 in Clemency and Pardons, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, October 21, 2021

Notable (re)sentencing of another former Minnesota police officer for another notable homicide

Though not anywhere as high-profile as the conviction and sentencing of Derek Chauvin, another Minnesota police officer was just subject to state sentencing (actually a resentencing) for homicide. This local article, headlined "Judge resentences ex-officer Mohamed Noor to almost 5 years on manslaughter count," reports on an interesting sentencing process and outcome. Here are excerpts:

Former Minneapolis police officer Mohamed Noor received a new sentence of 4 3/4 years on Thursday for his manslaughter conviction after the state's high court overturned the more serious murder conviction for the 2017 shooting of an Australian woman who had called to report a possible crime.

Noor, who turned 36 Wednesday, was resentenced by Judge Kathryn Quaintance on second-degree manslaughter because the Minnesota Supreme Court set aside his third-degree murder conviction last month.  The decision vacated a prison term of 12 1/2 years Noor was already serving on the murder count for shooting Justine Ruszczyk Damond.

Quaintance, in sentencing Noor to the high end as suggested by state sentencing guidelines, said she wasn't surprised Noor has been a model prisoner, but he had fired his gun across the nose of his partner, endangering a bicyclist and others in the neighborhood on a summer evening.  "These factors of endangering the public make your crime of manslaughter appropriate for a high end sentence," she said.

Noor has served 29 1/12 months since he entered prison in May 2019.  With credit for time served, Noor would be scheduled for release after serving 2/3 of his sentence, meaning he must serve another 8 1/2 months. He is likely to be released next May.

Assistant Hennepin County Attorney Amy Sweasy read a statement from Maryan Heffernan, the victim's mother, who was watching from Australia.  The family sought the maximum for Noor. "We should expect complete accountability from our public institutions and their staff," Heffernan's statement said.  The longest sentence would send a message to police "that we require respect for their badges," Heffernan's statement said.  "We will be outraged if the court is unwilling to respect the will of the people and demand that justice be heard, be seen and be done."

The victim's fiance Don Damond appeared via Zoom and took a different tact, saying the Supreme Court's decision, "Does not diminish the truth which was uncovered during the trial.  The truth is that Justine should be alive." Damond said his comments should not be construed that he wasn't still grieving, but his departed wife "lived a life of love, she modeled a life of joy for all and she stood for forgiveness."

"Given her example, I want you to know that I forgive you Mohamed," he said. "All I ask is that you use this experience to do good for other people.  Be the example of how to transform beyond adversity.  Be an example of honesty and contrition. This is what Justine would want."

Second-degree manslaughter is punishable by up to 10 years in prison, but state sentencing guidelines recommend a term between about 3 1/3 and 4 3/4 years in prison for defendants with no criminal history, such as Noor.  The presumptive term is four years, according to the guidelines.

In her comments, Sweasy asked for the maximum, noting this will be the only time a police officer will be sentenced for this offense.  "By every measure ... this is worse-than-typical for a second-degree manslaughter case," Sweasy said, adding that Noor wore the badge of Minneapolis police officer, a social contract that provides privilege to use deadly force to protect other civilians.

Noor's attorney, Thomas Plunkett, said Noor was young and had overreacted. "He was operating with the mistaken belief that he needed to protect his partner," Plunkett said, adding that Noor had wanted to make the world better and chose a career as a police officer to bridge the gap between the police, the justice system and the Somali-immigrant community.

In prison, he was an award-winning inmate for his commitment and respect to others.  Plunkett requested a sentence at the low end of the guidelines, 3 1/3 years.  There is little doubt that Mr. Noor's time in prison was "more punitive" than anyone could have imagined before the pandemic, Plunkett said.  In Noor's brief comments, he said he was "deeply grateful" for Damond's forgiveness and "deeply sorry" for the family's loss. Of Damond, Noor said, "I will take his advice and be a unifier."

Plunkett had asked the judge to give Noor credit for time he's already served in prison and to place him on supervised release, which typically requires regular check-ins with the Minnesota Department of Corrections (DOC), regular drug and alcohol testing, and restrictions on certain activities.  It can also include electronic home monitoring.  Violations of such terms can result in a defendant being sent back to prison.

Defendants in Minnesota must serve 2/3 of their prison term before becoming eligible for supervised release.  Noor entered prison on May 2, 2019 and was first sentenced in June 2019.  He originally served his time in administrative segregation at Oak Park Heights prison in Minnesota, but was transferred on July 11, 2019 to facility in North Dakota for his own safety.

October 21, 2021 in Offender Characteristics, Offense Characteristics, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (0)

Monday, October 18, 2021

Federal double jeopardy cert grant and two summary reversals awarding police qualified immunity on new SCOTUS order list

After two weeks hearing oral argument (including a short holiday week), the Supreme Court has the next two weeks "off" before its November sitting.  But a final bit of SCOTUS action today comes in the form of this order list with two cert grants, a lot of cert denials, and two summary reversals.  The cert grants are in one civil and one criminal "Indian" case, and the question presented in Denezpi v. US, 20-7622, from this cert petition is:

Is the Court of Indian Offenses of Ute Mountain Ute Agency a federal agency such that Merle Denezpi’s conviction in that court barred his subsequent prosecution in a United States District Court for a crime arising out of the same incident?

The two SCOTUS per curiam summary reversals both involve short unanimous decisions overturning rulings by the Ninth and Tenth Circuits that denied qualified immunity to police officers. The Ninth Circuit case, Rivas-Villegas v. Cortesluna, No. 20-1539 (S. Ct. Oct. 18, 2021) (available here), is described by the Justices as involving "Rivas-Villegas plac[ing] his knee on Cortesluna for no more than eight seconds and only on the side of his back near the knife that officers were in the process of retrieving."  The Tenth Circuit case, City Tahlequah v. Bond, No. 20-16689 (S. Ct. Oct. 18, 2021) (available here), is described by the Justices as involving two officers shooting to death a suspect who "raised the hammer [which he grabbed during a tense encounter] higher back behind his head and took a stance as if he was about to throw the hammer or charge at the officers."

Though I do not follow discussions and debates over policing doctrines closely, I know that there has been considerable interest in encouraging the Supreme Court to cut back (or even eliminate) the judge-created doctrine of qualified immunity.  These two new decisions would seem to suggest that this current Court seems just fine with applying qualified immunity and that any significant changes to the doctrine for the police will need to come from other branches.

October 18, 2021 in Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Wednesday, October 13, 2021

SCOTUS argument suggests Justices likely to reinstate reversed death sentence for Boston Marathon bomber Dzhokhar Tsarnaev

When the US Supreme Court back in March decided to grant cert on the federal government's appeal of the First Circuit's reversal of Boston Marathon bomber Dzhokhar Tsarnaev's death sentence, a smart bet would have been that a majority of Justices were inclined to reinstate that death sentence.  Such a bet looks even smarter after today's Supreme Court argument where the Justices questions and comments revealed the predictable ideological split and strongly suggested that a majority of Justices will be voting to reinstate Tsarnaev's death sentence.

The headlines from various press and blog coverage reports on most of the essentials:

From CNN, "Supreme Court conservatives appear ready to endorse death sentence for Boston Marathon bomber Dzhokhar Tsarnaev"

From Crime & Consequences, "SCOTUS Appears Poised to Re-Instate Death Penalty for Boston Marathon Bomber"

From Fox News, "Boston Bomber case: Kavanaugh, Kagan clash in rare testy exchange over mitigating evidence"

From NBC News, "Supreme Court appears likely to allow death sentence for Boston Marathon bomber"

From SCOTUSblog, "Justices appear to favor reinstating death penalty for Boston Marathon bomber"

Interestingly, the second of the two questions presented in the case captured most of the Justices' attention as they explored "Whether the district court committed reversible error at the penalty phase of respondent’s trial by excluding evidence that respondent’s older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted."  Some of the questioning on this issue suggested that the Court might have to, or might want to, say something significant about the evidentiary rules that attend the penalty phase of a capital trial.  If they do speak to this issue broadly, the significance of the Tsarnaev case could extend beyond this defendant's awful crimes and ultimate punishment.

October 13, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Tuesday, October 12, 2021

SCOTUS to hear argument over First Circuit's reversal of death sentence of Boston Marathon bomber Dzhokhar Tsarnaev

Yesterday, the 2021 version of the Boston Marathon took place.  Tomorrow, the Supreme Court will hear oral argument in US v. Tsanaev to consider whether the First Circuit erred when reversing the death sentence given to the bomber who killed  three and injured hundreds during the 2013 version of the Boston Marathon.  (I have done dozens of posts on crimes and punishments of Dzhokhar Tsarnaev, and below are a few of the most recent ones.)

There is a lot of media coverage of the case as it gets to the Justices for oral argument, and here is a sampling:

From the AP, "Marathon bomber faces revived death sentence in high court"

From Courthouse News Service, "Fate of Boston Marathon bomber faces Supreme Court reckoning"

From Reuters, "Boston Marathon bombing victims split on death penalty in Supreme Court case"

From SCOTUSblog, "Justices to consider government’s appeal to reinstate death penalty for Boston Marathon bomber"

From Time, "Boston Marathon Bomber Supreme Court Case Exposes Split Between Biden and Justice Department on Death Penalty"

From WGBH, "Will The Supreme Court Reinstate A Death Sentence For Boston Marathon Bomber?"

A few many prior recent related posts:

October 12, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Does Prez Trump's statement to clemency advocates to "get this guy home" constitute an enforceable commutation?

The question in the title of this post is the question explored in this recent lengthy Washington Post article discussing a notable new filing by lawyers representing James Rosemond.  The article is headlined "Trump granted hip-hop manager clemency but left him in prison, lawyers claim," and here are excerpts (with links to key filings):

The waning days of Donald Trump’s presidency saw a carnival of celebrities and those with personal connections to him jostling for clemency. Trump obliged many of them, granting pardons to rappers Kodak Black and Lil Wayne and longtime allies Stephen K. Bannon and Roger Stone.

And then there was James Rosemond, known as “Jimmy Henchman,” a once-major player in the hip-hop industry who represented artists such as Salt-N-Pepa, the Game, Akon and Brandy before he was condemned to nine life terms for drug trafficking and murder for hire.

For years, Rosemond’s attorneys and a cadre of celebrity advocates — including retired National Football League great Jim Brown and the actor Michael K. Williams, who died last month — had argued that Rosemond was unjustly convicted, campaigning for President Barack Obama and then Trump to grant him clemency.  Late last year, it appeared to Rosemond’s advocates that they had succeeded. 

On Dec. 18, Trump called Brown and his wife, Monique, according to legal affidavits signed by the Browns. “Let’s get this guy home for Christmas,” Trump told the staff in his office during that call, the Browns said.

By the end of the conversation, the Browns said, they had no doubt that Trump meant he was commuting Rosemond’s sentence. Rosemond’s representatives say that they were told his family should go pick him up the following week and that loved ones traveled to West Virginia to be there when he walked out of prison after a decade inside.  But he never emerged, they say.  The family returned home devastated, and Trump left office two months later.

The Browns’ affidavits are now central to a novel legal argument being advanced by Rosemond’s attorneys that speaks to the mad dash at the end of the Trump administration, when celebrity and influence injected even more uncertainty than usual into the unsettled, high-stakes law of presidential clemency.

In a petition filed Thursday afternoon in federal court in West Virginia, Rosemond’s attorneys claim that Trump’s conversation with Jim and Monique Brown constituted a public communication that he was commuting Rosemond’s sentence, which they said is all that is required to make the decision binding and irreversible.

“Rosemond is serving a sentence that no longer exists,” his attorneys write.  Though the 20-page petition cites obscure examples of informal presidential clemency decrees dating to President Abraham Lincoln’s handling of Civil War deserters, Rosemond’s attorneys acknowledge in the document that “this exact situation is unprecedented — it does not appear to have happened in the history of the United States.”

In a statement to The Washington Post, Rosemond attorney Michael Rayfield said that despite the lack of precedent, “it’s clear to me that Jimmy doesn’t belong in prison for another day.”...

Scholars of presidential clemency interviewed by The Post were split on whether Rosemond’s legal argument has merit.

Mark Osler, a professor of law at the University of St. Thomas in Minnesota who has argued for changes to the presidential clemency process, said that the argument “presents a fascinating question that hasn’t been addressed in modern times.”

“They’ve got a good point, which is that the Constitution does not set out a method to the granting of clemency,” Osler said.  While in other cases, presidents, including Trump, signed pardon warrants, “there’s no statute or constitutional provision that requires that.”

Margaret Love, who served as U.S. pardon attorney from 1990 through 1997, said that the petition, as described to her by a reporter, touches on “really interesting” questions about the legitimacy of a pardon or commutation only uttered by a president.  “I believe there’s no reason in principle that a president should have to write something down,” Love said.

But she said she believed Trump’s language, as she gleaned from the Browns’ affidavits, did not amount to a clear declaration that he was commuting Rosemond’s sentence.  “While the president indicated an intention to do the grant, it does not sound to me like he actually did the grant,” Love said.

October 12, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Thursday, October 07, 2021

Oregon Supreme Court rules legislative change renders prior death sentence now violates state constitution's proportionality requirements

The Oregon Supreme Court had a notable unanimous ruling today which finds a state death sentence unconstitutional in a way that, according to this press piece, could mean that many or even all those now on the state's death row will be able to get their death sentences overturned.  The ruling in Oregon v. Bartol, 368 Or 598 (Oct. 7, 2021) (available here), substantively concludes this way:

Legislative enactments are strong indicators of those standards, and the enactment of SB 1013 shows that the legislature has determined that, regardless of when it was committed, conduct that was previously classified as “aggravated murder” but is now classified as “murder in the first degree” does not fall within the narrow category of crimes for which the death penalty can be imposed.  Importantly, that moral judgment stands apart from the question of retroactivity.   Although the legislature did not make SB 1013 retroactive as to sentences imposed before its effective date, the enactment of the bill itself reflects a judgment that conduct that was previously classified as “aggravated murder” does not fall within the narrow category of conduct that can be punished by death, as opposed to lesser sentences, including life imprisonment.  Consequently, maintaining defendant’s death sentence in this case would violate two special proportionality requirements that, under Article I, section 16, apply to the death penalty: the requirement that the death penalty “be limited to those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution,’ ” Roper, 543 US at 568 (quoting Atkins, 536 US at 319), and the requirement that there be “a fundamental, moral distinction” between crimes that are punishable by death and those that are not, Kennedy, 554 US at 438.  Maintaining his death sentence would allow the execution of a person for conduct that the legislature has determined no longer justifies that unique and ultimate punishment, and it would allow the execution of a person for conduct that the legislature has determined is no more culpable than conduct that should not result in death.  Therefore, in light of the legislature’s enactment of SB 1013, we conclude that defendant’s sentence violates Article I, section 16.

October 7, 2021 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Wednesday, October 06, 2021

"Ring and Hurst Retroactivity: Deconstructing Divergent Doctrines"

The title of this post is the title of this recent article from Melanie Kalmanson and Nathan Molina available via SSRN.  Here is its abstract:

The U.S. Supreme Court’s opinions in Ring v. Arizona (2002) and Hurst v. Florida (2016) are two critical parts of the jurisprudence related to capital defendants’ right to trial by jury under the Sixth Amendment to the U.S. Constitution. Each opinion clarified capital defendants’ rights under the Sixth Amendment.  While the new rules announced in the opinions seemed clear at the time, courts have grappled with how to apply Ring and Hurst — specifically to defendants whose sentences were final when the opinions were issued. Courts have diverged on whether the new rules announced in Ring and Hurst apply retroactively.  This Article attempts to unravel the confusion surrounding why courts across the country have reached differing conclusions about whether these landmark decisions should apply retroactively.

Ultimately, this Article explains that the case law regarding retroactive application of Ring was mostly consistent. It was after the U.S. Supreme Court decided Hurst that four points of confusion arose surrounding retroactivity: (1) Was Hurst a direct result of Ring?  If so, should it apply retroactively?  (2) What role did the Eighth Amendment play in both Ring and Hurst?  (3) Why did some courts reach divergent conclusions on Hurst retroactivity even in applying the same federal standard?  (4) Does the Florida Supreme Court’s invention of partial retroactivity for Hurst make sense?  By exploring and explaining these sources of confusion, this Article aims to help clarify the broader landscape of modern capital sentencing jurisprudence.

October 6, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, October 05, 2021

Wooden it be remarkable if the Constitution again has something to say about applying ACCA?

For some reason, the Supreme Court's Wooden case concerning proper application of the Armed Career Criminal Act prompts me to make silly post titles.  My prior recent post, "Wooden, SCOTUS on the ACCA, not so free and easy," riffed poorly on song lyrics, while today I am trying a bad pun.  The question within the punny title here is driven by the fact that the Supreme Court has previously blown up part of ACCA based on Fifth Amendment vagueness problems (Johnson from 2015) and has also shaped its application of the statute based on Sixth Amendment jury right worries (Shepard from 2005).  So, perhaps unsurprisingly, during SCOTUS oral argument yesterday in Wooden, a number of Justices raised both Fifth and Sixth Amendment concerns about  courts having to figure out the reach of ACCA's extreme 15-year mandatory minimum for unlawful gun possession based on just whether and when a defendant on a prior crime spree has committed predicate offenses "on occasions different from one another."

I am disinclined to make bold predictions after listening to the oral argument, though I am tempted to predict that the defendant will prevail and the question is going to be on what ground(s). I reach that view because even Justice Alito seemed to be struggling to figure out how to give meaningful content to a key phrase that determines at least five years of federal imprisonment.  Here are a few choice quotes from Justice Alito: "This seems to me to be a nearly impossible question of statutory interpretation because the term 'occasion"' does not have a very precise meaning.";  "I have no idea what an occasion is or what a criminal opportunity is or what a criminal episode is."  If Justice Alito cannot come up with a pro-prosecution reading of the applicable statute, I doubt other Justices will be able to do so -- especially because many of the other Justices who generally tend to favor the government also tend to be fans of the Fifth and/or Sixth Amendment doctrines in play in this case (I am thinking here of the Chief Justice as well as Justices Thomas and Gorsuch).

For some other views on the argument, here is a round up of some of the press coverage I have seen:

From Bloomberg Law, "Justices Parse ‘Occasion’ Meaning in Career-Criminal Appeal"

From Courthouse News Service, "Burglary of many units in one facility poses counting challenge at sentencing"

From Law360, "Justices Dubious About Feds' 'Career Criminal' Interpretation"

From SCOTUSBlog, "A hypothetical-filled argument proves how tricky it is to define an 'occasion'"

October 5, 2021 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, October 04, 2021

SCOTUS releases first big order list of October Term 2021 ... with little of particular sentencing note

It is the first Monday in October, which means SCOTUS gets its first big day of the new Term started with this big order list full of a whole lot of denials of certiorari in cases that stacked up through the summer.  As noted in this prior post, the Justices released a short order last week in which it granted cert in a handful of new cases (including a crack resentencing case).  So, the new order list is just a few GVRs, more cert denials than I can count, and also a few statements by Justices Breyer and Sotomayor concerning a few criminal case cert denials.

Notably, especially because SCOTUS is hearing another ACCA case this morning, the case prompting the most GVRs on this new SCOTUS order list is the Borden ACCA case from last term (basics here).  In addition, one of the statements from Justice Sotomayor is in an ACCA case from the Sixth Circuit.  The Armed Career Criminal Act is clearly that confusing federal law that is the ugly jurisprudential gift that keeps on giving.

In this post last week, I flagged some notable sentencing issues on SCOTUSblog's "Petitions to Watch."  It appears that cert was denied in roughly half of the cases listed in that prior post, but the other cases do not appeal to be mentioned on this first order list.  If those other cases have been relisted for more consideration by the Justices, that bodes well for a few more notable sentencing cases being added to the SCOTUS docket this Term.  As always, stay tuned.

UPDATE: Over at Crime & Consequences, Kent Scheidegger has a brief criminal-justice review of the order list today titled "The Long List from the Long Conference"

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

Sunday, October 03, 2021

Split Tenth Circuit panel upholds constitutionality of Colorado's indefinite sentencing of sex offender for 37 years

A helpful reader made sure I did not miss the interesting split panel ruling last week by the Tenth Circuit in Wimberly v. Williams, No. 20-1128 (10th Cir. Sept. 29, 2021) (available here). The majority opinion starts by setting out the essence of the case of the panel's ruling:

In 1984, Mr. Bruce E. Wimberly pleaded guilty to first-degree sexual assault.  The Colorado trial court accepted his plea and considered the sentencing options. One option was a conventional sentence: a determinate prison term up to 24 years. But the Colorado Sex Offenders Act of 1968 provided a second option: an indeterminate term of confinement lasting anywhere from one day to life imprisonment.  The court chose the second option, made additional findings required by the statute, and imposed an indeterminate term of confinement ranging from one day to life imprisonment.

More than 24 years have passed.  With passage of this time, Mr. Wimberly argues that the Constitution requires his release because he didn’t receive a new hearing at the end of the 24-year determinate term (that the trial court chose not to impose).  Without a new hearing, Mr. Wimberly claims that his continued confinement violates his rights to equal protection and due process.

The federal district court rejected Mr. Wimberly’s arguments, and so do we.  The state trial court provided adequate procedural safeguards when imposing the indeterminate term of confinement, and that term could last anywhere from a single day to the rest of Mr. Wimberly’s lifetime.  The State thus had no constitutional duty to provide a new round of procedural safeguards 24 years into Mr. Wimberly’s indeterminate term.

Judge McHugh dissents, arguing that Colorado functionally subjected the defendant to an unconstitutional form of civil confinement in an opinion that starts this way:

Petitioner-appellant Bruce E. Wimberly has been imprisoned for over 37 years, which is more than a decade longer than the maximum permissible sentence for his underlying crimes.  Over this past decade, Colorado has denied Mr. Wimberly the procedural protections it affords to civil committees in its custody.  The majority sees no constitutional problem with this; but I do. I therefore respectfully dissent.

The majority’s conclusion stems from its premise that “it doesn’t matter whether we call this a sentence or a criminal commitment.” Maj. Op. at 9.  I reject this premise.  Mr. Wimberly is presently confined under the Colorado Sex Offenders Act of 1968 (“CSOA” or the “Act”), which, in a section titled “Indeterminate commitment,” provides that courts “may, . . . in lieu of the sentence otherwise provided by law, commit a sex offender to the custody of the [Department of Corrections] for an indeterminate term having a minimum of one day and a maximum of his or her natural life.” Colo. Rev. Stat. § 18-1.3-904 (emphasis added). In my view, both U.S. Supreme Court precedent and Colorado state law support the conclusion that the CSOA provides for a scheme of criminal commitment, not sentencing.

From my premise that Mr. Wimberly is serving a criminal commitment, I further conclude Mr. Wimberly’s present confinement violates the Equal Protection Clause of the Fourteenth Amendment.

October 3, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Wooden, SCOTUS on the ACCA, not so free and easy

The title of this post is my not-so-clever way of connecting the Supreme Court's new-Term opening case on the Armed Career Criminal Act to a depressing CSN&Y song.  The lyrics of the song "Wooden Ships" are only a bit more opaque than the language that SCOTUS has to sort out in Wooden v. US concerning the proper application of the severe sentencing mandatory minimum of the Armed Career Criminal Act.  Daniel Harawa at SCOTUSblog has a full preview of the case in this new post titled "What’s an “occasion”? Scope of Armed Career Criminal Act depends on the answer."  Here is an excerpt (with links from the original):

If you break into a storage facility and steal from 10 separate storage units, did you commit 10 offenses “on occasions different from one another”? The Supreme Court will answer this question in Wooden v. United States, yet another case concerning the scope of the Armed Career Criminal Act....

The federal government charged Wooden with being a felon in possession of a firearm — a crime for which the maximum punishment is 10 years’ imprisonment. The government also requested that Wooden be designated an armed career criminal under the Armed Career Criminal Act, in which case Wooden would be subject to a 15-year mandatory minimum.  To qualify as an armed career criminal, a defendant must have three prior “violent felony” or “serious drug offense” convictions.  Here, the government argued that Wooden’s 10 burglary convictions qualified as 10 “violent felonies” for ACCA purposes.  To constitute separate convictions under ACCA, the crimes must be “committed on occasions different from one another.”  Wooden argued that the 10 burglaries all occurred on the same “occasion,” and therefore counted for only one qualifying violent felony under ACCA.

The U.S. Court of Appeals for the 6th Circuit agreed with the government.  It held that the crimes were committed on separate “occasions” because Wooden “committed ten distinct acts of burglary.”  To the 6th Circuit, it was dispositive that “Wooden could not be in two (let alone ten) of [the storage units] at once.”  Much like the 6th Circuit, other circuits had held that crimes are committed on different “occasions” for ACCA purposes when they are committed “successively rather than simultaneously,” as in United States v. Carter, an 11th Circuit case.  Other circuits, however, looked beyond temporality and instead considered whether the crimes were committed under sufficiently different circumstances.  The 2nd Circuit, for instance, “distinguish[ed] between the defendant who simply commits several offenses in a connected chain of events and the defendant who … commits multiple crimes separated by substantial effort and reflection.” The Supreme Court granted certiorari to resolve this split.

Before the Supreme Court both Wooden and the government argue that ACCA’s structure, history, and purpose support their position.

October 3, 2021 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Thursday, September 30, 2021

SCOTUS starts new term with four new cert grants, one involving the sentencing process for retroactive crack case resentencing

I was pleased to see that the Justices decided to give us a taste of the start of the new SCOTUS Term by issuing this morning this one-page order list that includes the granting of certiorari in four new cases (all of which are likely to be heard in early 2022).  And I am even more excited to see that there was a federal sentencing case on the certiorari granted list, "20-1650 CONCEPCION, CARLOS V. UNITED STATES."  Here is the SCOTUSblog collection of docket entries in this case, and it is interesting to see that (unlike most cases that get granted) the Justices did not need a relisting to decide it should take up this matter.  And here is a link to the cert petition from Mr. Concepcion that sets forth this question presented:

Whether, when deciding if it should “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act of 2018, 21 U.S.C. § 841 note, a district court must or may consider intervening legal and factual developments.

Notably, back in February of this year, this post titled "Reviewing the still uncertain state, and the still certain need, for effective federal crack retroactivity resentencing" reviewed some of the persistent legal questions arising in the thousands of retroactive crack case resentencings that Section 404(b) of the First Step Act of 2018.  I am pleased to see SCOTUS take up some of these issues in Concepcion, and I hope the Justices will be able to some more clarity to retroactive resentencing procedures.

Earlier this week, I flagged in this post a number of other sentencing issues swimming around in the cert pool that are worth watching in the weeks and months ahead.  I assume we will get a much, much, much longer order list on Monday morning where we will likely see cert denied on some of these issues but also possible relisting of others.  So, SCOTUS sentencing fans, stay tuned as engines are just getting started for the new Oct21 Term.

September 30, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Tuesday, September 28, 2021

US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences

Based on data showing huge unfair disparities, the US Sentencing Commission in 1995 — more than a quarter century ago! — sent to Congress proposed guidelines changes to fix the 100:1 crack/powder cocaine disparity by adopting a 1:1 quantity ratio at the powder cocaine level.  But Congress passed, and President Bill Clinton signed, legislation rejecting the USSC’s proposed guideline changes (see basics here and here), thereby ushering in decades more disproportionately severe crack sentences and extreme racial inequities in federal cocaine offense punishments.

Barack Obama at Howard University gave a 2007 campaign speech — exactly 14 years ago today — assailing the crack/powder disparity, and in 2009 the Obama Justice Department advocated for "Congress to completely eliminate the crack/powder disparity."   Sadly, despite strong DOJ advocacy for a 1:1 ratio in April 2009, it still took Congress more than a year to enact any reform to the 100:1 crack/powder cocaine disparity, and then it only could muster a partial reduction in crack sentences rather than the parity advocated by the USSC in 1995 and by DOJ in 2009.  Specifically, the Fair Sentencing Act enshrined a new 18:1 crack/powder quantity disparity ratio into federal drug sentencing statutes and guidelines, and even this modest reform did not become fully retroactive until eight years later with the FIRST STEP Act.

But in early fall 2021, and despite the deep divisions on so many political issues, the vast majority of US Representatives spoke together today to say that federal law should no longer sentence crack and powder cocaine offense differently.  This Hill article explains:

The House passed legislation on Tuesday that would eliminate the federal disparity in prison sentences for crack and powder cocaine offenses, in an effort to enact criminal justice reform on a bipartisan basis. The bill, which lawmakers passed 361-66, is meant to address a gap that its proponents say has largely fallen on Black people and other people of color.

The House passed the measure handily, but the vote divided Republicans. A majority of House Republicans voted for the bill with all Democrats, but the 66 votes in opposition all came from the GOP....

The Anti-Drug Abuse Act of 1986, a law signed by then-President Reagan as part of the “War on Drugs,” established a five-year minimum sentence for possessing at least five grams of crack, while an individual would have to possess at least 500 grams of powder cocaine to receive the same sentence. A 2010 law called the Fair Sentencing Act reduced the cocaine sentencing disparity for pending and future cases, but did not fully eliminate it. And a criminal justice reform bill enacted in 2018 under former President Trump allowed people convicted prior to passage of the 2010 law to seek resentencing.

Under the bill the House passed on Tuesday, defendants who were previously convicted for crack cocaine offenses would also be allowed to petition for sentence reductions.

Rep. Louie Gohmert (R-Texas), a former judge, said the measure was a “a great start toward getting the right thing done” as he recalled dealing with cocaine cases. “Something I thought Texas did right was have a up to 12 months substance abuse felony punishment facility. Some thought it was strange that a strong conservative like myself used that as much as I did. But I saw this is so addictive, it needs a length of time to help people to change their lives for such a time that they've got a better chance of making it out, understanding just how addictive those substances are,” Gohmert said during House floor debate.

The legislation now heads to the Senate, where at least 10 Republicans would have to join with all Democrats to advance it in the evenly divided chamber. A companion bill introduced by Sen. Cory Booker (D-N.J.) currently has five cosponsors, including three Republicans: Sen. Rob Portman (Ohio), Rand Paul (Ky.) and Thom Tillis (N.C.).

I lack knowledge about the ways and means for this kind of bill to get a vote in the Senate soon, but I feel pretty confident that it would get similarly strong support in that cambers if and whenever a vote goes forward. I hope such a vote goes forward soon, since we have all waited more than long enough for more sensible sentencing in this arena.

A few prior recent related posts:

September 28, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

US Sentencing Commission releases updated "Compassionate Release Data Report" covering all of 2020 and first half of 2021

As detailed in prior posts here and here, a few months ago the US Sentencing Commission started releasing short data report titled "Compassionate Release Data."  Though these reports provide only some very basic accounting of the grants and denials of federal compassionate release motions nationwide, they still provide the only "official" accounting of who is getting relief and some of the basics surrounding their demographics. 

Exciting, the latest of these reports was released today at this link and "reflects compassionate release motions decided by the courts during calendar years 2020 and 2021 (January 1, 2020 - June 30, 2021)."  Table 1 of the report shows, perhaps unsurprisingly, that the number of these motions brought and the grant rate declined though the first six months of 2021.  I presume that could reflect the fact that lots of the strongest cases may have received release in 2020 and also concerns about COVID started declining as vaccines became available to federal prisoners.

As I have said before, I hope that the US Sentencing Commission not only continues to release more data on these cases, but also a lot more granular data and analyses about sentencing reduction grants.  I also hope the USSC will (a) track recidivism rates for this population over time, and (b) discuss which guidelines might be still producing excessively long sentences in retrospect as documented through these grants.  The kind of second-look sentencing mechanism now operating the the federal system is not only valuable and important as a means to achieve better justice in individual cases, but also should serve as an important feedback loop providing a kind of on-going audit of the operation of the entire federal sentencing system. 

A few of many prior related posts:

September 28, 2021 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Some notable sentencing issues on SCOTUSblog's "Petitions to Watch" from long conference

Yesterday, the US Supreme Court had its "long conference" to consider the thousands of cert petitions that were fully briefed over the summer recess. SCOTUSblog has a long list of "Petitions We’re Watching" at this link, and here are just some of the sentencing-related ones that caught my eye:

Louisiana v. Hill, No.20-1587

(1) Whether a state may require convicted sex offenders to obtain and carry a state identification bearing the words “sex offender” without facially violating the First Amendment’s prohibition on compelled speech; and (2) whether a convicted sex offender has a First Amendment right not to be prosecuted for fraudulently altering a state identification card after scratching off a statutorily required sex offender designation.

Houston v. U.S., No. 20-1479

Whether a sentencing court must consider applicable sentencing factors codified in 18 U.S.C. § 3553(a) when deciding whether to impose a reduced sentence under Section 404(b) of the First Step Act.

Jackson v. Hudson, No. 21-347

Whether a federal prisoner is entitled to bring a habeas claim under the saving clause of 28 U.S.C. § 2255(e) to challenge the unlawful application of a mandatory minimum sentence, and imposition of a sentence that exceeded the proper statutory maximum, when his challenge was previously precluded by binding circuit precedent that has since been overruled by the circuit sitting en banc on the basis of an intervening decision of the Supreme Court.

Janis v. U.S., No. 21-68

(1) Whether Standard Condition 12 of the U.S. Sentencing Guidelines, codified in U.S.S.G. § 5D1.3(c)(12), unconstitutionally delegates authority to the probation officer; and (2) whether Standard Condition 12 is unconstitutionally vague.

Bryant v. U.S., No. 20-1732

Whether Section 1B1.13 of the United States Sentencing Guidelines is an “applicable” policy statement that binds a district court in considering a defendant-filed motion for compassionate release under 18 U.S.C. 3582(c)(1)(A), as amended by the First Step Act of 2018.

Leontaritis v. U.S., No. 20-1614

(1) Whether, if a jury is instructed to “determine” a fact by indicating a “unanimous finding beyond a reasonable doubt” and does so, the resulting verdict indicates a finding beyond a reasonable doubt, as opposed to a mere failure to find; and (2) whether, if a jury verdict finds a fact beyond a reasonable doubt, a district court’s sentencing decision must accept the jury’s determination or instead may base the sentence on its own independent finding that contradicts the jury’s.

September 28, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, September 27, 2021

"Managing the Pardon Power: Should the Justice Department Remain the Gatekeeper?"

The title of this post is the title of this online panel scheduled for tomorrow and the third and final one in the terrific series of online panels that have been exploring in depth federal clemency powers and practices.  As I detailed in this prior post, this series is jointly organized by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law, the Collateral Consequences Resource Center, the Federal Sentencing Reporter, and the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance at Villanova University Charles Widger School of Law. 

A whole lot of folks are doing great work putting this series together, and Margaret Love merits extra praise for her efforts and for helping to assemble writings on these timely topics in Volume 33, Issue 5 of the Federal Sentencing Reporter (which largely provides the foundation for these panels).  Here are more details about this final panel:

Managing the Pardon Power: Should the Justice Department Remain the Gatekeeper?

Tuesday, September 28, 2021 | 12:30 – 2:00 p.m. EDT | Zoom (register here)

This panel rounds out the theme of the series, by considering whether Donald Trump’s departure from past pardoning practices has paved the way for much-needed reforms in the process by which the president gets advice in pardon matters.  Jeffrey Crouch, author of the most comprehensive recent history of the pardon power, will offer an historical perspective on the pardon process, asking whether it has failed in recent years to serve its original purpose of promoting the rule of law and shielding the president from scandal. Rachel Barkow and Paul Larkin have both proposed moving the pardon process out of the Department of Justice to avoid the stranglehold of federal prosecutors, though each has proposed quite different advisory mechanisms with likely differing outcomes: Barkow would create an independent board of officials to receive applications, apply objective standards, and make recommendations to the president, while Larkin believes pardoning is best managed from inside the White House.  Margaret Love, who served as pardon attorney under Presidents George H.W. Bush and Bill Clinton, has argued that the process by which the president gets advice in pardon matters should stay in Justice but with significant structural changes.  These proposals are a hopeful sign that the future of the pardon power is brighter than its recent past.

Panelists:

Rachel Barkow, vice dean and Charles Seligson Professor of Law, New York University School of Law
Jeff Crouch, assistant professor of American politics, School of Public Affairs, American University
Paul J. Larkin Jr., Rumpel Senior Legal Research Fellow, The Heritage Foundation 
Margaret Love
, executive director, Collateral Consequences Resource Center and former U.S. Pardon Attorney

Moderator:

Douglas Berman, executive director, Drug Enforcement and Policy Center

September 27, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, September 26, 2021

Washington Supreme Court rules 46-year minimum term for juve murderer "unconstitutional de facto life sentence"

The Supreme Court of the State of Washington issued an interesting opinion regarding juvenile sentencing rules late last week in State v. Haag, No. 97766-6 (Wash. Sept. 23, 2021) (available here). Here is how the majority opinion in Haag gets started:

It is well established that “children are different from adults” for sentencing purposes.  State v. Houston-Sconiers, 188 Wn.2d 1, 18, 391 P.3d 409 (2017).  When a child commits the crime of aggravated first degree murder, the federal and state constitutions, the enactments of our legislature, and our case law demand that such a child be treated differently from an adult.  Here, this body of law demands another resentencing hearing for Timothy Haag.

In 1995, Haag was sentenced to mandatory life without parole for a crime he committed at the age of 17.  In 2018, at a Miller-fix resentencing conducted pursuant to RCW 10.95.030, the resentencing court expressly found that “Haag is not irretrievably depraved nor irreparably corrupt.” 1 Verbatim Report of Proceedings (Jan. 19, 2018) at 25.  Yet the court resentenced Haag to a term of 46 years to life; the earliest that he could be released is at the age of 63.  Id. at 27.  Haag sought review in this court, arguing that the trial court erroneously emphasized retribution over mitigation and that his sentence amounts to an unconstitutional de facto life sentence.  We agree.

We hold that the resentencing court erred because it gave undue emphasis to retributive factors over mitigating factors. We also hold that Haag’s 46-year minimum term amounts to an unconstitutional de facto life sentence.  We reverse and remand for resentencing in accordance with this opinion.

September 26, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Friday, September 24, 2021

Law enforcement and prosecutor groups urge Prez Biden to commute sentence of all in home confinement cohort

Via email, I learned this morning about this new letter to Prez Biden from the groups Law Enforcement Leaders to Reduce Crime & Incarceration, Fair and Just Prosecution, and Law Enforcement Action Partnership. Here is how it starts:

We write as individuals and on behalf of our respective national organizations — Law Enforcement Leaders to Reduce Crime & Incarceration, Law Enforcement Action Partnership, and Fair and Just Prosecution — as it pertains to the approximately 4,000 individuals placed on home confinement pursuant the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, who face the continued threat of reincarceration due to the prior administration’s January 15, 2021, Office of Legal Counsel memo (“OLC memo”).  We are pleased to see reports that your Administration is beginning to consider commutations for individuals who have committed nonviolent drug offenses and have been placed on home confinement pursuant the CARES Act.  Joining members of Congress, justice reform advocates across the political spectrum, and companies that currently employ these individuals, we seek to add our law enforcement perspective and urge you to grant clemency to all individuals placed on home confinement pursuant the CARES Act — regardless of underlying offense or sentence.

Some of many prior related posts:

September 24, 2021 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, September 23, 2021

NJ Supreme Court holds, as a matter of state constitutional law, that "fundamental fairness" precludes sentence enhancement based on acquitted conduct

A helpful reader made sure I did not miss this notable unanimous opinion by the Supreme Court of New Jersey in State v. Melvin, NO A-44-19 (N.J. Sept. 23, 2021) (available here).  Sentencing fans and long-time readers should know why I think this ruling is spot-on and today's must-read.  Here is how the opinion gets started:

One of the most important tenets of our criminal justice system is the finality of a jury’s verdict of acquittal. These consolidated appeals test that principle through a common legal issue: whether a trial judge can consider at sentencing a defendant’s alleged conduct for crimes for which a jury returned a not guilty verdict.

In State v. Melvin, the jury found Melvin guilty of second-degree unlawful possession of a handgun and, after two trials, not guilty of the most serious charges against him, including first-degree murder and first-degree attempted murder.  At his second sentencing, the trial court -- notwithstanding the jury’s not-guilty verdicts on the murder charges -- determined that the evidence at trial supported the conclusion that Melvin shot the victims.  Citing United States v. Watts, 519 U.S. 148 (1997), the trial judge found that it was within the court’s broad discretion at sentencing to consider all circumstances of the case, including evidence that Melvin was the shooter.  Despite the jury’s verdict, the trial court found that Melvin not only possessed the weapon, but used it to shoot three people.  The trial court sentenced Melvin to a term of sixteen years’ imprisonment with an eight-year period of parole ineligibility.  The Appellate Division affirmed that sentence.

In State v. Paden-Battle, in a trial before the same judge who presided over Melvin’s case, the jury found Paden-Battle guilty of kidnapping, conspiracy to commit kidnapping, and felony murder. The jury acquitted Paden-Battle of the remaining seven counts, including first-degree murder and conspiracy to commit murder.  At sentencing, the trial judge again relied on Watts to make findings of fact, by a preponderance of the evidence, that Paden-Battle, despite having been acquitted of the most serious murder charges, was the mastermind who orchestrated the victim’s murder.  The trial court stated that Paden-Battle falsified her testimony and found that she was the moving force behind the murder and ordered her co-conspirators to act.  The trial court sentenced Paden-Battle to a sixty-year sentence. On appeal, the Appellate Division vacated Paden-Battle’s sentence and remanded the matter for resentencing, holding that the trial court enhanced her sentence based on its belief -- a belief contrary to the jury’s verdict -- that Paden-Battle ordered the execution.

We granted the petitions for certification in both cases and now reverse in Melvin and affirm in Paden-Battle.  Article I, Paragraph 1 of the New Jersey Constitution bestows upon all citizens certain natural and unalienable rights.  From those rights flows the doctrine of fundamental fairness, which “protects against arbitrary and unjust government action.” State v. Njango, 247 N.J. 533, 537 (2021).  For the reasons stated below, we hold today that fundamental fairness prohibits courts from subjecting a defendant to enhanced sentencing for conduct as to which a jury found that defendant not guilty.

September 23, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, September 21, 2021

Sending a better clemency message while shooting the messenger

This new New Republic commentary, fully headlined " Biden’s Conservative Vision on Clemency: Thousands of incarcerated people went home early thanks to a Covid relief program. Why would the Biden administration send them back to prison?," continues the annoying tendency of blaming the Biden folks for threatening to send the home confinement cohort back to prison when it is the law passed by Congress (as interpreted by two Justice Departments) that has created the problem.  Here are excerpts (with links from the original):

The Cares Act ... gave the Bureau of Prisons discretion to send certain people home early.  The process involved a rigorous vetting, to ensure that the people chosen were low risk and had served a substantial part of their sentence, and it was effective: Of roughly 4,400 people released under the program, only 190 were sent back for violations, a strikingly low number given how easy it is to break the terms of home confinement. No serious crimes have been reported.

But before Donald Trump left office, administration lawyers determined that once pandemic emergency measures were lifted, Cares Act recipients would have to return to prison.  And Biden’s Office of Legal Counsel declined to reverse the memo.  Still, advocates were hopeful that Joe Biden would issue mass clemency.  So far, that hasn’t happened, leaving Cares Act people anxious about their future and frustrating criminal justice advocates....

Last week, Politico reported that some case workers are being encouraged to have their Cares clients apply to the Justice Department’s Office of the Pardon Attorney, which sounds promising.  But it also suggests that Biden is wedded to an inefficient process that’s created a backlog of close to 16,000 petitions.... 

It’s not clear whether special considerations will be applied to Cares Act recipients, perhaps allowing them to avoid the long trek through the Justice Department.  In fact, not much is clear at all.  Kevin Ring, president of Families Against Mandatory Minimums, said that outside of some leaks to the media, both Cares Act inmates and their advocates are in the dark.  “It’s a crazy lack of transparency,” Ring said.  “Friday afternoon, there’s a phone call to BOP halfway houses saying, this person should fill out a clemency petition in the next couple of days.  Who?  Why?  What [are] the criteria?”...

Amy Ralston Povah, who runs the CAN-DO Foundation, which helps nonviolent drug offenders, is hopeful but frustrated....  She added that Biden’s vision for who deserves early freedom is exceedingly conservative.  “Nonviolent drug offenders are such a limited category,” Povah said.  “Why are others left out?” 

I share Kevin Ring's concerns about a "crazy lack of transparency," though I want to be hopeful along with Amy Ralston Povah about where this is headed.  But I am frustrated because so many seem content to assail the Biden Administration about a problem that is clearly of Congress's making.  As I explained in this post some months ago, titled "Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?",  though Prez Biden could (and I think should) use his clemency authority to extended home confinement for those at risk of being sent back to federal prison post-pandemic, Congress is the body that created the CARES Act home confinement authority, and Congress can and should amend the CARES Act to do extend that authority though a few words in an express statutory provision.  Put simply, this matter is a statutory problem that calls for a statutory fix, and blaming Prez Biden for not fully fixing this problem strike me as shooting the messenger. 

I get especially frustrated by this discourse when it is members of Congress who are the ones urging Prez Biden to fix the statutory problem created by Congress.  As explained in this Hill piece, late last week a new letter from more than two dozen House Democrats called on "President Biden to commute the sentences of thousands who were placed on home confinement."  Frustrations aside, I do like that this new letter has legislators asking Prez Biden to improve the existing and badly broken clemency infrastructure.  Here is a key paragraph from the letter:

In addition to the 4,000 people who have been released to home confinement, there are another 15,752 people who, in the midst of this infectious and deadly pandemic, have pending clemency petitions with no real insight on the best way forward for their case.   Thousands with pending clemency petitions have been waiting for a response for years as their cases have languished during previous administrations, including most recently the Trump administration.  While the Trump administration made an effort through home confinement to reduce the number of people inside of BOP facilities, thousands more have been ignored.  The dismissal of their petitions serves only to demonstrate just how ambiguous and broken our clemency system has become.  We, therefore, implore you to establish an advisory board — independent of the Department of Justice — to streamline and modernize the decades-old clemency process, and provide expeditious review of the thousands of cases awaiting answers to their clemency petitions.  This advisory board must address the racially disproportionate impacts of our criminal-legal system.  There is no reason to wait.

Even though I am never keen to see folks shooting the messenger, I am always pleased to see a better clemency message being delivered in the process.  If the push for clemency for the home confinement cohort ends up helping to get our clemency process improved, all the frustrations may almost be worthwhile.

Some of many prior related posts:

UPDATE: The PBS Newshour had this recent segment on these matters under the headline "Inmates released to home confinement during pandemic fear ‘devastating’ reincarceration."

September 21, 2021 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, September 20, 2021

"Supplementing the Pardon Power: Second Looks and Second Chances"

The title of this post is the title of this online panel scheduled for tomorrow and the second in a terrific series of online panels that will explore in depth the federal clemency powers.   As I detailed in this prior post, this series is jointly organized by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law, the Collateral Consequences Resource Center, the Federal Sentencing Reporter, and the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance at Villanova University Charles Widger School of Law. 

A whole lot of folks are doing great work putting this series together, and Margaret Love merits extra praise for her efforts and for helping to assemble writings on these timely topics in Volume 33, Issue 5 of the Federal Sentencing Reporter (which largely provides the foundation for these panels).  Here are more details about this first panel:

Supplementing the Pardon Power: Second Looks and Second Chances

Tuesday, September 21, 2021 | 12:30 – 2:00 p.m. EDT | Zoom  (register here)

This panel will look at supplementing, if not supplanting, the pardon power in performing functions that may be better performed by the courts.  That is, should at least some of the pardon action be removed to the federal courts through statutory mechanisms to reduce prison sentences and restore rights and status?  Judge John Gleeson will describe his firm’s Holloway project, which sought to reduce its clients’ lengthy prison terms through the sentence reduction authority in the First Step Act, and consider the extent to which this statutory mechanism should be used to take some of the burden off the pardon power.  Professors JaneAnne Murray and Jack Chin will consider how federal law might be reformed to allow courts to grant pardon-like relief following completion of sentence, through the lens of two 2016 cases in which Judge Gleeson granted post-sentence relief to women he had sentenced more than a decade earlier.  Judge Beverly Martin will consider the role of courts as dispensers of mercy, based on her experiences as a federal prosecutor, a federal trial judge, and a federal appellate judge.  Did Trump’s departure from past pardoning practices pave the way for moving many of pardon’s functions into the courts, as most states have done?

This event is hosted by the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance at Villanova University Charles Widger School of Law.

Panelists:

Jack Chin, Edward L. Barrett Jr. Chair of Law, Martin Luther King, Jr. Professor of Law, and Director of Clinical Legal Education, University of California, Davis, Law School
John Gleeson, attorney and former United States District Judge of the United States District Court for the Eastern District of New York
Judge Beverly Martin, U.S. Court of Appeals for the Eleventh Circuit
JaneAnne Murray, professor of practice, University of Minnesota Law School

Moderator:

Carter Stewart, executive vice president, Andrew W. Mellon Foundation, and former U.S. Attorney for the Southern District of Ohio

September 20, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, September 19, 2021

Split Eight Circuit panel upholds order Missouri must improve its parole process to comply with Miller

In this post from two years ago, I noted a federal district court ruling finding that the Missouri's parole policies and practices failed to give juveniles subject to life terms a meaningful opportunity to obtain release as required by Eighth Amendment doctrines. This past Friday, a split Eighth Circuit panel upheld the bulk of this ruling in Brown v. Precythe, No. 19-2910 (8th Cir. Sept. 17, 2021) (available here). Here is how the majority opinion starts and ends:

This appeal arises from a constitutional challenge to Missouri’s remedial parole review process for individuals sentenced to mandatory life without the possibility of parole for homicide offenses committed as juveniles.  The plaintiffs, a class of Missouri inmates who were sentenced to mandatory life without parole for such juvenile homicide offenses (collectively, Plaintiffs or the JLWOP Class), claim that Missouri’s parole review policies and practices violate their rights to be free from cruel and unusual punishment and their rights to due process of law under the U.S. Constitution and the Missouri Constitution.  The district court granted summary judgment in favor of Plaintiffs, holding that Missouri’s parole review process did not provide a meaningful opportunity for release based on Plaintiffs’ demonstrated maturity and rehabilitation.  After ordering Missouri to present a plan to remedy those constitutional violations, the district court also ordered that Missouri (1) could not use any risk assessment tool in its parole review process unless the tool was developed specifically to address members of the JLWOP Class, and (2) was not required to provide state-funded counsel to JLWOP Class members in their parole proceedings.  Having jurisdiction under 28 U.S.C. § 1291, we affirm in part, vacate in part, and remand to the district court for further proceedings....

Accordingly, we affirm the order of the district court that the parole review process of SB 590 violated Plaintiffs’ Eighth Amendment rights, and we affirm the order that Missouri cannot use a risk assessment tool in its revised parole proceedings unless it has been developed to address the unique circumstances of the JLWOP Class.  We vacate the order regarding appointment of counsel and remand for further proceedings consistent with this opinion.  

Judge Colloton's extended dissent gets started this way:

In Montgomery v. Louisiana, 577 U.S. 190 (2016), the Supreme Court addressed how a State may remedy a violation of the rule of Miller v. Alabama, 567 U.S. 460 (2012), that a court may not sentence a juvenile homicide offender to a mandatory term of life without parole.  Montgomery declared that “[a] State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.”  577 U.S. at 212. Missouri did what Montgomery prescribed: it provided by statute that a juvenile homicide offender who was originally sentenced to mandatory life without parole may petition for parole after serving twenty-five years of his sentence.  Mo. Rev. Stat. § 558.047.1(1).  That should be the end of this case.

The court goes much further and purports to apply the Eighth Amendment rule of Miller and Montgomery regarding imposition of sentence in a criminal case to Missouri’s parole process.  The result is a federal injunction that dictates detailed changes to the Missouri parole procedures and a remand to consider whether the Constitution requires the appointment of state-funded lawyers to represent juvenile homicide offenders in parole proceedings.  It seems to me that there are several analytical difficulties with the court’s approach.

September 19, 2021 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, September 15, 2021

"COVID-19 Relief and the Ordinary Inmate"

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

As scholars and advocates have lamented the deficiencies of remedies pre- and post-conviction for the extraordinary, the “ordinary” are not saddled with slow and deficient remedies -- they have none.  This Essay explores this absence of such relief for those unable to make an extraordinary claim during the COVID-19 public health crisis of 2020.  For the ordinary men, women, and children held in custody in 2020 and beyond, pretrial detention and sentencing laws make no exception in the face of a potentially fatal contagion or the public health crisis it creates.  Yet, the pandemic highlights the reality that systematic flaws -- carceral systems that permit mass infection within and outside their walls and release triggers premised on extraordinary circumstances or conditions -- are a sort of roulette of disaster for ordinary people in custody who lack access to pre- and post-conviction relief.  As problematic as these flaws are, they also represent an opportunity to reconsider the priorities that animate such relief and to question (or reimagine) systems that rebalance those priorities not just around the lives of the extraordinary, but around the lives of the ordinary. 

September 15, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, September 14, 2021

New letter with prominent signers urges Prez Biden to pardon all non-violent marijuana offenders

As reported in this press release, "150+ artists, athletes, producers, lawmakers, law enforcement officials, academics, business leaders, policy experts, reform advocates, and other professionals, signed a letter to U.S. President Joseph R. Biden, Jr. requesting a full, complete, and unconditional pardon to all persons subject to federal criminal or civil enforcement on the basis of a nonviolent marijuana offense."  (Disclosure: I am a signer of this letter.)  The full letter is available at this link, more about the effort is available here as well as from the press release:

The letter, which was spearheaded by the advocacy group The Weldon Project, includes signatures from celebrities such as Drake, Killer Mike, Deion SandersAl Harrington and Kevin Garnett.  Kazan will also participate in a live-streamed event today airing on Vimeo and moderated by Politico reporter Mona Zhang,  at 11:00 a.m. PT to discuss the letter and reinforce the case to provide clemency to all federal nonviolent marijuana offenders.

"The harms of incarceration are obvious, but the pains of federal marijuana convictions transcend prison walls, making it more difficult for someone to get a job, access affordable housing, and receive an education.  A conviction can forever limit an individual's constitutional rights and can put the American dream further out of reach for an entire family. Enough is enough.  No one should be locked up in federal prison for marijuana.  No one should continue to bear the scarlet letter of a federal conviction for marijuana offenses," the letter says, noting that three-quarters of the states have now abandoned the federal government's blanket criminal ban in favor of safe, regulated legal access to marijuana for adults and/or those with qualifying medical conditions.

The request to U.S. President Biden comes at a time when an overwhelming 68% of U.S. adults support the federal legalization of cannabis, and 1 in 3 Americans live in states where cannabis is legal for adults to use.  Thousands of individuals are currently incarcerated in the United States for nonviolent cannabis-related crimes, while countless others have had their rights and livelihoods stripped away because of prior arrests and sentences....

The letter to President Biden points out that a full pardon of federal marijuana offenders is consistent with the Constitution and past practices of presidents from both political parties.  "In 1974, President Ford established a program of conditional clemency for Selective Service Act violators.  In 1977, President Carter issued a categorical pardon to all Selective Service Act violators, closing the book on a costly and painful war.  President Biden has the power to do the same for the federal war on marijuana.  Through his act of constitutional grace, a general clemency will send a clear and powerful message that our country is truly taking a new course on criminal justice policy and practice."  In December of 2020, Angelos was fully pardoned by President Trump.

The stories of those who would be helped by a pardon are compelling: Drake, Meek Mill, Lil Baby, Killer Mike, and dozens of other hip-hop artists, for example, signed on in support of their friend and fellow rapper Ralo, who is facing 8 years for a nonviolent cannabis offense. "I appreciate my friends and peers in the hip-hop community, especially Drake, supporting my clemency because it's just not right that corporations are allowed to violate federal law and become millionaires while people like myself go to prison for years," Ralo said. "This is hypocrisy. I hope that Joe Biden honors his campaign promise and grants us clemency without delay, so I can return to my family and community."

September 14, 2021 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Last call for "Donald Trump’s Theatre of Pardoning: What Did We Learn?"

Today is the day for this online panel, the first in a terrific series of online panels exploring in depth federal clemency powers.  As explained in this prior post, this series is jointly organized by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law, the Collateral Consequences Resource Center, the Federal Sentencing Reporter, and the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance at Villanova University Charles Widger School of Law. 

A whole lot of folks are doing great work putting this series together, and Margaret Love merits extra praise for her efforts and for helping to assemble writings on these timely topics in Volume 33, Issue 5 of the Federal Sentencing Reporter (which largely provides the foundation for these panels).  Here are more details about today's first panel:

Donald Trump’s Theatre of Pardoning: What Did We Learn?

Tuesday, September 14, 2021 | 12:30 – 2:00 p.m. EDT | Zoom  (Register here)

This panel will examine the unusual nature of President Donald Trump’s pardoning, looking at the grants themselves and the process that produced them.  Professors Bernadette Meyler and Frank Bowman, both scholars of the pardon power, will look to history for anything comparable to Trump’s use of the pardon power, and comment on its implications for the role that pardon has historically played in the U.S. justice system.  Amy Povah will share her experiences as someone who was personally involved in recommending cases to the White House at the end of the Trump Administration.  Kenneth Vogel will share his experiences as a journalist covering Trump’s pardons for the New York Times.  This panel will set the stage for the two subsequent panels about the future of presidential pardoning, by asking basic questions about the role of a regular pardon process and the result of it having been sidelined by Trump.  It will also consider whether Trump’s pardons were an aberration or the predictable result of trends in pardoning over the past thirty years.

Panelists:

Frank Bowman, Floyd R. Gibson Missouri Endowed Professor of Law, University of Missouri School of Law
Bernadette Meyler, Carl and Sheila Spaeth Professor of Law, Stanford Law School
Amy Povah, founder, CAN-DO Justice through Clemency
Kenneth VogelNew York Times

Moderator:

Margaret Love, executive director, Collateral Consequences Resource Center and former U.S. Pardon Attorney

September 14, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, September 13, 2021

Action beginning on Biden clemency plan for some drug offenders in CARES home confinement cohort

As discussed in this post from late last month, there has been talk that Prez Biden might use his clemency powers to help ensure that some member of the CARES home confinement cohort does not have to return to prison after the pandemic.  This new Politico piece, headlined "Biden starts clemency process for inmates released due to Covid conditions," reports on new action on this front:

The Biden administration has begun asking former inmates confined at home because of the pandemic to formally submit commutation applications, criminal justice reform advocates and one inmate herself tell POLITICO.

Those who have been asked for the applications fall into a specific category: drug offenders released to home under the pandemic relief bill known as the CARES Act with four years or less on their sentences.  Neither the White House nor the Department of Justice clarified how many individuals have been asked for commutation applications or whether it would be expanding the universe of those it reached out to beyond that subset.  But it did confirm that the president was beginning to take action.

“The Biden-Harris Administration is working hard every single day to reform our justice system in order to strengthen families, boost our economy, and give Americans a chance at a better future," said White House spokesperson Andrew Bates. "As part of this, President Biden is deeply committed to reducing incarceration and helping people successfully reenter society.  As he has said, too many Americans are incarcerated -- and too many of those incarcerated are Black and Brown. That is why the President is exploring the use of his clemency power for individuals on CARES Act home confinement. The Administration will start the clemency process with a review of non-violent drug offenders on CARES Act home confinement with four years or less to serve.”

The requests from the administration are a concrete sign that the president is planning to use his clemency powers to solve what was shaping up to be one of the thornier criminal justice matters on his desk. The New York Times previously reported that such requests for applications would be coming....

“While we are excited to hear the Biden administration is actively seeking clemency petitions for non violent drug offenders, we pray he will not carve up CARES Act recipients into small subsets,” said Amy Povah, a former prisoner who has become a well known clemency advocate.  “No other president in history has been handed a 'dream come true' opportunity to easily identify a large group of individuals who have already been vetted and successfully integrated into society, many of whom are now gainfully employed, found housing, and are healing the family unit that was injured due to tough-on-crime sentencing policies that previous administrations have acknowledged are horribly unjust.”

Rachel Hanson, 37, was one of those paroled inmates who was at risk of being sent back to her federal facility.  She was 8.5 years into a 151 month sentence for charges of possession with intent to distribute an unspecified amount of cocaine.  She had been released from prison in August of 2021 under the CARES Act but kept in home confinement wearing an ankle monitor.  She was contacted by her case manager on Friday, who told her that her name was submitted by the Department of Justice for expedited clemency and that she needed to fill out her clemency packet right away.

She described the events of the past few days as a blur. “I was so surprised,” she said. “I didn’t expect it.  You hear about clemency. You know it happens to people but you don’t always see.” Hanson has three children, one of whom is a senior in high school. She has a job interview lined up for Tuesday for a production coordinator post at a welding factory.  She has to rush to get her clemency packet completed first....

Udi Ofer, the ACLU’s deputy national political director, said that while he was heartened that the administration was now acting, he faulted the administration for acting in a less than transparent way with advocates and advocacy groups in the criminal justice space.  He said he was troubled by the possibility that it was cleaving off CARES Act recipients into those deserving commutation and those who didn’t.  He noted that the Bureau of Prisons, in originally releasing inmates under the CARES Act, had already made a determination between those who posed a threat of violence and those who didn’t.  “On the other hand, through the anecdotal information we’re seeing, we are worried that the White House is viewing this issue too narrowly and unnecessarily restricting the category of people being asked to apply for clemency,” said Ofer.

Some advocates for clemency and other forms of sentence reduction also expressed concern that the Biden administration’s move essentially put it in the position of working from a list developed by the Bureau of Prisons during the Trump administration, in a process critics said lacked clear guidelines and transparency.  “It’s not clear how the Bureau of Prisons chose people for this home confinement program, which raises the question of whether it’s fair to give a special benefit to these folks not available to those who have filed clemency petitions sometimes years ago and have been patiently waiting,” said Margaret Love, who served as Justice Department pardon attorney under Presidents George H.W. Bush and Bill Clinton.

I am very pleased to hear of some tangible developments on this long-simmering front, though I would really now be eager to see some detailed accounting of how many members of the CARES home confinement cohort are drug offenders with four years or less on their sentence.  I am also not going to expect or assume that Prez Biden is going to grant clemency to a notable number of individuals until he actually grants clemency to a notable number of individuals.  And I hope this process might prove transparent along the way (as well as robust and just the start of  overdue clemency efforts).

I am now wondering about the expected specifics of clemency grants by Prez Biden for some members of the CARES home confinement cohort.  Through clemency, Prez Biden could shorten the prison terms of individuals so that they have no more time left to serve in prison or on home confinement.  I am assuming that is the working plan, though I think Prez Biden could also opt to just convert remaining prison terms into time to be served only and entirely on home confinement.  As I have highlighted in prior posts here and here, many member of the CARES home confinement cohort could be bringing sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A), and it is interesting to think how pending clemency talk and coming action might impact efforts to secure relief through the courts.

Interesting times.

Some of many prior related posts:

September 13, 2021 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Saturday, September 11, 2021

"Expanding Compassion Beyond the COVID-19 Pandemic"

The title of this post is the title of this paper now on SSRN authored by Katie Tinto and Jenny Roberts. Here is its abstract:

Compassionate relief matters.  It matters so that courts may account for tragically unforeseeable events, as when an illness or disability renders proper care impossible while a defendant remains incarcerated, or when family tragedy leaves an inmate the sole caretaker for an incapacitated partner or minor children.  It matters too, as present circumstances make clear, when public-health calamities threaten inmates with literal death sentences.  It matters even when no crisis looms, but simply when continued incarceration would be “greater than necessary” to achieve the ends of justice.

September 11, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Thursday, September 09, 2021

Interesting look at efforts to shine more light on, and get better results from, New York parole practices

Via email I learned of this lengthy article in the Fordham Law magazine discussing the interesting work of Fordham Law's Parole Information Project.  Here is part of the article (with links from the original):

Just as the pandemic has revealed racial disparities in access to health care (and vaccines), dig into New York State’s parole process and you will find racial disparities in access to justice.  An analysis by Albany’s Times-Union newspaper found that of 19,000 parole decisions made in New York State over the past two years, 41 percent of white inmates in New York State prisons were granted parole, while only 34 percent of Black inmates and 33 percent of Hispanic inmates were paroled.  And an earlier study by The New York Times found that fewer than one in six Black or Hispanic men were released at their first hearing, compared with one in four white men.

Overall, 12,000 incarcerated individuals are considered for parole in New York State every year, and a large majority are denied.  Worse, most of the families and pro bono lawyers who are trying to help these prisoners will never know why — the process is that opaque....

“Too often, with issues around mass incarceration, we look at the beginning of the system: who is getting arrested, the sentences they are getting,” says [Martha] Rayner, {who co-directs Fordham Law School’s Criminal Defense Clinic].  “But more and more, there’s a new understanding that if we are going to decarcerate [the prison population], parole is a key area of reform.”

Fordham Law School is on the cutting edge of that reform with its Parole Information Project, a unique database of parole documents that aims to make the archaic, Byzantine parole and parole-appeal process in New York State easier to navigate and more transparent.

With nearly 1,000 parole board transcripts and interviews, assessment reports, and appeal decisions online, all in a searchable, free, and publicly accessible database, it’s possible for families, advocates, attorneys, and, really, anyone, to discover which parole commissioners are making what decisions and exactly what happens in those once-mysterious parole and parole-appeal meetings, and to look for patterns and precedents that can aid anyone focused on parole be more effective and powerful in their efforts.

Now, in the wake of Black Lives Matter as well as two pending New York State laws aimed at reforming the parole system, Fordham Law’s parole project is ramping up. A $100,000 grant from Goldman Sachs will pay for a fellow focused on parole work and add crucial resources to expand the program. “The stars are aligned,” says Rayner, referring to both the grant and the aforementioned two New York State laws up for consideration that could make it easier for those eligible for parole to get it: the Fair and Timely Parole bill and The Elder Parole Bill.

The grant will also go a long way toward helping the parole project team overcome a number of challenges, as well as continue to grow the database. “For any meaningful statistical information, you need a certain volume of documents, and it takes time to get them, to redact names of individuals for privacy, and to revise the database to stay up to date with the most current laws,” explains Yael Mandelstam, the Maloney Library’s associate librarian for technical services.

September 9, 2021 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)