Sentencing Law and Policy

Another round of coverage of Prez Trump's clemency grants (and some folks left behind)

It is now nearly two full week since former Prez Trump issued his large batch of clemencies in his final hours in office.  As I mentioned in this post last week, Trump's entire clemency record is full of fascinating and frustrating stories with respect to individual cases and the body of clemency work.  I did a round-up of recent pieces assessing Trump's clemency activities law week, but another week of press coverage reveals another set of interesting stories about both clemencies granted and not granted:

From CBS News, "Man serving life sentence for non-violent crime reunites with family after Trump pardon: 'A piece of me is back'"

From CNN, "This former prisoner had an unlikely supporter: the judge who sentenced him"

From Forbes, "The Inside Story Of A Trump Pardon Gone Wrong"

From Newsday, "How the plan to grant clemency to Sheldon Silver was scuttled"

From Politico, "The Real Scandal Is the Pardon Trump Didn’t Give: Rufus Rochell checked all the right boxes for clemency: an exemplary record in prison, advocacy out of it, and a friendship with a famous Trump booster. So why didn’t he get it?"

From SF Weekly, "Meet the Cannabis Offenders Pardoned by Trump"

I hope it will not be too long before we have some clemency action by Prez Biden to talk about, but I am not really all that optimistic on that front. 

"Assessing Graham v. Florida at the Ten-Year Mark: Progress and the Prospects for Ongoing Juvenile Sentencing Reform"

The title of this post is the title of this great looking upcoming symposium being conducted by the Catholic University Law Review this coming Friday, February 5, 2021 starting at 1pm EST. Here is how the event is described and the planned coverage (click through to see all the great speakers):

Three Supreme Court decisions in the last decade have dramatically reshaped the treatment of juveniles in our criminal justice system.  In Graham v. Florida (2010), the Court held that juveniles may not be sentenced to life without parole (LWOP) for non-homicide crimes.  Two years later, in Miller v. Alabama (2012), the Court held that even juveniles convicted of homicide may not be sentenced to mandatory LWOP.  Finally, in Montgomery v. Louisiana (2016), the Court held that Miller was retroactively applicable, thereby entitling several thousand individuals to a resentencing hearing at which their youth and all its mitigating attributes would be taken into account.  These cases not only significantly curbed the uniquely American practice of sentencing minors to LWOP, but also, together they stand for the proposition that children are different for purposes of sentencing.

Ten years after the landmark decision in Graham, this symposium will explore the impact that these cases have had on juvenile sentencing in the LWOP context and more broadly. The first of three panels will include practitioners who can provide a firsthand perspective on resentencing hearings and how they are playing out in courtrooms across the country.  The second panel will consider the legislative effects of Graham and will include policymakers working on the ground to pursue related juvenile sentencing reforms. Finally, the closing panel will afford attendees an opportunity to hear directly from individuals affected by Graham, that is, those who were sentenced to life imprisonment as juveniles and have now come home.

The Program

1:00 p.m.  Graham v. Florida at the Ten-Year Mark

1:30 p.m.  Resentencing Hearings Post-Graham

2:45 p.m.  Legislative Effects of Graham

4:00 p.m.  Life after Graham

ACLU urging Prez Biden to "use his clemency powers to bring home 25,000 people" from federal prisons

In this post yesterday reviewing commentary on former Prez Trump's use of the clemency power, I mentioned that on this front I am always more eager to look forward than look back.  Consequently, I am pleased to see that via this press release that the ACLU is looking forward and pressing the new President to use his clemency powers boldly.  Here are excerpts:

On Tuesday, the Biden administration announced a slate of executive orders on racial justice. Notably missing was any executive action to boldly use his power of clemency. Today, the American Civil Liberties Union launched a six-figure advertising buy asking President Biden to honor his commitment to significant decarceration by immediately using his clemency authority to help tens of thousands of people in federal prison who could be safely released immediately.

A poll released by the ACLU last year found widespread support for executive officials to use their clemency authority to correct past injustices.... “The American public, voters, and most importantly, incarcerated people and their families were encouraged by President Biden’s commitment to reduce our country’s prison population significantly. Now that he is in office, the president has the opportunity to act on this commitment and correct the harms created by decades of racist policies that have led to the unjust and disproportionate incarceration of Black and Brown people by using his executive power to grant clemency to thousands of people,” said Cynthia Roseberry, deputy director of the ACLU’s Justice Division and former project manager for the Obama administration’s 2014 Clemency Initiative. “Clemency provides an opportunity for the Biden administration to show mercy to those who are incarcerated, repair injustices, and mend communities most impacted by mass incarceration. The new administration must commit itself to the routine and bold use of clemency.”

Specifically, the ACLU is asking President Biden use his clemency powers to bring home 25,000 people in some of our most vulnerable populations including individuals who are currently incarcerated under statutes that have since changed, older people and medically vulnerable people, particularly people at risk of COVID-19 infections, and people incarcerated for drug offenses. Collectively, these categories add up to tens of thousands of people currently incarcerated in the federal prison system.

I am quite pleased that the ACLU is making a big, big ask in this way, but I think it critical for everyone to also be pushing Prez Biden to just get his clemency pen flowing ASAP in even modest ways.  Though it would be amazing to see thousands of commutations in short order, Prez Biden could send a powerful signal by simply making a regular habit of commuting, say, a few dozen sentences every week while also encouraging all the nation's governors to do the same. 

If Prez Bden would just grant 10 clemencies each week (with perhaps five pardons and five commutations), he would set a record-setting pace for the use of the historic clemency power.  According to the latest BOP data, there are over 10,000 federal prisoners aged 60 or older and over 66,000 in for drug offenses; surely five can be found among this group each week who could safely be released from confinement.  There are hundreds of thousand of Americans still bearing the burdens of a long-ago federal conviction, surely five can be found among this group each week who deserve a pardon.

Interestingly, though not properly attributed to anything done by the Biden Administration, the federal prison in the last week has increased by over 400 persons.  Last week, BOP reported the federal prison population at 151,646; today, BOP reports that it stands at 152,071.  This reality provide an important reminder that, absent proactive and sustained effort to decarcerate, the federal punishment bureaucracy may often be lkely to drive up prison populations.

Reviewing Prez Trump's clemency work from a number of perspectives

It is now a full week since former Prez Trump issued a large batch of clemencies in his final hours in office (basics here and here).  The final 140+ clemencies on the final day, and Trump's entire clemency efforts, are full of fascinating and frustrating stories with respect to individual cases and the entire body of clemency work.  Here is just a partial round-up of recent pieces assessing Trump's clemency record: 

From the Business Insider, "Trump's pardons may be poorly worded enough to leave some people on the hook"

From the Center for Responsive Politics, "Trump-tied lobbyists paid massive sums to push pardons"

From Law360, "Trump Pot Pardons A Bittersweet Win For Clemency Groups"

From Reason, "Presidential Mercy Is a Woefully Inadequate Remedy for Injustice: The controversy over Trump’s pardons and commutations highlights longstanding problems with clemency."

From the New York Post, "Comparing presidential pardons through the years"

From the New York Times, "The Road to Clemency From Trump Was Closed to Most Who Sought It: Of the nearly 240 pardons and commutations he granted during his term, only 25 came through the regular Justice Department process. The rest were a product of connections, influence and money."

From the New York Times, "For Prosecutors, Trump’s Clemency Decisions Were a ‘Kick in the Teeth’: Commutations in high-profile Medicare fraud cases have elicited anger among those who spent years pursuing complex prosecutions."

I may have more to say about Prez Trump's record in future posts, but on this front I am always more eager to look forward than look back.  Looking forward, I must note (and already complain) that Prez Biden has been setting records for execution action during his first week in office and yet has not yet used his clemency power or said a work about clemency reform.  

UPDATE: I am pleased to now be able to add that the Federal Sentencing Reporter is planning to cover Prez Trump's clemency record in a forthcoming issue, and FSR's publisher has this new posting on its blog providing a bit of context. That posting includes these paragraphs:

Donald Trump was certainly no exception to the tradition of presidents making waves through distinctive use of the clemency power, and the Federal Sentencing Reporter will be continuing a modern tradition of devoting a full issue to examining a president’s grants and considering clemency’s future.  Notably, Trump generally did not concern himself with the recommendation of the Justice Department’s Office of the Pardon Attorney, which has long played a central role in advising the president on such matters.  In addition to exploring the substantive clemency choices made by Trump, FSR‘s forthcoming June 2021 issue will also discuss what clemency process ought to be embraced by presidents to ensure the most effective and responsible use of this historic power.

FSR’s first extensive coverage of federal clemency actions appeared in a special double issue prompted by Bill Clinton’s high-profile and controversial pardons issued on his last day in office back in 2001.  The decision by George W. Bush to commute the sentence of Administration official Scooter Libby in 2007 prompted another FSR issue on clemency as a form of sentencing power.  And in 2017, FSR devoted a full issue to assessing Barack Obama’s remarkable and record-setting commutations resulting from the “Clemency Project” he set up toward the tail end of his second term.

Two more new 3582(c)(1)(A) reductions to remedy stacked 924(c) sentences reformed by FIRST STEP Act

As regular readers know, I have made much of the FIRST STEP Act provision now allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  The BOP reports here that a total of 2,693 of these motions have now been granted in the 25 months since the FIRST STEP Act became law.  The vast majority of the sentencing reduction motions brought by federal prisoners and granted by federal district judges these days are focused on the health threat posed by COVID.  But judges are still rightly finding other "extraordinary and compelling reasons" warranting sentencing reductions.

A helpful reader recently flagged for me two great new district court rulings using § 3582(c)(1)(A) to undo the now-repealed harshness of severe stacking of mandatory minimum 924(c) counts.  Both rulings ought to be read in full as yet another set of examples of the ridiculousness and injustice of (post-trial) sentences that had to be imposed by judges under mandatory sentencing provisions, and to appreciate how the FIRST STEP Act helps to restore at least a little sanity and justice in this ugly part of the federal sentencing world.  I will here just note the openning paragraphs and provide a link to the full opinions:

US v. McDonel, No. 07-20189 (ED Mich. Jan. 13, 2021):

Defendant Robert McDonel, then 21 years old, was sentenced to over 100 years in prison in 2008 after engaging in a spree of auto parts store robberies using a handgun.  That extraordinarily harsh sentence was the product of a statutory sentencing scheme that required enhancing and stacking sentences for multiple firearm brandishing offenses even when the crimes were committed as part of the same episode and charged in a single indictment.  Congress since has corrected that Draconian measure, but the legislation does not help McDonel, as the amendment is not retroactive. He asks the Court for relief under 18 U.S.C. 3582(c)(1)(A)(i), as amended by section 603(b)(1) of the First Step Act of 2018, Pub L. 115-391, 132 Stat. 5194, 5239, which allows a sentence reduction for “extraordinary and compelling reasons.”  The gross disparity created by the legislative changes, which mitigated the harshness in the sentencing scheme to which McDonel was subjected, coupled with McDonel’s youth and rehabilitative efforts, qualify as extraordinary and compelling reasons under section 3582(c)(1)(A)(i). Other factors that the Court also must consider favor relief.  The motion will be granted.

Download McDonel opinion

US v. Nafkha, No. 2:95-CR-00220-001-TC (D Utah Jan. 11, 2021):

Prisoner Mounir Nafkha moves for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i), asking the court to reduce his nearly 73-year sentence in the custody of the United States Bureau of Prisons (BOP) to time served.  To date, Mr. Nafkha has served approximately 25 years of his sentence. He asserts that the circumstances surrounding his sentence — which consists of four consecutively “stacked” counts under 18 U.S.C. § 924(c) — constitute extraordinary and compelling reasons for his early release.  The court finds that Mr. Nafkha has satisfied his burden of showing extraordinary and compelling reasons to release him and that the balance of sentencing factors set forth in 18 U.S.C. § 3553(a) warrant his release. Accordingly, his motion (ECF No. 214) is GRANTED.

Download Nafkha Grant

Notable OLC opinion on "Home Confinement of Federal Prisoners After the COVID-19 Emergency"

In this post from this past October, I wondered "Will some (most? all?) federal prisoners transferred to home confinement be returned to prison after the pandemic ends?".  That post was prompted by this Walter Palvo piece at Forbes reporting on a US Attorney suggesting that persons who BOP placed on home confinement in response to COVID would be returned to prison after the pandemic ended for any remaining time.  Though the end of the pandemic still seems depressingly far away, the outgoing Trump Justice Department addressed this issue last week when the Office of Legal Counsel put out this opinion titled ""Home Confinement of Federal Prisoners After the COVID-19 Emergency."  Here is how it gets started:

The Federal Bureau of Prisons (“BOP” or “the Bureau”) has statutory authority to place a prisoner serving a term in a federal prison in home confinement for the concluding portion of his sentence. See 18 U.S.C. § 3624(c)(2).  In connection with the COVID-19 pandemic, Congress expanded the authority of the Director of BOP to place federal prisoners in home confinement earlier than that statutory period.  See Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, § 12003(b)(2), 134 Stat. 281, 516 (2020) (“CARES Act”).  The question is what happens to these prisoners once the pandemic emergency ends.  At that time, some inmates will have completed their sentences or be sufficiently close to the end to be eligible for home confinement.  Other inmates, however, may have a substantial time to go before becoming eligible.  Although the pandemic emergency remains ongoing, the issue arises because BOP must plan for an eventuality where it might need to return a significant number of prisoners to correctional facilities.

We conclude that the CARES Act authorizes the Director of BOP to place prisoners in home confinement only during the statute’s covered emergency period and when the Attorney General finds that the emergency conditions are materially affecting BOP’s functioning.  See id.  Should that period end, or should the Attorney General revoke the finding, the Bureau would be required to recall the prisoners to correctional facilities unless they are otherwise eligible for home confinement under 18 U.S.C. § 3624(c)(2).  We also conclude that the general imprisonment authorities of 18 U.S.C. § 3621(a) and (b) do not supplement the CARES Act authority to authorize home confinement under the Act beyond the limits of section 3624(c)(2).

I had assumed that BOP might have some discretion to keep persons on home confinement whenever we emerged from the pandemic; but this OLC opinion asserts that BOP has no discretion in this matter and thus "would be required to recall the prisoners to correctional facilities unless they are otherwise eligible for home confinement."  This opinion is certain contestable, the new Biden Justice Department could reconsider it and a court might reject it, and we are surely a long ways from reaching a post-pandemic world.  Nevertheless, as FAMM's Kevin Ring explains in this Twitter thread, this OLC opinion could cause lots of heartache and worry for lots of persons on home confinement and their families.

Persons on home confinement are those that BOP generally determined posed little risk to public safety and that were at high risk of COVID and so likely older and less healthy relative to most other prisoners.  And, since the BOP has had discretion to return these persons to prison for misbehavior while in home confinement, it is hard to see a compelling public safety justification for sending all these individuals back to prison post-pandemic.  But if extant law is interpreted to require BOP to recall all these folks, policy arguments alone cannot fix this legal reality.

But even if this particular interpretation of BOP authority under the CARES Act were to persist, there are multiple means to address these matters.  Most obviously, Congress could modify the applicable statutes to clearly give BOP discretion to keep persons on home confinement.  And even without congressional action to address this problem, the other two branches could step in: Prez Biden could grant a kind of conditional clemency and/or district courts could grant compassionate release to keep these folks on home confinement.  Walto Palvo discusses these matters further in this new Forbes piece, which concludes with this fitting sentence: "One thing is for sure, the pandemic is not over but discussions on how to handle inmates currently on home confinement is something that should begin now."

Timely reminder that Congress has a critical role to play in reforming clemency conditions

Former US pardon attorney Margaret Colgate Love has this great new Washington Post piece highlighting that Congress can and should create statutory record relief mechanisms (as nearly all states have) in order to prevent clemency from serving as the only means for persons with federal criminal records to find relief.  I recommend the piece in full, and here are excerpts:

The core problem that has led to pardon’s abuse is that the justice system has relied too heavily on an authority that is inherently arbitrary and unfair.

Thus, the law makes the president exclusively responsible — through his pardon power — for shortening most federal prison sentences and relieving the collateral consequences of conviction — functions that in most states are now routinely performed by judges and agencies under statutory schemes.  For example, a presidential pardon is the only way a person convicted of a federal felony can qualify for many business and professional licenses, or regain the right to possess firearms.  Indeed, I have been told — and my own practice would confirm — that a desire to regain firearms rights accounts for nearly half of the pardon applications filed.  It is beyond absurd to make the president a one-person gun-licensing bureau for people convicted of nonviolent federal crimes who want to go hunting again....

I do not advocate curtailing the president’s pardon power, and the Biden administration can decide how it wishes to administer that power.  I hope it will restore at least the appearance of fairness and regularity to the way applications from ordinary people are considered (even if the process will continue to function, as it always has, more or less like a lottery)....

The alternative to systematic reliance on pardoning is what Daniel J. Freed described 20 years ago as “the more demanding road toward democratic reform.”  The incoming administration should urge Congress to offload many of pardon’s exclusive functions onto the legal system by enacting robust statutory relief mechanisms, for those in prison and for those who have fully served their sentences, as a majority of states have done in recent years....

In other words, Congress should enact laws to provide alternative ways of handling much of the routine business that is currently overwhelming the pardon process, ideally using the federal courts. It has already begun this work in the 2018 First Step Act, which gives federal prisoners the ability to go back to court to seek reduction of their sentences.

If the pardon process were not bogged down by thousands of petitions from people who simply want to restore lost rights or improve their employment prospects, the president would be free to use the constitutional power in a far more expansive and policy-oriented manner to encourage reform of the justice system, to counter its overreaches and to tell good news about its operation through stories of successful rehabilitation.

In the end, Trump’s abuse of his pardon power could be seen as a blessing in disguise if it provides the opportunity to wean the federal criminal justice system from its dependence upon presidential action for routine relief. Only if freed from its more workaday responsibilities can pardon play the constructive role the Framers intended.

I sense that record relief reform has been a truly bipartisan endeavor in states from coast to coast in reent years. The Biden Administration and members of Congress on both sides of the aisle might be wise to start its criminal justice reform efforts here.

Reviewing some notable data after a notably final clemency flourish by Prez Trump

A few months ago, I noted in this post a Pew Research Center piece, "So far, Trump has granted clemency less frequently than any president in modern history," which assailed then Prez Trump’s "sparse use" of his clemency powers as of Nov 2020.  At that time, I called the Pew piece a bit unfair because it compared Trump's record in his (then-not-complete) first term to mostly two-term Presidents.  I also noted that Prez Trump had already granted more clemencies in his first term than had Prez Obama or Prez George W. Bush at a comparable point in their first terms and that some more clemencies were surely to come.

Sure enough, after a bunch of pre-Christmas grants and a final big group of pardons and commutations, (former) President Trump's clemency record might now be reasonably described as fairly substantial.  Though I wish he had done a lot more, and while I still recall getting way too excited back in 2018 when Prez Trump said he was considering 3000 people for clemency, some basic data make the case for him being a significant user of his clemency powers.  Of course, there are ample grounds for criticizing the substantive decisions and the opaque process surrounding  Prez Trump's use of his historic clemency power.  But reviewing the raw numbers with an eye on the modern history of clemency highlights that it is no longer accurate to even suggest Trump's use of this power was sparse. 

Specifically, according to the data on this Justice Department "Clemency Statistics" page (which seems up-to-date but may be an undercount), Prez Trump is reported to have granted in his four years in the Oval Office a total of 206 clemencies in the form of 117 pardons and 89 commutations.  Even that number (which may be a bit low) amounts to nearly three times as many clemencies as our last one-term president: Prez George H.W. Bush granted only 77 total clemencies during his four years in office.  Indeed, in only one term, Prez Trump's used his clemency pen even more than Prez George W. Bush did over two full terms as he granted only 200 total clemencies during his entire eight years in office.

Given that Prez Trump was often eager to lay claim to a Reagan legacy, it is notable that Prez Trump can lay claim to using his clemency powers more in his first term in office than any president since Ronald Reagan.  As clemency fans may know, Prez Reagan was something of a marker of two different clemency eras: nearly every president before Reagan used his clemency powers more than nearly every president after Reagan (e.g., Prez Nixon alone used his clemency power more in roughly five years than both Prez Bushes and Prez Clinton combined over 20 years).  Prez Barack Obama is the one exception to the ugly modern story of relative clemency disuse because of his remarkable second-term commutation project, but that valuable program was still relatively modest if measured against the massive size of the modern federal prison population.

A focus on commutations makes the clemency record of Prez Trump perhaps especially notable.  Leaving Prez Obama out of the analysis, Prez Trump's 89 commutations amount to more federal prison commutations granted than any other president since Prez Lyndon Johnson and amount to more prison commutations granted than any Republican president since Herbert Hoover!  

Because so much of Prez Trump's early use of his clemency powers was overtly political and/or self-serving, I do not want to be misunderstood as unduly praising how Prez Trump used these critical powers of justice and mercy.  But I do want to strongly embrace the sentiments in this recent Slate commentary and headline: "The Presidential Pardon Power Is Good: Trump abused it, but clemency remains an indispensable tool that should be used more often, not less."  As Mark Joseph Stern put it even before the last round of grants: 

[A] jaundiced view of clemency is understandable.  It is also misguided.  The pardon power exists for a very good reason, and its exploitation at the hands of crooks and con men should not give cause for its eradication.  It is not some obsolete relic from a simpler era, but a vital safeguard against unjust convictions and disproportionate sentences.  The United States’ federal prisons are filled with good citizens who have no business being behind bars.  It is unfortunate that Trump has overlooked these individuals in favor of his vile cronies.  It would be catastrophic if Trump’s actions prevented future presidents from using the pardon power to free the people who actually deserve clemency.

Thankfully, in his final batch of 143 clemencies, the ratio of deserving individuals to cronies seemed a lot better than in early rounds.  Regular readers know I have been advocating for reform of the clemency process for more than a decade, and I hope that becomes the focal point for continued calls for reform.  But imperfect and even poor use of the clemency power still seems to me better than no use at all.  I still wish Prez Trump did a lot more and a lot better with his clemency power, but now it is time to focus on urging Prez Biden to do a lot more and a lot better with this power ASAP.

A few of many recent related posts:

• Two different takes on Prez Trump's clemency record as his term nears conclusion 
• Gearing up for Prez Trump's coming final round of clemency grants 
• Rounding up some notable recent criminal justice commentary
• Noticing the many regular forgotten folk so far left behind in Prez Trump's clemency capers 
• Lots of (surprising and unsurprising) clemency chatter ... and great advocacy for clemency change 
• A challenge for those troubled by Trump's final month clemencies: identify dozens, hundreds of comparable cases for Biden's first month
• Reviewing CJUTF Recommendations: when and how might Biden Administration create an independent clemency board? 

UPDATE:  There is now an updated version of the Pew Research Center piece available here under the headline "Trump used his clemency power sparingly despite a raft of late pardons and commutations."

Prez Trump grants 73 pardons and 70 commutations in final hours in office

As detailed in this official statement, Prez Trump has "granted pardons to 73 individuals and commuted the sentences of an additional 70 individuals."  The list of recipients strikes me as notably diverse, with some well-known names sure to cause controversy (e.g., Steve Bannon) as well as plenty of lesser-known individuals.  Here are just a few on the names on the list catching my eye upon first review: 

John Knock – President Trump commuted the sentence of John Knock.  This commutation is supported by his family.  Mr. Knock is a 73 year-old man, a first-time, non-violent marijuana only offender, who has served 24 years of a life sentence....

Michael Pelletier – President Trump commuted the sentence of Michael Pelletier.  Mr. Pelletier is a 64 year-old who has served 12 years of a 30 year sentence for conspiracy to distribute marijuana....

Craig Cesal – President Trump commuted the sentence of Craig Cesal.  Mr. Cesal is a father of two, one of whom unfortunately passed away while he was serving his life sentence for conspiracy to distribute marijuana....

Chalana McFarland – President Trump commuted the sentence of Chalana McFarland.  Ms. McFarland has served 15 years of a 30-year sentence....

Chris Young – President Trump commuted the remaining sentence of Chris Young.  This commutation is supported by the Honorable Kevin H. Sharp, Mr. Young’s sentencing judge, former law enforcement officials and Federal prosecutors, and multitudes of criminal justice reform advocates....

Amy Povah – President Trump granted a full pardon to Amy Povah, the founder of the CAN-DO (Clemency for All Non-violent Drug Offenders) Foundation.  In the 1990s, Ms. Povah served 9 years of a 24 year sentence for a drug offense before President Clinton commuted her remaining prison sentence in 2000.  Since her release, she has become a voice for the incarcerated, a champion for criminal justice reform, and was a strong advocate for the passage of the First Step Act....

Kwame Kilpatrick – President Trump commuted the sentence of the former Mayor of Detroit, Kwame Malik Kilpatrick. This commutation is strongly supported by prominent members of the Detroit community, Alveda King, Alice Johnson, Diamond and Silk, Pastor Paula White, Peter Karmanos, Representative Sherry Gay-Dagnogo of the Michigan House of Representatives, Representative Karen Whitsett of the Michigan House of Representatives, and more than 30 faith leaders....

Dwayne Michael Carter Jr. – President Trump granted a full pardon to Dwayne Michael Carter Jr., also known as “Lil Wayne.”  Mr. Carter pled guilty to possession of a firearm and ammunition by a convicted felon, owing to a conviction over 10 years ago....

Shalom Weiss – President Trump commuted the sentence of Shalom Weiss.  This commutation is supported by former U.S. Attorney General Edwin Meese, former Solicitors General Ken Starr and Seth Waxman, former United States Representative Bob Barr, numerous members of the New York legislature, notable legal figures such as Professor Alan Dershowitz and Jay Sekulow, former U.S. Attorney Brett Tolman, and various other former elected officials. 

There are many more notable names on this last big clemency list, and it certainly seems like there are many more deserving cases than undeserving ones this time around.  I expect we will be hearing a lot more about some of these recipients, both good and bad, in the days ahead.  But because thislist maeks the end of the Trump term, it is now time to turn to urging the Biden Administration to do more and more grants and to adopt a new and improved clemency process.

Some news and notes and rulings on federal compassionate release

I know that lots of people are eagerly awaiting the reported forthcoming list of clemency grants from Prez Trump on his last full day in office (including, it seems, Joe Exotic).  As we wait, I have noticed a number of recent pieces about so-called compassionate relief motions in the federal system, a mechanism which serves as a means now for federal judges to modify the prison sentences of some federal prisoners.  Here is a round up of some of these new pieces, included a few discussing grants and denials of compassionate release to notable individuals:

From Law360, "Pandemic Is Changing Compassionate Release Calculus"

From Colorado Politics, "Federal judges in Colorado denied overwhelming majority of requests to release inmates for COVID-19"

From Uerweb, "Bill Underwood is FREE! Former Music Exec Granted Compassionate Release from Prison After 33 Years"

From the AP, "Jailed kids-for-cash judge loses bid for pandemic release"

From Reuters, "U.S. judge rejects 'Pharma Bro' Shkreli's bid for compassionate release from prison"

Hoping for a lot more "regular" folks on Prez Trump's coming final clemency list

CNN has this big new piece about Prez Trump's clemency plans under the headline "Trump to issue around 100 pardons and commutations Tuesday, sources say."  There is a lot of interesting reporting in this piece, and here are excerpts:

President Donald Trump is preparing to issue around 100 pardons and commutations on his final full day in office Tuesday, according to three people familiar with the matter, a major batch of clemency actions that includes white collar criminals, high-profile rappers and others but -- as of now -- is not expected to include Trump himself.

The White House held a meeting on Sunday to finalize the list of pardons, two sources said.

Trump, who had been rolling out pardons and commutations at a steady clip ahead of Christmas, had put a pause on them in the days leading up to and directly after the January 6 riots at the US Capitol, according to officials. Aides said Trump was singularly focused on the Electoral College count in the days ahead of time, precluding him for making final decisions on pardons. White House officials had expected them to resume after January 6, but Trump retreated after he was blamed for inciting the riots.

Initially, two major batches had been ready to roll out, one at the end of last week and one on Tuesday. Now, officials expect the last batch to be the only one -- unless Trump decides at the last minute to grant pardons to controversial allies, members of his family or himself.

The final batch of clemency actions is expected to include a mix of criminal justice reform-minded pardons and more controversial ones secured or doled out to political allies....

The January 6 riots that led to Trump's second impeachment have complicated his desire to pardon himself, his kids and personal lawyer Rudy Giuliani. At this point, aides do not think he will do so, but caution only Trump knows what he will do with his last bit of presidential power before he is officially out of office at noon on January 20....

Other attention-grabbing names, like Julian Assange, are also not currently believed to among the people receiving pardons, but the list is still fluid and that could change, too. It's also not certain whether Trump's former adviser Steve Bannon will receive a pardon....

The expectation among allies is that Trump will issue pardons that he could benefit from post presidency. "Everything is a transaction. He likes pardons because it is unilateral. And he likes doing favors for people he thinks will owe him," one source familiar with the matter said....

Inside the White House, there has been a scramble to petition for pardons on behalf of allies and advocacy groups and names could be added and taken off up until the last minute, sources say.  CNN previously reported there has been a crush of pardon requests during Trump's final days in office from allies, lobbyists and others hoping to cash in on their loyalty to Trump.  The New York Times reported Sunday some of those people were getting paid tens of thousands of dollars to lobby on behalf of felons hoping for pardons.

Regular readers know I have been hoping Prez Trump in his final days in office might make regular use of his clemency power to give relief to the many regular people who ought to benefit from executive relief in the form of a commutation and/or pardon.  But, perhaps unsurprisingly, it seems his ugly efforts to contest the election results and the additional ugliness he inspired on January 6 kept him from giving sustained attention to his last meaningful opportunity to use his presidential powers in a potent way.  Prez Trump often claimed to be concerned with "forgotten" Americans.  Federal prisoners without celebrity status or famous advocates are surely among those forgotten, and they are now enduring an extended lock-down thanks to Prez Trump's "stop the steal" shenanigans.  I sure hope more than a few of these forgotten folks make the final clemency cut.

Barring a pleasant surprise from the final round of grants, it seems likely that Prez Trump's clemency legacy will have been to demonstrate how this historic constitutional power can be used primarily to garner attention and score political points rather than to actually do justice or show mercy.  That said, despite some crass cases, Prez Trump has already issued at least a few grants that, as I see it, did effectively advance justice and/or show mercy.  (The Alice Marie Johnson case is most obvious, but I count a few dozen others.)  I hope we see a final Trumpian flourish in the spirit of justice and mercy, and I hope the momentum for clemency reform continues to advance some structural reforms in the next administration that could improve clemency decision-making and the advancement of justice and mercy for many years to come.

A few recent related posts:

• Gearing up for Prez Trump's coming final round of clemency grants 
• Rounding up some notable recent criminal justice commentary
• Noticing the many regular forgotten folk so far left behind in Prez Trump's clemency capers 
• Lots of (surprising and unsurprising) clemency chatter ... and great advocacy for clemency change 
• Might Prez Trump announce his next round of clemency grants this weekend? |
• A challenge for those troubled by Trump's final month clemencies: identify dozens, hundreds of comparable cases for Biden's first month
• Reviewing CJUTF Recommendations: when and how might Biden Administration create an independent clemency board? 

Might Prez Trump announce his next round of clemency grants this weekend?

The question in this post is prompted by this Politico article headlined "Trump weighing a pardon for Steve Bannon." The start of the article suggests that some actually were expected some action on the clemency front last night:

President Donald Trump is considering granting a pardon to Steve Bannon, his former White House chief strategist and top campaign aide, who was charged with swindling donors to a private crowdsourcing effort to build a wall along the U.S.-Mexico border, according to two sources familiar with the matter.

The potential pardon would follow a wave of reprieves the president has recently granted to political allies who have been convicted, charged or reportedly under federal investigation. Two additional batches of pardons are expected — one on Friday night and one Wednesday morning before President-elect Joe Biden is sworn into office, according to one of the people.

I have been wondering in recent days about how the Capitol riot and Prez Trump's second impeachment might be impacting his clemency plans (and they advice he may be getting from his remaining advisors). Ultimately, I have given up making Trumpian predictions, but these recent articles reveal we can readily predict that Prez Trump will keep recieving clemency requests:

From The Daily Beast, "‘QAnon Shaman’ Seeks Trump Pardon for Riot, Says President Invited Him"

From Newsweek, "Jenna Ryan, Who Took Jet to Capitol Riot, Asks Donald Trump for a Pardon"

A few recent related posts:

• Gearing up for Prez Trump's coming final round of clemency grants 
• Rounding up some notable recent criminal justice commentary
• Noticing the many regular forgotten folk so far left behind in Prez Trump's clemency capers 
• Lots of (surprising and unsurprising) clemency chatter ... and great advocacy for clemency change 
• A challenge for those troubled by Trump's final month clemencies: identify dozens, hundreds of comparable cases for Biden's first month

UPDATE: These new stories highlight the Trumpian realities already shaping the clemency:

From The Guardian, "Giuliani associate told ex-CIA officer a Trump pardon would 'cost $2m’ – report"

From the New York Times, "Prospect of Pardons in Final Days Fuels Market to Buy Access to Trump"

Here are portions of the NYTimes piece:

As President Trump prepares to leave office in days, a lucrative market for pardons is coming to a head, with some of his allies collecting fees from wealthy felons or their associates to push the White House for clemency, according to documents and interviews with more than three dozen lobbyists and lawyers....

Legal scholars and some pardon lawyers shudder at the prospect of such moves, as well as the specter of Mr. Trump’s friends and allies offering to pursue pardons for others in exchange for cash.

“This kind of off-books influence peddling, special-privilege system denies consideration to the hundreds of ordinary people who have obediently lined up as required by Justice Department rules, and is a basic violation of the longstanding effort to make this process at least look fair,” said Margaret Love, who ran the Justice Department’s clemency process from 1990 until 1997 as the United States pardon attorney....

Few regulations or disclosure requirements govern presidential clemency grants or lobbying for them, particularly by lawyers, and there is nothing illegal about Trump associates being paid to lobby for clemency.  Any explicit offers of payment to the president in return could be investigated as possible violations of bribery laws; no evidence has emerged that Mr. Trump was offered money in exchange for a pardon.

Some who used resources or connections to try to get to Mr. Trump say clemency should be granted to more people, independent of their clout.

Montana Supreme Court talks through juve LWOP resentencing after Miller

This past Friday, the Montana Supreme Court handed down a notable ruling (with lots of opinions) on the application of the US Supreme Court's juvenile LWOP sentencing jurisprudence and related issues.  The main opinion and various concurring and dissenting opinions in Montana v. Keefe, No. 2021 MT 8 (Mont. Jan. 8, 2021) (available here), all make for interesting reads.  Here are some of the essentials from the majority opinion: 

We agree with the Briones court that post-offense evidence of rehabilitation is clearly required to be considered by a court resentencing a juvenile who is serving a sentence of life without parole.  Because Miller commands a resentencing court to consider “the possibility of rehabilitation” before a juvenile can lawfully be sentenced to life without parole, evidence of rehabilitation in the years since the original crime must be considered by the resentencing court.  This is consistent with the sentencing policy of Montana which does not merely provide for punishment, protection of the public, and restitution, but also for rehabilitation and reintegration of offenders back into the community....

Although we have determined the District Court erred in determining Keefe was “irreparably corrupt” and “permanently incorrigible” and are reversing his sentence on that basis, we must address whether the issue of the irreparable corruption of a minor is a fact which must be found by a jury.  Keefe has argued, pursuant to Apprendi, that he is constitutionally entitled to have a jury determine whether he is, in fact, “irreparably corrupt” before a possible life without parole sentence.  We disagree....

Here, neither “irreparable corruption” nor “permanent incorrigibility” are facts which could increase a possible sentence.  Rather, youth is a mitigating factor which can reduce the possible sentence for deliberate homicide in Montana.  In accordance with Miller and Steilman, a jury is not required to determine irreparable corruption and permanent incorrigibility — that determination is properly left to the resentencing judge.

SCOTUS grants cert on four new criminal cases, including one on FIRST STEP Act retroactivity of reduced crack sentences

The Supreme Court last night issued this order list which grants review in 14 new cases that will be heard later this SCOTUS Term.  Four of the cases involve criminal issues, and one is a sentencing case concerning the reach and application of the FIRST STEP Act's provisions making the reduced crack sentences of the Fair Sentencing Act retroactive.  This SCOTUSblog post has a lot more about the sentencing case and a brief review of the others:

In Terry v. United States, the justices agreed to weigh in on a technical sentencing issue that has significant implications for thousands of inmates: whether a group of defendants who were sentenced for low-level crack-cocaine offenses before Congress enacted the Fair Sentencing Act of 2010 are eligible for resentencing under the First Step Act of 2018. The Fair Sentencing Act reduced (but did not eliminate) the disparity in sentences for convictions involving crack and powder cocaine, and the First Step Act made the Fair Sentencing Act retroactive.  The specific question that the court agreed to decide is whether the changes made by the First Step Act extend to inmates convicted of the most minor crack-cocaine offenses.

In a “friend of the court” brief urging the justices to grant review in another case presenting the same question, the National Association of Criminal Defense Lawyers explained that the lower courts are divided on this question; as a result, NACDL wrote, Supreme Court review is necessary “to prevent thousands of predominately Black defendants from being forced to spend years longer in prison than identically situated defendants” elsewhere in the country “and to ensure that Congress’s goal of alleviating the racial disparities in sentencing caused by the 1986 law’s harsh sentencing regime is realized.”

Other grants on Friday are:

• Greer v. United States: Whether, when applying plain-error review based on an intervening decision of the Supreme Court, a court of appeals can look at matters outside the trial record to determine whether the error affected a defendant’s substantial rights or affected the trial’s fairness, integrity or public reputation....
• United States v. Palomar-Santiago: Whether charges that a non-citizen illegally reentered the United States should be dismissed when the non-citizen’s removal was based on the misclassification of a prior conviction....
• United States v. Gary: Whether a defendant who pleaded guilty to being a felon in possession of a firearm is automatically entitled to plain-error relief if the district court did not advise him that one element of that offense is knowing that he is a felon.

Gearing up for Prez Trump's coming final round of clemency grants

Prez Trump's ignominious behavior raises uncertainty as to whether he will serve out the last two weeks of his term.  But we can all be certain that Prez Trump is planning to issue more clemency grants before he loses the power to do so.  As everyone surely recalls, just before Christmas, Prez Trump granted clemency to all sorts of friends and family and politically-charged defendants (basics here and here).  And recent press reports detail other grants that could be forthcoming. 

First, this new New York Times piece, headlined "Trump Is Said to Have Discussed Pardoning Himself," cover the one particular possible pardon sure to generate the most buzz and controversy.  But I am even more intrigued by this new Bloomberg piece, headlined "Trump Prepares Pardon List for Aides and Family, and Maybe Himself," which discusses more fully other grants that may be in the works.  Here are excerpts:

President Donald Trump has prepared a sweeping list of individuals he’s hoping to pardon in the final days of his administration that includes senior White House officials, family members, prominent rappers -- and possibly himself, according to people familiar with the matter.

Trump is hoping to announce the pardons on Jan. 19 -- his final full day in office -- and his ideas are currently being vetted by senior advisers and the White House counsel’s office, the people said....

He’s also considering a traditional pardon for Albert Pirro, who previously worked with the president on real estate deals and was convicted of tax fraud. Pirro is the ex-husband of Fox News host Jeanine Pirro, a former district attorney of Westchester County in New York.

Trump is similarly considering pardoning celebrities including rapper Lil Wayne -- with whom he posed for a photo during the presidential campaign --as well as rapper Kodak Black, who is serving time for falsifying paperwork to obtain a firearm.

Other prominent celebrities including rapper Lil Yachty and Baltimore Ravens quarterback Lamar Jackson have publicly lobbied Trump to pardon Kodak Black, who said in a now-deleted tweet that he would donate $1 million to charity if the president freed him.

Trump’s list is currently being vetted by lawyers who are concerned that pardons could create new allegations of obstruction of justice for members of the administration. The process is being managed in part by White House Counsel Pat Cipollone. A White House spokesman did not immediately respond to a request for comment.

While some of the proposed pardons have moved through the legal steps needed inside the White House, the idea of a self-pardon is far less developed, the people say, and so far only at the discussion stage.

I am hopeful, but not really optimistic, that there will be some good number of final Trumpian clemency grants for persons who are not well-connected or famous.  Whether there are or not, I hope Prez-elect Biden comes into office understanding that the best way to restore faith in the pardon power could be by using it right away to advance justice and mercy rather than parochial personal privilege.

A few recent related posts:

• A challenge for those troubled by Trump's final month clemencies: identify dozens, hundreds of comparable cases for Biden's first month
• Rounding up some notable recent criminal justice commentary
• Noticing the many regular forgotten folk so far left behind in Prez Trump's clemency capers 
• Lots of (surprising and unsurprising) clemency chatter ... and great advocacy for clemency change 
• "Presidential Pardons and the Problem of Impunity" 
• "The Legality of Presidential Self-Pardons" 
• Discussing clemency activity by Prez Trump for six more weeks seems unavoidable, doesn't it?

Sixth Circuit panel reiterates "district courts have discretion to define 'extraordinary and compelling' on their own initiative" for 3582(c)(1)(A) motions

A helpful reader made sure I did not miss another recent notable Sixth Circuit ruling discussing the reach and application of the compassionate release provisions amended by the federal FIRST STEP Act.  A couple of months ago, as noted in this post, a Sixth Circuit's panel handed down US v. Jones, No. 20-3701 (6th Cir. Nov. 20, 2020) (available here), to become then only the second circuit to rule expressly that district courts now have broad discretion to determine what now qualifies as "extraordinary and compelling reasons" for a sentence reduction now that federal courts can directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  Yesterday, a distinct Sixth Circuit panel reiterated this important doctrinal reality in  US v. Elias, No. 20-3654 (6th Cir. Jan. 6, 2021) (available here).

Notably, the Elias decision ultimately affirmed a district court's decision not to grant a defendant any reduction in sentence.  But the ruling usefully restated the broad authority of district courts in this arena.  Here is some of that discussion:

This Court recently spoke on that question [of whether the existing sentencing guideline confines district court authority], stating that § 1B1.13 is not an applicable policy statement for compassionate-release motions brought directly by inmates.  Jones, 980 F.3d at 1108–11.  The text of the guideline, along with the clear congressional purpose in the First Step Act of removing the BOP from its gatekeeping role, led this Court to its conclusion.  See id. (discussing the purpose of the First Step Act and noting that “[t]he first sentence of § 1B1.13 predicates the entire policy statement on the Director of the BOP’s filing a motion for compassionate release”).  The statement in Jones that § 1B1.13 was inapplicable to inmate-filed compassionate-release motions aligned with the Second Circuit, the first Circuit to rule on the matter, as well as the majority of district courts.  See Brooker, 976 F.3d at 234.  Since Jones, the Seventh Circuit and Fourth Circuit have reached the same conclusion.  See United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020); McCoy, 981 F.3d at 281–82.

Thus, there has emerged a newfound consensus among the courts, and the government provides no compelling reason for us to disturb the consensus of our sister Circuits. Therefore, we hold that § 1B1.13 is not an applicable policy statement for compassionate-release motions brought directly by inmates, and so district courts need not consider it when ruling on those motions.  Further, we clarify that, as in Jones and Ruffin, district courts may deny compassionate-release motions when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking and do not need to address the others....  And, in the absence of an applicable policy statement for inmate-filed compassionate-release motions, district courts have discretion to define “extraordinary and compelling” on their own initiative.  See Jones, 980 F.3d at 1111; Ruffin, 978 F.3d at 1007 (suggesting that without an “‘applicable’ policy statement for motions by defendants . . . district court[s] may freely identify extraordinary and compelling reasons”).

A few of many, many prior related posts:

• Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court?
• New District Court ruling confirms that "any extraordinary and compelling reasons" can now provide basis for reducing imprisonment under 3582(c)(1)(A)
• Another thoughtful and thorough opinion finds statutory reform among "extraordinary and compelling reasons" for reducing sentence under 3582(c)(1)(A) 
• A dozen new grants of federal sentence reductions using § 3582(c)(1)(A), including another based on stacking/disparity/trial penalty concerns 
• Second Circuit panel rules unanimously that district courts have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" 
• Sixth Circuit panel rules "courts have full discretion" to determine extraordinary and compelling reasons for 3582(c)(1)(A) motions
• Seventh Circuit panel says old guideline does not limit potential "extraordinary and compelling reasons" for 3582(c)(1)(A) motions after FIRST STEP Act 
• Fourth Circuit becomes the fourth circuit to embrace a robust view of sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act 

DC Circuit panel upholds January 12 execution date for only woman on federal death row

Just before Christmas, as noted in this post, a federal district judge vacated an order from the director of the Bureau of Prisons that had set Lisa Montgomery’s execution date for January 12.  But, on New Year's Day, a DC Circuit panel issued this order putting the execution back on track.  This CNN article about the ruling provides some context:

Montgomery's execution had been scheduled for December 8, but a judge postponed it after her attorneys said they were diagnosed with Covid-19 after flying from Texas to visit with Montgomery at the Federal Correctional Complex in Terre Haute, Indiana.

On November 23, the director of the Federal Bureau of Prisons, Michael Carvajal, rescheduled Montgomery's execution for January 12.  Friday's order said he was acting under the "governing regulation," which allowed him to reschedule the execution because the original execution date had not passed.  The order said he was acting under the law, clearing the way for Montgomery's execution later this month.

Montgomery's attorney, Meaghan VerGow, said in a statement that she disagrees with the judges and is going to file a petition for them to reconsider their decision.  The judges gave VerGow until Saturday to file. "The federal government must be required to follow the law in setting any execution date, as the district court correctly held ... Given everything we know about Lisa Montgomery's mental illness, her lifetime of horrific torture and trauma, and the many people in positions of authority who could have intervened to save her but never did, there can be no principled reason to carry out her execution," VerGow said.  "The government should stop its relentless efforts to end her life."...

The Trump administration has overseen 10 federal executions in the final months of his presidency, the most in a single year in the United States in decades, and a revival after years of having none.  Montgomery would be the first woman executed by the US government since 1953.

In 2004, Montgomery was convicted of strangling a Missouri woman who was eight months pregnant, then cutting out and kidnapping the baby.  The baby survived.

The last woman executed by the US government was Bonnie Brown Heady in 1953, according to US Bureau of Prisons records, for kidnapping and murder.  The US also famously executed Ethel Rosenberg that same year for espionage.

I suspect Montgomery's lawyers will pursue further appeals. But, in lots of prior federal capital cases in recent months, appeals courts (including the Supreme COurt) have consistently refected efforts to slow down the federal machinery of death.

Reviewing CJUTF Recommendations: when and how might Biden Administration create an independent clemency board?

Right after the election, I blogged a bit (here and here) about some criminal justice reform recommendations from the Biden-Sanders Unity Task Force (available here pp. 56-62); I stressed in one of those posts that Prez-elect Biden could get started right away in implementing recommendations calling for creating a new "Task Force on Prosecutorial Discretion" and a "Clemency Board."  Especially with so much clemency chatter as Prez Trump's term comes to a close, I am eager to again amplify attention on the clemency recommendation.  Helpfully, this lengthy new Bloomberg piece, headlined "Biden Gets Unlikely Advice on Pardons: Copy Trump, Sideline DOJ," provides some useful background and context.  Here are excerpts:

President Donald Trump’s pardons of some of his closest allies have sparked a political firestorm, but criminal justice reform advocates believe he has done one thing right: sideline the Department of Justice from clemency decisions.  But rather than use that control the way Trump has, those advocates want to see President-elect Joe Biden use it to help non-violent drug offenders with questionable convictions or harsh sentences.  Relying on the DOJ’s Office of the Pardon Attorney to review and make recommendations on clemency requests, they say, is bureaucratic and puts those decisions in the hands of the department that put the offenders behind bars....

Biden’s criminal justice plan proposes a number of reforms and says he will “broadly use his clemency power for certain non-violent and drug crimes.” The campaign would not comment past the plan’s language.  In addition to removing the sole oversight of the Office of the Pardon Attorney, Biden could improve the process by creating a permanent independent advisory panel that includes criminal justice reform activists, defense attorneys and pardoned convicted offenders, alongside federal prosecutors, supporters say.

“It should certainly include people who are formerly incarcerated because they know that walk better than anybody,” said Cynthia W. Roseberry, deputy director of policy in the Justice Division of the American Civil Liberties Union.  “Also include criminal justice reform experts and members of the community who can opine about the fact that we want people to come home.  I’m not suggesting leaving DOJ out,” Roseberry added.  “They can definitely have a prosecutor at the table.  But it should look like the community.”

Though the Biden campaign language does not commit to creating a new clemency infrastructure, the criminal justice reform recommendations from the Biden-Sanders Unity Task Force expressly proposes doing so:

Clemency Board: To avoid possible institutional bias and ensure people have a fair and independent evaluation, establish an independent clemency board, composed and staffed by people with diverse backgrounds.  Expand Obama-era criteria for proactive clemency initiative to address individuals serving excess sentences.

Long-time readers should not be surprised to hear me vocally advocate for a clemency board given that way back in 2010, I urged then-Prez Obama to structurally change the federal clemency system in this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders."  Here is a snippet from that piece:

President Obama ought to seriously consider creating some form of a "Clemency Commission" headed by a "clemency czar."...  Though a "Clemency Commission" headed by a "clemency czar" could be created and developed in any number of ways, ... [the] basic idea is ... to create a special expert body, headed by a special designated official, who is primarily tasked with helping federal officials (and perhaps also state officials) improve the functioning, transparency, and public respect for executive clemency.  Though the structure, staffing, and mandates of a Clemency Commission could take many forms, ideally it would include personnel with expertise about the nature of and reasons for occasional miscarriages of justice in the operation of modem criminal justice systems — persons who possess a deep understanding that, in the words of James Iredell, "an inflexible adherence to [severe criminal laws], in every instance, might frequently be the cause of very great injustice."

Many others have been talking for many years in many better ways about the idea of an DOJ-independent clemency board or commission, and I especially think of the tireless work of Rachel Barkow and Mark Osler in promoting an improved clemency infrastructure (see, e.g., here and here and here and here).  And I want to here promote all ideas about clemency reform because I now believe when the Biden Administration gives attention to this matter is much more important than exactly how. 

As I noted in this recent post, among the many problems with the modern exercise of the federal clemency power is the modern tendency for Presidents to entirely ignore this power until late in their terms.  As detailed in this DOJ data, Prez Trump at least thought to use his clemency power, and did so nearly a dozen times, during his first couple years in office; Barack Obama and George W. Bush and Bill Clinton could not be bothered to pick up the clemency pen for a single individual during their first two calendar years in office.  If clemency work and reform is not made a priority in the weeks and months ahead, I fear that real reforms are unlikely to get done at all. 

At this moment, I am drawn to the notion of starting with a "clemency czar," particularly because appointing one initial advisor should be easier and quicker than creating a full clemency board.  And the aforementioned Rachel Barkow and Mark Osler and Cynthia Roseberry are all great names surely ready to serve in this role on day one.  And while ruminating on this topic, other great names of great people long doing great work in the criminal justice space come to mind, like Michelle Alexander and David Singleton and Bryan Stevenson.  (Heck, add in folks like Weldon Angelos, Brittany Barnett, Beth Curtis, Mark Holden, Shon Hopwood, Jessica Jackson and Amy Povah, and I guess it is not too hard to quickly envision a "Dream Team" for a badly-needed clemency board.) 

Some (of many) prior recent related posts on clemency reform:

• Making the case for an improved and independent federal clemency process
• "The Clemency Process Is Broken. Trump Can Fix It."
• New letter urges Prez Trump "to make lasting reforms to the clemency process by removing its administration from the Department of Justice" 
• Noticing the many regular forgotten folk so far left behind in Prez Trump's clemency capers 
• A challenge for those troubled by Trump's final month clemencies: identify dozens, hundreds of comparable cases for Biden's first month

Some prior related posts on CJUTF recommendations:

• Notable criminal justice reform recommendations from Biden-Sanders Unity Task Force 
• Can we be hopeful federal leaders will make deals to advance federal criminal justice reforms in the next Congress?
• Tomorrow can be today for some Biden-Sanders Unity Task Force criminal justice recommendations 
• Reviewing Criminal Justice Unity Task Force Recommendations: a new series to welcome a new President 
• Reviewing CJUTF Recommendations: will the Biden Administration go all in with progressive prosecutors?
• Reviewing CJUTF Recommendations: how might the Biden Administration seek to abolish the death penalty?

Two notable end-of-year state supreme court rulings for criminal defendants on sentencing matters

This week has brought two notable new state Supreme Court rulings from the coasts on sentencing issues.  Here are press reports and parts of the starts of the opinions:

From the Boston Globe, "SJC: Judges can grant probation in some 'three strikes' cases"

From the start of the ruling in Massachusetts v. Montarvo, No. SJC-12905 (Mass. Dec 29, 2020):

Colloquially referred to as the "three strikes" law, the habitual offender statute, G. L. c. 279, § 25, enhances the penalty for a defendant who, after two prior convictions resulting in State or Federal prison sentences of three or more years, receives a third felony conviction.  This case requires us to determine whether § 25 (a) of the law allows sentencing judges to impose probation on defendants who fall within its ambit.  We conclude that it does.

From the Los Angeles Times, "Sex offenders can qualify for early parole, California Supreme Court rules"

From the start of the ruling in In re Gadlin, No. S254599 (Cal. Dec. 28, 2020):

In November 2016, the California electorate approved Proposition 57, the Public Safety and Rehabilitation Act of 2016.  The initiative amended the California Constitution to provide, in relevant part, that “[a]ny person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.” (Cal. Const., art. I, § 32, subd. (a)(1) (article I, section 32(a)(1)).)  The initiative also directed the Department of Corrections and Rehabilitation (the Department) to “adopt regulations in furtherance of these provisions” and instructed the Secretary of the Department to “certify that these regulations protect and enhance public safety.” (Art. I, § 32, subd. (b) (article I, section 32(b)).)

The Department adopted regulations implementing a nonviolent offender parole consideration process.  Those regulations exclude from nonviolent offender parole consideration any inmate who “is convicted of a sexual offense that currently requires or will require registration as a sex offender under the Sex Offender Registration Act, codified in Sections 290 through 290.024 of the Penal Code.” (Cal. Code Regs., tit. 15, § 3491, subd. (b)(3) [governing determinately sentenced offenders]; see also id., § 3496, subd. (b) [governing indeterminately sentenced offenders].)

We granted review to address the validity of these provisions.  The Department asserts it is authorized by article I, section 32(b) to exclude from nonviolent offender parole consideration all inmates convicted of a registerable sex offense, regardless of whether that offense is defined by the regulations as a nonviolent felony and regardless of whether the inmate is currently incarcerated for that conviction.  Indeed, the Department’s regulations categorize inmates convicted of a registerable sex offense as “nonviolent offenders” unless, among other criteria, they are currently incarcerated for a violent felony listed in Penal Code section 667.5, subdivision (c). (Cal. Code Regs., §§ 3490, subd. (a), 3491, subds. (a), (b), 3495, subd. (a), 3496, subds. (a), (b).)  Nonetheless, the regulations entirely exclude from nonviolent offender parole consideration inmates previously convicted or currently convicted of any registerable sex offense.  We conclude that this categorical exclusion conflicts with the constitutional directive that inmates “convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration.” (Art. I, § 32(a)(1).)

Noticing the many regular forgotten folk so far left behind in Prez Trump's clemency capers

This new New York Times piece, headlined "Outside Trump’s Inner Circle, Odds Are Long for Getting Clemency," provides a useful reminder of who is largely being forgotten amidst Prez Trump's clemency largesse.  Here are excerpts:

A vast majority of the people to whom he granted pardons or commutations had either a personal or political connection to the White House, and it appears that only seven were recommended by the government’s pardon attorney, according to a Harvard University professor who is tracking the process....

Many who have applied have little chance of clemency under any circumstances.  But those with sentences they contend are excessive and people who have shown remorse and turned their lives around in prison are hoping for mercy.

“We just are hopeful that the president will extend the pardons to people who aren’t rich, wealthy and well-connected — and there’s certainly thousands of them,” said Holly Harris, a Republican who has worked with Mr. Trump on reforms as head of Justice Action Network, a bipartisan criminal justice reform organization.  “There’s certainly still time for the president to use this extraordinary power to help people who are really struggling.”...

Ferrell D. Scott, 57, hopes the president reviews his petition, which shows he is serving life for marijuana trafficking, a sentence that even the federal prosecutor who tried his case said he did not deserve.

John R. Knock, 73, also serving life on a nonviolent marijuana charge, was already rejected by President Barack Obama but tried again with Mr. Trump. He has been in prison since 1996.  “It’s kind of like a competition instead of a legal procedure,” said Mr. Knock’s sister, Beth Curtis, who has advocated on behalf of her brother and other people serving life sentences for marijuana charges.  “It’s a crony system.”

Rounding up some (but not enough) state clemency stories this holiday week

With Prez Trump setting quite the clemency pace (basics here and here), it would be nice if I could report here about similar holiday-week grants of pardons and commutations coming from Governors in every single state across the nation.  Sadly, my Google news searches have so far revealed reports of clemency grants from only a handful of states.  But I am still keen to highlight these stories, especially because grants from the Centennial State include a long-ago, high-profile "15 minutes of fame" case:

From Colorado, "Gov. Jared Polis pardons Balloon Boy’s parents, grants clemency to 20 others; Governor also commutes sentence of white collar criminal who received one of longest prison terms in state history."

From Michigan, "Whitmer grants clemency to 4, including state's 'longest serving non-violent offender'"

From Missouri, "Missouri governor pardons 24, commutes the sentences of four offenders"

From New York, "Governor Cuomo Grants Clemency to 21 Individuals"

From North Carolina, "NC governor pardons 5, including man wrongly imprisoned for 44 years"

From Texas, "Gov. Greg Abbott pardons seven Texans ahead of Christmas"

For those who do not remember the "Balloon Boy" case, here are prior posts about the case from way back in 2009:

• Balloon Boy parents cut plea deals providing for probation sentence
• "Do Defendants Get Enough Warning About a Guilty Plea's Consequences?"
• Sentencing chapter of balloon boy hoax

A challenge for those troubled by Trump's final month clemencies: identify dozens, hundreds of comparable cases for Biden's first month

It is hardly surprising that Prez Trump has kicked off his final weeks in office with sets of clemency grants that include all sorts of friends and family and politically-charged defendants (basics here and here).  It is perhaps even less surprising that Trump's latest flourish of clemency grants is garnering lots and lots of criticisms from lots and lots of quarters (just a few examples are here and here and here and here and here). 

But particularly notable in the first wave of reaction was US Senator Chris Murphy tweeting here that "It’s time to remove the pardon power from the Constitution."  Many tweeters have pushed back, and Rachel Barkow's tweet thread here is especially effective and I wanted to highlight some of what she says.  I recommend the whole thread, but these portions (with my bolding) partially motivated the title of this post:

[T]he Congress of which he is a part has established no functioning second-look mechanisms for shortening sentences or expunging convictions, commutations and pardons are the only mechanisms for correcting injustices in the federal system.  And it's not as if those injustices are rare.

Go to any federal correctional facility, and take time to learn who is there and about their cases, and you find literally thousands of people whose sentences were grossly excessive given their offenses.  Those people need commutations as a corrective because there is no parole or other second look in place to address that....

Pardons are essential as well because the collateral consequences of convictions can be devastating for people trying to get housing, employment, and education after being convicted. There is no other way to clear a federal conviction than a pardon....

The solution to what's happening now is to get a better leader, which we've done.  And my hope is that leader will see that the pardon power's utility is critical, and he'll show everyone what a real leader does when wielding it.

While I fully understand frustrations with how Prez Trump has been using his pardon power, I think much energy now should go to urging Prez-elect to do better and to do better right away! Among the many problems with the modern exercise of the federal clemency power is the modern tendency for Presidents to entirely ignore this power until late in their terms.  Notably, as detailed in this DOJ data, Prez Trump at least thought to use his clemency power, and did so nearly a dozen times, during his first couple years in office.  Neither Barack Obama nor George W. Bush nor Bill Clinton bothered to pick up their clemency pen for a single individual during their first two calendar years in office. 

As regular readers likely know, I think disuse of clemency powers is always a much bigger problem than the misuse of this power.  And disuse, not misuse, has defined the start of modern presidencies.  So this post presents my suggestion for what those troubled by Trump's final month clemencies ought to do — namely help identify for the incoming Biden Administration persons currently in federal prison and/or burdened by a federal conviction who should get a clemency grant during Biden's first month in office because they are at least as worthy as some of Trump's final-month clemency recipients.  Helpfully, Jack Goldsmith and Matthew Gluck have this current list of all Trump clemency recipients, and I would urge advocates to demand that Prez Biden grant many "good" clemencies as he gets situated in the Oval Office to balance Trump's "bad" use of this power on his way out the door.

I will start this process by flagging a group of federal prisoners that should be easy first cases for a Biden Administration, namely the "Life for Pot" crowd.  I do not think it is entirely misguided to describe persons still serving extreme federal terms for marijuana offenses as political prisoners, especially now that so many states have fully legalized marijuana and the US House has likewise voted to do so.  The Life for Pot website spotlights those Serving Sentences of Life without Parole in Federal Prison for Marijuana and those Serving De Facto Life.  I hope Senator Murphy will become an advocate for some of these kinds of prisoners and the thousands more who need the historic clemency power used more and better rather than needing it removed from the Constitution.

Prez Trump issues 29 more clemencies on Festivus that include full pardons to Paul Manafort, Roger Stone and Charles Kushner

As reported in this CNN piece, "President Donald Trump on Wednesday evening announced 26 new pardons, including ones for longtime ally Roger Stone, former campaign chairman Paul Manafort and White House senior adviser Jared Kushner's father, Charles." Here is a bit more:

Also included in Trump's pardon list Wednesday evening is former California GOP Rep. Duncan Hunter's wife, Margaret, just one day after Trump granted Duncan Hunter a full pardon. Margaret Hunter had pleaded guilty last year to conspiring "knowingly and willingly" to convert campaign funds for personal use.

Beyond the high-profile pardons, Trump also pardoned more than 20 other individuals, including those who had pleaded guilty to various cyber crimes, firearm possession and mail fraud. He also commuted the sentences of three others.

The full statement listing all the recipients of clemency today can be found at this link, and here are just a few (among many) names from the list that caught my eye:

Today, President Donald J. Trump granted Full Pardons to 26 individuals and commuted part or all of the sentences of an additional 3 individuals....

Rickey Kanter — President Trump granted a full pardon to Rickey Kanter. Mr. Kanter was the owner and CEO of Dr. Comfort, a company which manufactures special shoes and inserts for diabetics [who was the focal point of a notable Second Amendment case that then-Judge Amy Barrett dissented in]....

Topeka Sam — President Trump granted a full pardon to Topeka Sam....

Daniela Gozes-Wagner — President Trump commuted the sentence and restitution order imposed upon Ms. Gozes-Wagner [who raised strong claims that she was subject to a trial penalty at sentencing].

Prez Trump issues 15 full pardons and 5 commutations on Festivus eve

As detailed in this White House press release, titled "Statement from the Press Secretary Regarding Executive Grants of Clemency," Prez Trump issued a set of notable clemency grants this evening.  Here are the basics from the statement:

Today, President Donald J. Trump granted Full Pardons to 15 individuals and commuted part or all of the sentences of an additional 5 individuals.

Alfonso Costa — President Trump granted a full pardon to Alfonso Costa, a dentist from Pittsburgh...

Alfred Lee Crum — President Trump granted Alfred Lee Crum a full pardon....

Crystal Munoz — Today, President Trump commuted Crystal Munoz’s remaining term of supervised release, having previously commuted her sentence of incarceration after she had served 12 years in prison....

Tynice Nichole Hall — President Trump has commuted the remainder of Tynice Nichole Hall’s term of supervised release.... 

Judith Negron — President Trump has today commuted the remainder of Judith Negron’s term of supervised release....

Steve Stockman — Today, President Trump commuted the remaining prison sentence of Steve Stockman....

Duncan Hunter – At the request of many Members of Congress, President Trump granted a full pardon to Duncan Hunter....

Chris Collins – Today, President Trump granted a full pardon to Chris Collins, at the request of many Members of Congress....

Ignacio Ramos and Jose Compean – Today, President Trump granted full pardons to Ignacio Ramos and Jose Compean....

George Papadopoulos – Today, President Trump granted a full pardon to George Papadopoulos....

Alex van der Zwaan – Today, President Trump granted a full pardon to Alex van der Zwaan....

Nicholas Slatten, Paul Slough, Evan Liberty, and Dustin Heard – Today, President Trump granted full pardons to Nicholas Slatten, Paul Slough, Evan Liberty, and Dustin Heard....

Weldon Angelos – Today, President Trump granted a full pardon to Weldon Angelos.... 

Philip Lyman – Today, President Trump granted a full pardon to Philip Lyman....

Otis Gordon – Today, President Trump granted a full pardon to Otis Gordon.... 

Philip Esformes – Today, President Trump commuted the term of imprisonment of Philip Esformes, while leaving the remaining aspects of his sentence, including supervised release and restitution, intact. 

Many of these names are high-profile, and I suspect some of these grants will generate a bit of controversy.  I am particularly excited to see Weldon Angelos' name on this list. It was not that long ago that I was helping Weldon with his 2255 petition while he was incarcerated serving a ridiculous 55-year federal prison term for low-level marijuana dealing.  A few years ago, Weldon was able to secure release from prison, and he has been using his freedom to advocate on behalf of other persons subject to draconian sentences. I am so pleased now he gets to do so without any of the still-onerous collateral consequences that flow from even a low-level drug conviction.

Here are headlines from a few early press reports about these grants:

From The Hill, "Trump pardons individuals charged in Russia probe, ex-GOP lawmakers"

From the New York Times, "Trump Pardons Two Russia Inquiry Figures and Blackwater Guards"

From the Washington Post, "Trump grants clemency to 20 people, including three GOP former members of Congress and two men convicted in the Russia probe"

Split Michigan appeals court upholds sentencing of mass molester Larry Nassar over claims of misconduct by sentencing judge

As detailed in posts here and here from nearly three years ago, there was a lot of chatter and commentary about the high-profile conduct of the Michigan state sentencing judge during the high-profile state sentencing of Larry Nassar, the former USA Gymnastics team doctor who sexually abused many girls under his care.  Today, as reported in this local press piece, Michigan appeals court judges opined on the sentencing judge's conduct in a split ruling upholding Nassar's sentencing.  Here are the details from the press report:

The Michigan Court of Appeals on Tuesday denied an appeal from serial sex offender Larry Nassar but one judge chastised the conduct of Ingham County Circuit Judge Rosemarie Aquilina during his sentencing. In a 22-page opinion, a three-judge panel split 2-1 against Nassar's effort to be resentenced by a new judge.  The former Michigan State University doctor was accused of sexually assaulting hundreds of women under the guise of medical treatment over more than two decades.  He also collected 37,000 images and videos of child pornography on his computer.

Nassar was sentenced in three courts to what amounted to a life sentence but appealed a 2017 sentence of 40-175 years issued by by Aquilina.  Though Nassar admitted guilt, he argued that his Ingham County sentence was invalid due to Aquilina's bias based on comments she made during his sentencing.

"Although Nassar argues that the judge 'made numerous statements throughout the proceedings indicating that she had already decided to impose the maximum allowed by the sentence agreement even before the sentencing hearing began,' the fact of the matter remains that the judge imposed a minimum sentence that fell within the range of Nassar’s agreed-upon plea," wrote appeals court Judges Thomas C. Cameron and Michael F. Gadola, who ruled against Nassar's appeal.

"Once a defendant has been adjudged guilty in a fair proceeding, 'the presumption of innocence disappears,'" Cameron and Gadola wrote. "A trial judge 'may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person.' We conclude that the judge’s imperfect articulation of these principles does not establish bias or an appearance of impropriety."

But appeals court Judge Douglas Shapiro dissented, saying the case is "bad facts making bad law." He wrote that Nassar is guilty for abusing his position of trust and the sentence is not disproportionate outside the range of his plea agreement. "I therefore sympathize with the majority’s wish to overlook the trial court’s errors," Shapiro wrote. "However, doing so makes bad law. The process by which this sentence was imposed challenges basic notions of judicial neutrality, due process, the right to counsel, and the use of social media by judges. The errors at sentencing were neither minor nor isolated and by approving of them, even if reticently, the majority invites further distortions of sentencing procedures."

Shapiro also said, "contrary to the prosecution’s argument on appeal, the responsibility of a judge to render decisions impartially does not end with a guilty verdict or plea."  "The facts that come to light during a trial or sentencing may be grounds for a fair and impartial judge to impose a harsh sentence, but even when doing so, it is the judge’s responsibility to maintain judicial neutrality, and determine a proper sentence on the basis of the defendant’s crimes and character rather than the judge’s personal anger, or the extent of revenge sought by the defendant’s victims," Shapiro wrote....

As the decision spread on Twitter, some expressed relief at the court's ruling. Kaylee Lorincz, one of the women abused by Nassar, tweeted that the decision was, "the best christmas gift I could ever ask for."

Jacob Denhollander, the husband of Rachael Denhollander — the first woman to publicly accuse Nassar — said he was glad he lived in America where someone like Nassar can seek appeals and find due process.  "The reminders, trauma, & triggers for victims means that the justice system is not primarily the place where victims find closure & peace," Denhollander tweeted. "Closure and peace comes from the communal response of belief and validation of the victims and their own ability to construct an identity apart from what was done to them. The justice system can be part of that, but can also be traumatizing."

Nassar was charged in Ingham County in 2017 with multiple counts of first-degree criminal sexual conduct for abuse that occurred from 1998 to 2015. He was also charged in Eaton County with multiple counts of criminal sexual conduct, and also in federal court for possessing child pornography. In addition to his physician role at MSU, Nassar treated scores of athletes including the nation's top gymnasts while working for USA Gymnastics and the U.S. Olympic Committee....

Nassar argued that Aquilina showed bias in numerous ways such as saying that she had signed his "death warrant" during sentencing and also saying that the law did not allow her to impose cruel and unusual punishment on him. "If it did, I have to say I might allow what he did to all of these beautiful souls, these young women in their childhood, I would allow someone or many people to do to him what he did to others," said Aquilina.

In addressing Aquilina's comments, and other comments, during sentencing, the Cameron and Gadola wrote that Nassar had admitted guilt so the presumption of innocence had ended. "The sentencing judge’s statement was wholly inappropriate," they wrote. "In essence, the judge stated that she would allow physical retribution against Nassar if it were not constitutionally prohibited."

"Nassar has failed to establish plain error given that the sentencing judge’s comments did not indicate actual bias or prejudice," the majority judges continued. "We further conclude that Nassar has failed to establish that the alleged actual bias and/or prejudice affected his substantial rights. Specifically, as part of the plea agreement, Nassar agreed to a guidelines minimum sentence range between 25 and 40 years’ imprisonment for each count, with the sentencing judge having the discretion to determine the minimum sentence within that range as well as the discretion to determine the maximum sentence for all seven counts.

But Shapiro said Aquilina erred. "A guilty verdict terminates the presumption of innocence but it does not terminate a judge’s responsibility to exercise her judicial responsibilities consistent with the law and the Code of Judicial Conduct," he wrote.

I have quoted at length from this article because I cannot yet find the opinion online.  But that opinion is surely not to be the last work on these matters: I presume Nassar will appeal this decision up to the Michigan Supreme Court and perhaps thereafter in federal habeas (even though his various state and federal sentences for his many crimes surely ensure he will never see the outside of a prison even if he were to prevail on some of these matters).

Prior related posts:

• Does and should anyone care about just how and where child molester/gymnastics coach Larry Nassar rots in prison?
• Child molester/gymnastics coach Larry Nassar gets maxed-out, 60-year federal prison sentence for child porn offenses
• Child molester/gymnastics coach Larry Nassar gets (only?!?) 40 to 175 years as state prison sentence for mass molestation
• Highlighting comments, commentary and consequences from state sentencing of mass molester Larry Nassar
• Still more notable commentary on judicial conduct in sentencing of mass molester
• Mass molester Larry Nassar gets another 40 to 125 years in his third and final sentencing 

UPDATE: A helpful reader via the comments flagged that the 16-page "unpublished" majority opinion is available here, and the six-page dissent is available here.

Ohio Supreme Court strikes down "anti-procreation community-control condition" for man convicted for failing to pay child support to mothers of his 11 children

The Ohio Supreme Court yesterday rendered an interesting decision, by a 6-1 vote, striking down an interesting community control condition in Ohio v. Chapman, No. 2020-Ohio-6730 (Ohio Dec. 18, 2020) (available here). Here is the start and key concluding paragraphs from the majority opinion:

A man was convicted for failing to pay child support to the mothers of his 11 children and sentenced to community control.  One of the conditions of community control imposed by the court was that the man “make all reasonable efforts to avoid impregnating a woman” during his sentence.  The question before us is whether that condition was appropriate.  We conclude that it was not....

Chapman’s failure to properly prioritize his obligations toward his children and pay support as he is able could prompt several conditions of community-control sanctions that would reasonably relate to his offense.  The trial court properly ordered Chapman to obtain and maintain full-time employment.  It could have gone further in this direction: it might have ordered him to participate in job training, placed him in a program that would ensure that he was working and that child support was being deducted from his paycheck, required that he undergo education in financial planning and management, or placed restrictions on his spending.  All of these would be reasonably related to Chapman’s crime of nonpayment of child support.  But as long as the crime of nonsupport depends on an offender’s ability to pay, a prohibition requiring Chapman to “make reasonable measures” to avoid fathering another child during his term of community control is not.

The lack of a fit between the offense of which Chapman was convicted and the availability of other more effective conditions leads to the conclusion that the condition “unnecessarily impinge[d] upon the probationer’s liberty.”  Jones at 52.  On remand, the trial court must remove the anti-procreation condition, but may impose other conditions that are appropriately tailored to the goals of community control.

Justice French was the lone dissenter, and her opinion concluded with these points:

In Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, at ¶ 20-21, this court concluded that an anti-procreation community-control condition was overly broad because it did not contain a mechanism for lifting the condition.  But here, the trial court required only that Chapman make reasonable efforts to avoid impregnating another woman during his five-year community-control period.  The trial court then outlined a minimum of 12 ways by which Chapman could have the condition lifted.  This is not a case in which the trial court decided to impose an anti-procreation community-control condition for minor instances of failure to pay child support.  Chapman currently has at least 11 children that he is not supporting, and his child-support arrearage at the time of his 2018 resentencing was already over $200,000.  The trial court found that Chapman’s violations of his prior child-support obligations were “egregious and systemic.”  Under these facts, its anti-procreation condition is not overly broad.

Any predictions on who and how many pardons will be granted by Trump today?

This new Axios piece, headlined "Scoop: Trump pardons expected today," suggests we will see some (significant?) clemency action today from the White House (around 5pm I would guess).  Here is what Axios has to say on the matter:

President Trump plans to issue a wave of pardons today, moving to expedite acts of clemency before Christmas, according to a source with direct knowledge and advocates who have been briefed on the plans.

What to watch: Trump has been considering pardons for friends and allies, as Axios reported, interrupting conversations with associates to spontaneously suggest he add them to his pardon list.  He already pardoned his former national security advisor Michael Flynn.

• It was unclear who will be included in this batch.
• Sen. Rand Paul called on Trump to pardon Edward Snowden in an article for The Federalist on Thursday.  A source with direct knowledge of the planning said they did not expect Trump to follow through with a Snowden pardon.

The big picture: Trump has considered several controversial pardons, including for his former campaign chairman Paul Manafort and WikiLeaks founder Julian Assange.

I would expect Prez Trump would be inclined to "save" whatever might prove to be his most controversial pardons for right before he leaves the White House.  But this pre-X-mas reported "wave of pardons" could still prove very interesting, especially because it may reveal whether Prez Trump has any considerable interest in using his clemency powers to dole out a lot of (needed) mercy to folks who are not high-profile offenders with high-profile advocates.

So, just to set a marker and to put a prediction on the record, I will forecast that we will see a few dozen clemency grants (and I am rooting for commutations as well as pardons), with only a few of these grants going to high-profile folks.  This may be a bit of wishful thinking, as his longest previous list of grants came in February and had 11 recipients, with more than a few famous names.  It would be great to see Prez Trump at least double or triple that number today, but I am trying not to get my hopes up.

A few recent related posts:

• Two different takes on Prez Trump's clemency record as his term nears conclusion
• Prez Trump grants pardon to Michael Flynn ... are a lot more to come?
• Lots of (surprising and unsurprising) clemency chatter ... and great advocacy for clemency change 
• "Presidential Pardons and the Problem of Impunity" 
• "The Legality of Presidential Self-Pardons" 
• Discussing clemency activity by Prez Trump for six more weeks seems unavoidable, doesn't it? 
• Lots of notable pardon headlines as we approach the last month of Prez Trump's clemency powers 

UPDATE:  As of mid-morning on Saturday, December 19, there has been no announcement of any pardons from the White House. So, the right answers to the questions inthe title of this post are technically "nobody" and "zero."

I suspect the White House is taking a bit more time to check the pardon list, so I remain hopeful we will see a set of clemency grants before Christmas.  But with this issue and this Prez, I am never quite sure what is happening or will happen.

Lots of notable pardon headlines as we approach the last month of Prez Trump's clemency powers

In part because Prez Trump has not used his clemency power since last month's Thanksgiving week pardon for Michael Flynn, I have managed to avoid discussing the out-going President's potential pardon spree for many days now.  But there is, unsurprisingly, a cacophony of clemency chatter in various media, and highlighted by these recent piece:

From CNN, "'It's turned crazy': Inside the scramble for Trump pardons"

From the Daily Beast, "Trump Is Considering Clemency for Silk Road Founder"

From Forbes, "Trump And Pardons ... Here’s A Case That Might Interest Him"

From Inquisitr, "Justin Amash Calls On Donald Trump To Offer Clemency To Reality Winner: ‘Her Punishment Is Unjust’"

From Newsweek, "Will Donald Trump Pardon Edward Snowden? 'Anything Is Possible'"

From the New Yorker, "What are the Odds That Trump Pardons Himself?"

From WION, "Australian MP urges Donald Trump to pardon Julian Assange before leaving White House"

Here is a snippet from the CNN piece:

Because Trump has shown little interest in using the Justice Department's Pardon Attorney system for assessing requests for executive clemency, petitioners are approaching the White House directly, calling or emailing senior adviser Jared Kushner, chief of staff Mark Meadows or White House counsel Pat Cipollone -- when they can't get ahold of Trump himself....

If there is a governing principle in who appears most likely to secure clemency, it is someone the President either knows personally or who has powerful connections lobbying on their behalf.  At least one person working on behalf of clients seeking pardons said they hoped their loyalty to Trump over the past four years would pay off now.

As it happens, Trump is mulling the pardons at a juncture when loyalty appears his principal concern, complaining repeatedly over the past weeks that Republicans are deserting him when he needed them to help overturn the election results.  He has largely frozen out those advisers and associates who do not seem on the same page.  One person who used to speak to Trump regularly, but who delicately encouraged him to soften his post-election stance, no longer has his calls returned and hasn't heard from Trump in weeks.

In all, the President is considering pardons for more than two dozen people in his orbit whom he believes were targeted -- or could be targeted in the future -- for political ends. That's in addition to hundreds of requests from others who have approached the White House directly, and tens of thousands more whose petitions are pending at the Justice Department.

A few recent related posts:

• Two different takes on Prez Trump's clemency record as his term nears conclusion
• Prez Trump grants pardon to Michael Flynn ... are a lot more to come?
• Lots of (surprising and unsurprising) clemency chatter ... and great advocacy for clemency change 
• "Presidential Pardons and the Problem of Impunity" 
• "The Legality of Presidential Self-Pardons" 
• Discussing clemency activity by Prez Trump for six more weeks seems unavoidable, doesn't it? 

Highlighting the election of local prosecutors who have pledged never to seek death sentences

Daniel Nichanian has this great entry at The Appeal: Political Report titled "Newly Elected Prosecutors Are Challenging The Death Penalty," which effectively reviews the political success of a significant number of prosecutors who have pledged not to pursue capital sentences. Here is parts of the poast:

Death penalty opponents have made great strides over the last decade, getting states to outlaw the sentence or at least reduce its use. Now they’re gaining allies from local officials with direct power to shut down capital punishment: prosecutors.

Last week, Deborah Gonzalez and Jason Williams became the latest candidates to win elections for district attorney after pledging to never seek the death penalty once in office.  Their runoff wins in Athens, Georgia, and New Orleans add to a string of similar results this year in Los Angeles County, Arizona’s Pima County (Tucson), Georgia’s Fulton County (Atlanta), Oregon’s Multnomah County (Portland), and Texas’s Travis County (Austin).  Incoming prosecutors largely echoed advocates’ longtime claims, emphasizing that the death penalty is applied very unequally and that its use is inhumane and costly.

Their wins are poised to upend the culture of capital punishment in places that have been prolific in handing out death sentences, and advocates are preparing to press them to overturn these past sentences.

There are more than 200 people on death row from Los Angeles, where the DA election in November saw George Gascón defeat an incumbent who over the course of her tenure secured the death penalty nearly exclusively against people of color.  Gascón took office this week and promptly repeated his campaign pledge to not just drop the death penalty in future cases but also review past death sentences, a step few prosecutors have taken.  “The death penalty does not make us safer,” Gascón tweeted on Monday. “It’s racist, morally untenable, irreversible, and expensive.  And today, it’s off the table.”

Pima County has also been a death penalty hotspot.  It leads Arizona counties in number of executions since the penalty was reinstated in 1976. But this fall voters elected as their chief prosecutor a former public defender, Laura Conover, who highlighted her past advocacy with the Coalition of Arizonans to Abolish the Death Penalty. Conover is not the first candidate with such experience to be elected.  Parisa Dehghani-Tafti, who was the legal director of the Mid-Atlantic Innocence Project, won a prosecutor’s race in northern Virginia last year on a similar platform.

“It’s absolutely tremendous and exciting that this is taking place in Louisiana, and in Georgia, and in Virginia, states that have a long history with the death penalty, and of course Los Angeles County, one of the biggest contributors to the enormous Californian death row,” said Laura Porter, executive director of the 8th Amendment Project.  “It’s supportive of the trend of the country overall moving away from the death penalty.”

These seven newly elected prosecutors who said they would never seek a death sentence are Democrats, even though Republicans haven’t been absent from the anti-death penalty movement. Support from some Republican lawmakers proved decisive in 2019 and 2020 when Colorado and New Hampshire’s legislatures repealed the death penalty.  (The Political Report only analyzed candidate positions in the 28 states where the death penalty is still legal.)

Elsewhere, longtime prosecutors who have repeatedly used the death penalty lost re-election bids. Most notably, Ron O’Brien is on his way out in Franklin County, Ohio, after decades of zealously championing capital punishment.  The incoming prosecutor, Democrat Gary Tyack, told the Political Report via a spokesperson during his campaign that he would support legislation to ban the death penalty but also that he would consider seeking it as long as it is permitted by the state.  Patsy Austin-Gatson, the incoming Democratic DA in Gwinnett County, Georgia, told the Political Report the same thing this week.

Advocates hope that more DAs will draw strong lines in the sand and rule out adding people to death row. But they also stress that, even with those who make such forward-looking commitments, more is needed.  Prosecutors who oppose the death penalty should also use all legal and political means at their disposal to resentence people who are already on death row and to fight their executions.  “It’s really important … to push prosecutors not just to say, ‘I’ll refrain from using this harsh practice in the future,’ but to refuse to preside over it in the present,” said Ben Cohen, an attorney who works against the death penalty in Louisiana.  “It’s barbaric to allow death sentences from the 1980’s and 1990’s to be executed on your watch.”...

In Los Angeles, though, Gascón released a plan early in his campaign outlining how he would aim to get people off of death row “utilizing every legal avenue available to me.” “It’s completely transformative,” said Natasha Minsker, an attorney who is part of Gascón’s transition team on the death penalty.  “The fact that Los Angeles County is now, as of today, going to stop pursuing death sentences and going to shift in a different direction … is a complete game changer.”  No county in the nation has more people on death row than Los Angeles; Angelenos approved abolishing capital punishment in a 2016 referendum but the initiative failed statewide.

Minsker outlined the range of tools that Gascón can use. Where there is active litigation over a specific legal or factual issue, he could concede arguments made by defense attorneys “and no longer fight for [death sentences] to be in place,” she said.  Many appeals are handled by the attorney general rather than the DA, but Gascón could still file amicus briefs to assist people contesting their sentences.  Gascón could also request a resentencing hearing for someone on death row, Minsker said.  DAs don’t necessarily have this power nationally; here it stems from California’s relatively new Section 1170(d), a statute that adopted in 2018 that expanded DAs’ powers to revisit old cases. Minsker warned that courts retain ultimate say in whether to remove people from death row.  “The real unknown here is the judges,” she said.  “I’m concerned that we may end up in a situation where we have disparities based on who the judge is.”

It is usually prosecutors who are the greatest hurdle to ending or curtailing the death penalty.  They routinely work to derail legislative proposals, including in Ohio, Oregon, and Wyoming over the last few years.  Even DAs who campaigned on their discomfort with capital punishment have gone on to fight efforts to stop executions, such as Kim Ogg in Harris County (Houston).  But Ogg had not outright ruled out seeking the death penalty during her 2016 campaign, a far cry from the stronger positions staked by the latest wave of winners.

Via 6-3 per curiam ruling, SCOTUS reinstates Arizona death sentence after finding Ninth Circuit "clearly violated [its] AEDPA jurisprudence"

The US Supreme Court issued this lengthy order list this morning, though much of its length comes from the Court's 13-page per curiam decision in Shinn v. Kayer, No. 19-1302 (S. Ct. Dec. 14, 2020) (available here). The Kayer case results from a murder committed more than a quarter century ago which resulted in an Arizona death sentence. The SCOTUS decision, from which Justices Breyer, Sotomayor, and Kagan dissented but without any opinion, vacates a Ninth Circuit reversal of the death sentence. Here is how the opinion begins and ends:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) restricts the power of federal courts to grant writs of habeas corpus based on claims that were “adjudicated on the merits” by a state court.  28 U.S.C. §2254(d).  When a state court has applied clearly established federal law to reasonably determined facts in the process of adjudicating a claim on the merits, a federal habeas court may not disturb the state court’s decision unless its error lies “beyond any possibility for fairminded disagreement.”  Harrington v. Richter, 562 U.S. 86, 103 (2011).  In this case, the Court of Appeals erred in ordering issuance of a writ of habeas corpus despite ample room for reasonable disagreement about the prisoner’s ineffective-assistance-of-counsel claim.  In so doing, the Court of Appeals clearly violated this Court’s AEDPA jurisprudence.  We therefore grant the petition for certiorari and vacate the judgment below....

Under AEDPA, state courts play the leading role in assessing challenges to state sentences based on federal law.  A state court heard Kayer’s evidence and concluded that he failed to show prejudice.  The court below exceeded its authority in rejecting that determination, which was not so obviously wrong as to be “beyond any possibility for fairminded disagreement.” Id., at 103.  Under §2254(d), that is “‘the only question that matters.’” Id., at 102.

We grant the petition for a writ of certiorari, vacate the judgment of the United States Court of Appeals for the Ninth Circuit, and remand the case to that court for further proceedings consistent with this opinion.

An awesome reading list on "Second Look Sentencing"

Greg Newburn has created this terrific new posting under the title "Second Look Sentencing: A (Running) Reading List for Legislators, Staff, Advocates, and Everyone Else." I highly recommend all the items linked in this great reading list, and here is the post's preface to the list:

The idea of “Second Look” sentencing — that the law should allow some mechanism by which institutional actors can legally revisit sentences to ensure they remain appropriate (or to adjust those that never were) — has been around for some time.  Now, it is gaining traction. For example, the Model Penal Code now contains a second look provision; last year, a second look bill was filed in the Florida Legislature, and passed several committees (the bill was recently re-filed for the 2021 session); a second look bill looks poised to pass in Washington, D.C. any day now; the new District Attorney for Los Angeles County, George Gascón, announced his office will create a “resentencing unit” tasked with conducting second look-style reviews in thousands of cases; earlier this year, Broward County, Florida State Attorney Michael Satz announced what he called an “equitable review” process that led to the early release of drug offenders serving sentences no longer found in law; and the National Association of Criminal Defense Lawyers just released model second look legislation, a fantastic aid for legislators interested in adopting second look laws in their states.

Given the momentum second-look sentencing seems to have at the moment — and the fact that adopting such laws is a moral necessity given the way current sentencing structures deny thousands of our fellow human beings their liberty unnecessarily — I thought it might be useful to put together a list of materials — law review articles, opinion pieces, blog posts, panels, etc. — that legislators, staff, advocates, and laypeople could use for a better understanding of some of the theoretical and moral issues surrounding second look sentencing, how it would work in practice, why it would protect and even improve public safety outcomes, and so on.

US completes is second execution in as many days with lethal injection of Alfred Bourgeois

As reported in this AP piece, the "Trump administration continued its unprecedented series of post-election federal executions Friday by putting to death a Louisiana truck driver who severely abused his 2-year-old daughter for weeks in 2002, then killed her by slamming her head against a truck’s windows and dashboard."  Here is more:

Alfred Bourgeois, 56, was pronounced dead at 8:21 p.m. Eastern time after receiving a lethal injection at the federal prison in Terre Haute, Indiana.

His lawyers argued Bourgeois had an IQ that put him in the intellectually disabled category, saying that should have made him ineligible for the death penalty under federal law.  Victor J. Abreu said it was “shameful” to execute his client “without fair consideration of his intellectual disability.”

In his last words, Bourgeois offered no apology and instead struck a deeply defiant tone, insisting that he neither killed nor sexually abused his baby girl.  “I ask God to forgive all those who plotted and schemed against me, and planted false evidence.”  And he added: “I did not commit this crime.”

Bourgeois was the 10th federal death-row inmate put to death since federal executions resumed under President Donald Trump in July after a 17-year hiatus.  He was the second federal prisoner executed this week, with three more executions planned in January....  The last time the number of civilians executed federally was in the double digits in a year was under President Grover Cleveland, with 14 in 1896.

The series of executions under Trump since Election Day, the first in late November, is also the first time in more than 130 years that federal executions have occurred during a lame-duck period.  Cleveland also was the last president to do that.  Bourgeois’ lawyers contended that the apparent hurry by Trump, a Republican, to get executions in before the Jan. 20 inauguration of death-penalty foe Joe Biden, a Democrat, deprived their client his rights to exhaust his legal options....

Several appeals courts have concluded that neither evidence nor criminal law on intellectual disability supported the claims by Bourgeois’ legal team....

In Bourgeois' case, the crimes stand out as particularly brutal because they involved his young daughter....  Bourgeois whipped the girl with an electrical cord, burned her feet with a cigarette lighter and hit her in the head with a plastic baseball bat so hard that her head swelled — then refused to seek medical treatment for her, court documents say. Prosecutors also said he sexually abused her....

It was during a trucking run to Corpus Christi, Texas, that he ended up killing the toddler.  Again angered by her toilet training, he grabbed her inside the truck by her shoulders and slammed her head on the windows and dashboard four times, court filings say.  When the girl lost consciousness, Bourgeois’ wife pleaded for him to get help and he told her to tell first responders that she was hurt falling from the truck. She died the next day in a hospital of brain injuries.

In a statement after the execution, other members of the young girl’s family said she “lost her life brutally to a monster who lived for 18 years after the crime.” “Now we can start the process of healing,” the statement, distributed by the Bureau of Prisons, said.  “It should not have taken 18 years for us to receive justice for our angel.  She will forever be loved and missed.”

After his 2004 conviction, a judge rejected claims stemming from his alleged intellectual disability, noting he did not receive a diagnosis until after he was sentenced to death. “Up to that point, Bourgeois had lived a life which, in broad outlines, did not manifest gross intellectual deficiencies,” the court said.  Attorneys argued that finding was based on misunderstandings about such disabilities.  They said Bourgeois had tests that demonstrated his IQ was around 70, well below average, and that his childhood history buttressed their claims.

The Supreme Court denied of Bourgeois's application for a stay of execution and cert petition by a 7-2 vote and it is available at this link.  Justice Sotomayor wrote a dissent, joined by Justice Kagan, that starts this way:

The Federal Death Penalty Act (FDPA) provides that “a sentence of death shall not be carried out upon a person who is mentally retarded.” 18 U.S.C. §3596(c).  The Court today allows the execution of Alfred Bourgeois to proceed even though Bourgeois, who has an IQ between 70 and 75, argues that he is intellectually disabled under current clinical standards.  I would grant his petition to address whether the FDPA prohibits his execution.

"The Administrative Law of the Eighth (and Sixth) Amendment"

The title of this post is the title of this book chapter authored by Richard Bierschbach and recently posted to SSRN.  Here is its abstract:

On the surface, few similarities exist between modern administrative law and the modern constitutional law of sentencing.  Administrative law is preoccupied with structural constitutional law, statutory interpretation, and regulatory policy.  Constitutional sentencing law is overwhelmingly concerned with individual constitutional rights, blame, and punishment.  Scholars thus rarely draw connections between the two.

This Chapter — written for a forthcoming volume on “The Eighth Amendment and Its Future in a New Age of Punishment” — does just that.  Administrative law and the constitutional law of sentencing can be seen as sharing a fundamental concern about the structure of decision-making: how to ensure that difficult, value-laden judgments best reflect and filter the viewpoints and concerns of those they affect.  Just as the institutional and procedural structure of administrative law evolved in large part to address issues of voice and perspective in the regulatory context, we might understand the arc of constitutional sentencing law over the last half-decade as slowly moving in a parallel direction.

US completes execution of Brendan Bernard despite high-profile appeals for relief

As reported in this AP piece, the "Trump administration on Thursday carried out its ninth federal execution of the year and the first during a presidential lame-duck period in 130 years, putting to death a Texas street-gang member for his role in the slayings of a religious couple from Iowa more than two decades ago."  Here is more:

Four more federal executions, including one Friday, are planned in the weeks before President-elect Joe Biden’s inauguration.

The case of Brendan Bernard, who received a lethal injection of phenobarbital inside a death chamber at a U.S. prison in Terre Haute, Indiana, was a rare execution of a person who was in his teens when his crime was committed.

Several high-profile figures, including reality TV star Kim Kardashian West, had appealed to President Donald Trump to commute Bernard’s sentence to life in prison.

With witnesses looking on from behind a glass barrier, the 40-year-old Bernard was pronounced dead at 9:27 p.m. Eastern time.

Bernard was 18 when he and four other teenagers abducted and robbed Todd and Stacie Bagley on their way from a Sunday service in Killeen, Texas. Federal executions were resumed by Trump in July after a 17-year hiatus despite coronavirus outbreak in U.S. prisons....

[J]ust before the execution was scheduled, Bernard’s lawyers filed papers with the Supreme Court seeking to halt the execution. The legal team expanded to include two very high-profile attorneys: Alan Dershowitz, the retired Harvard law professor who was part of Donald Trump’s impeachment defense team and whose clients have included O.J. Simpson, Claus von Bulow and Mike Tyson; and Ken Starr, who also defended Trump during the impeachment and is most famous as an independent counsel who led the investigation into Bill Clinton.

But about two and a half hours after the execution was scheduled, the Supreme Court denied the request, clearing the way for the execution to proceed.

The Supreme Court's denial of Benard's application for a stay of execution and cert petition is available at this link. The vote was 6-3, with Justice Sotomayor writing the only full dissent. That dissent starts this way:

Today, the Court allows the Federal Government to execute Brandon Bernard, despite Bernard’s troubling allegations that the Government secured his death sentence by withholding exculpatory evidence and knowingly eliciting false testimony against him.  Bernard has never had the opportunity to test the merits of those claims in court.  Now he never will. I would grant Bernard’s petition for a writ of certiorari and application for a stay to ensure his claims are given proper consideration before he is put to death.

NACDL releases model "Second Look" sentencing legislation providing for resentencing after a decade in prison

As noted in this press release, today "NACDL released its model 'Second Look' sentencing legislation and accompanying report – Second Look = Second Chance: The NACDL Model “Second Look” Legislation.  The NACDL model legislation provides a vehicle that legislatures can use to safely reduce the number of individuals serving excessive, counter-productive sentences: guaranteeing all incarcerated individuals a 'Second Look' once they have spent at least a decade in prison."  Here are links to the model legislation and report:

• NACDL’s Model “Second Look” Legislation
• NACDL’s Report Accompanying Its Model “Second Look” Legislation – Second Look = Second Chance: The NACDL Model “Second Look” Legislation

Here is the key operative provision of the model legislation:

Notwithstanding any other provision of law, including any applicable mandatory minimum sentence, an incarcerated individual who has served at least ten years of their sentence may petition their sentencing judge for a reduction of their sentence.

And here are a few paragraphs from the 14-page report:

This report advocates a simple yet powerful step states can take to safely reduce the number of individuals locked into counter-productive, decades-long sentences: guaranteeing that every inmate will get a “Second Look” once they have spent at least a decade in prison.  This proposal would allow long-term incarcerated individuals, assisted by counsel, to petition courts for a sentence reduction after ten years in prison, and periodically thereafter if warranted.  As this report explains, the procedure created by NACDL’s proposed legislation is flexible, allowing judges to consider a wide range of up-to-date information in assessing whether a lengthy sentence can appropriately be reduced.  It gives victims a voice to whatever extent they want one, without burdening them.  It includes appellate review to ensure fairness and consistency. And it includes mechanisms for channeling the resulting savings back into programs that will help make the program sustainable — and help the individuals who receive a second chance to succeed and become productive members of society, to the benefit of all.

“Second Look” is an idea whose moment has arrived.  By enacting comprehensive legislation like that proposed here, state governments can position themselves as leaders in correcting the worst and most counterproductive excesses of the mass incarceration era, delivering savings to state budgets, and a second chance to individuals and communities who have been left behind for too long.

Noting the notable number of prosecutors now supportive of sentencing second looks

The Washington Post had this important and lengthy new article from earlier this week under the headline "A growing group of prosecutors, who say the job is more than locking people up, wants to help free criminals, too."  Here are excerpts from the start of the piece:

When Calvin McNeill was 16, he and a group of friends in Baltimore decided to rob a neighborhood dice game.  Things got chaotic, and McNeill shot and killed a man. It was 1981. The teen was sentenced to life in prison.  Over the next 39 years, McNeill became a model inmate and was approved for parole three times, but each time the Maryland governor vetoed his release. 

So Baltimore State’s Attorney Marilyn Mosby joined a defense motion to reconsider his sentence last summer.  A judge granted it, and McNeill was freed in July this year.  Since his release, “everybody that I have come across has opened up their arms to me,” McNeill said, “and said, ‘We’re glad to see you home.  And we understand that you were a baby when you got locked up.’”

On Monday, Mosby announced the launch of a sentencing review unit in Baltimore to address both mass incarceration and racial inequities in the justice system.  Of the 2,500 people serving life sentences in Maryland, 79 percent are Black, Mosby said, though African Americans make up only 30 percent of the state population.  In Baltimore, of the 815 prisoners sentenced to life, 94 percent are Black.

Also Monday, the newly elected district attorney of Los Angeles, George Gascón, announced at his swearing-in that he, too, is launching a sentencing review unit.  Gascón said he conservatively estimates that 20,000 prisoners will immediately qualify for resentencing.  He said he believes some were given drastically long sentences, others are older and unlikely to reoffend, and others should be released because of covid-19 concerns.

“The role of a prosecutor is not only one of seeking justice,” Gascón said in an interview, “but also of correcting injustice . . . This is going to be the first time in the nation where there will be this massive effort coming from the largest prosecution offices in the country.”  He said half of Los Angeles’s prisoners are rated low-risk to reoffend and if thousands are released, “there will be billions of dollars in savings” on incarceration costs. “This is gigantic,” Gascón said.

The push to begin revisiting lengthy prison sentences, as part of the justice reform effort being promoted by big city prosecutors around the country, is gaining momentum even in states like Maryland, where there is no formal mechanism for prosecutors to revisit settled cases.  Prosecutors in San Francisco, Boston, Philadelphia and Brooklyn are also launching sentencing review initiatives.

While a growing number of prosecutors also are seeking to uncover and reverse wrongful convictions, which occur in a small percentage of cases, the move to release those who were correctly convicted but have now served decades in prison could have a far wider impact.  More than 2 million Americans are in jail or prison, which is believed to be the highest incarceration rate in the world.

In Washington state, a bill allowing prosecutors to seek resentencing passed this year, and the district attorney in Seattle announced a sentencing review unit in June. But the office had already been quietly achieving prisoner releases since 2007, “with a bit of a wink to the judge,” King County District Attorney Dan Satterberg said.  “We knew no one was going to appeal it.”  In the District, the city has released 53 inmates since passing a law in 2016 allowing for resentencing if the offender was younger than 18 and served at least 15 years in prison.  Now the city council is considering expanding the group of eligible inmates to those who committed crimes at age 24 or younger and have spent 15 years incarcerated....

Last year in Prince George’s County, newly elected State’s Attorney Aisha Braveboy created the state’s first conviction and sentencing integrity unit to review both convictions and sentencings that might deserve new consideration.  Seven people sentenced to life as juveniles have been released, an office spokeswoman said.

Extreme sentences, particularly those that wouldn’t be imposed today, divert resources away from the root sources of crime, turn prisons into elder care centers and alienate communities torn by mass incarceration, said Miriam Krinsky, executive director of Fair and Just Prosecution, which helps organize and coordinate newly elected prosecutors. “When the system is out of alignment with communities,” Krinsky said, “people will stop trusting the system and stop cooperating, and then we’re all at risk.”

Prosecutors launching such efforts have devised a number of factors to consider for each case, such as the prisoner’s original crime, their rehabilitation in prison, their plan for reentry into society, their likelihood to reoffend and the opinions of the victims in their case.  A number of experts said that victims often don’t oppose the release of the offender and that the occurrence of new crimes by those released is low.

I cannot help but note that many years ago I gave a keynote speech at a conference focused on the work of prosecutors when I suggested they should be much more involved in reviewing past sentences. That speech got published as Encouraging (and Even Requiring) Prosecutors to Be Second-Look Sentencers, 19 Temple Political & Civil Rights L. Rev. 429 (2010).  It is nice to see that it only took about a decade for this idea to start coming into vogue.

Is the unanimous SCOTUS ruling in Briggs notably kind to the "evolving standards" approach to the Eighth Amendment?

I noted in this post the Supreme Court's unanimous ruling this morning in US v. Briggs, No. 19-108 (S. Ct. Dec. 10, 2020) (available here), which fundamentally concerned an issue of statutory interpretation.  But the Eighth Amendment was part of the fabric of the statutory debate, and I was struck by how the opinion by Justice Alito for the full Court — save Justice Barrett, who was not yet on the Court by the time of oral argument — discussed how the Eighth Amendment is interpreted in these two passages:

This Court has held that the Eighth Amendment incorporates “‘evolving standards of decency.’” Kennedy v. Louisiana, 554 U.S. 407, 419 (2008) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion); emphasis added).  Thus, even if we were to hold that rape could be punished by death in the military context, the evolving-standards test could later lead to a different result and thus a different statute of limitations at some point in the future.  Such evolution has been held to have occurred on a number of past occasions.  Compare Atkins v. Virginia, 536 U. S. 304, 321 (2002) (Eighth Amendment prohibits death penalty for defendant described as mentally retarded), with Penry v. Lynaugh, 492 U.S. 302, 340 (1989) (Eighth Amendment permits death penalty for such a defendant); compare also Roper v. Simmons, 543 U.S. 551, 574–575 (2005) (Eighth Amendment prohibits death penalty for crime committed by person under 18 years of age), with Stanford v. Kentucky, 492 U. S. 361, 380 (1989) (Eighth Amendment permits death penalty for defendants who are at least 16 years of age)....

As noted, in deciding whether the Eighth Amendment permits a death sentence for a particular category of offenses or offenders, the Court has looked to evolving societal standards of decency and has also rendered its own independent judgment about whether a death sentence would aptly serve the recognized purposes of criminal punishment in certain categories of cases. See Kennedy, 554 U.S., at 419–421, 441–446; Roper, 543 U.S., at 561, 571–575; Atkins, 536 U.S., at 318–321.  Some Justices have eschewed aspects of those approaches and have looked instead to the original understanding of the Eighth Amendment.  See, e.g., Graham v. Florida, 560 U.S. 48, 99–102 (2010) (THOMAS, J., dissenting); Atkins, 536 U. S., at 348–349 (Scalia, J., dissenting); Thompson v. Oklahoma, 487 U.S. 815, 864, 872–873 (1988) (same); cf. Glossip v. Gross, 576 U.S. 863, 894, 898–899 (2015) (Scalia, J., concurring).  But under either method, the inquiry is quite different from the one that a lawmaker might make in fixing a statute of limitations.

This accounting of Eighth Amendment interpretation in Briggs is certainly meant to be just descriptive, as it notes how "the Court has" approached Eighth Amendment interpretation and how some Justices " have eschewed aspects of those approaches and have looked instead to the original understanding of the Eighth Amendment."   Nevertheless, this discussion of the "evolving-standards test" still struck me as fairly "kind" to a "living Constitution" vision of the Eighth Amendment in a unanimous Court ruling circa 2020.  Though I am likely reading way too much into these passages, I will be eager in future writings to have a fresh 2020 citation for the proposition that the Supreme Court has indicated that courts are look "to evolving societal standards of decency" when interpreting the Eighth Amendment.  United States v. Biggs, No. 19-108, slip op. at 8 (S. Ct. Dec. 10, 2020).  And, I will also like to be able to say that, as the Supreme Court has clearly explained , "this evolving-standards test could later lead to a different result" under the Eighth Amendment even when a punishment has previous been upheld as constitutional.  Id. at slip op. 6-7.

SCOTUS unanimously rejects narrowed interpretation of UCMJ statute of limitation for rape

The Supreme Court this morning handed down a unanimous opinion opinion in US v. Briggs, No. 19-108 (S. Ct. Dec. 10, 2020) (available here), concerning the applicable statute of limitations in military rape prosecutions.  Here is how Justice Alito's opinion for the Court gets started:

We must decide in these cases whether, under the Uniform Code of Military Justice (UCMJ), a prosecution for a rape committed during the period from 1986 to 2006 had to be commenced within five years of the commission of the charged offense or whether such a prosecution could be brought at any time, as is the rule at present.  The Court of Appeals for the Armed Forces (CAAF), reversing its prior decisions on this question, held that the statute of limitations was five years and that it therefore barred the rape convictions of respondents, three military service members.  See 78 M. J. 289 (2019); 78 M. J. 415 (2019); 79 M. J. 199 (2019).  We granted certiorari, 589 U. S. ___ (2019), and now reverse.

The opinion that follows goes on to discuss Eighth Amendment jurisprudence in the course of conclude that this jurisprudence should not impact interpretation of the statute of limitation at issue here. Here are some key passages:

In short, if we accepted the interpretation of Article 43(a) adopted by the CAAF and defended by respondents, we would have to conclude that this provision set out a statute of limitations that no one could have understood with any real confidence until important and novel legal questions [regarding the Eighth Amendment] were resolved by this Court. That is not the sort of limitations provision that Congress is likely to have chosen....

Viewing Article 43(a) in context, we are convinced that “punishable by death” is a term of art that is defined by the provisions of the UCMJ specifying the punishments for the offenses it outlaws. And under this interpretation, respondents’ prosecutions were timely.

Expert panel reviewing conviction and sentence urges prison release in high-profile Minnesota homicide case

As reported in this new AP piece, headlined "Expert panel recommends releasing Myon Burrell from prison, more investigation," a notable expert panel that was convened to examine both the conviction and sentence in a high-profile Minnesota case released its report today. Here are the basics from the press report:

A panel of national experts who reviewed Myon Burrell’s conviction for the fatal shooting of a child in Minneapolis recommended that he be released from a life prison term and that authorities continue to investigate his case.  The group, which released its findings Tuesday afternoon, did not examine Burrell’s guilt or innocence in the 2002 killing of 11-year-old Tyesha Edwards, who was struck by a stray bullet as she did homework at her dining room table.

However, the 59-page independent report expressed concerns with investigators’ and prosecutors’ reliance on jailhouse informants and the minimal attention — or complete lack thereof — paid to evidence and witnesses that favored Burrell’s exoneration.  “ … The panel believes that no purpose is served by Burrell’s continuing incarceration, and no negative fact overwhelms the imperative of freedom,” the report said. 

It also referenced the growing understanding of how minors’ underdeveloped brains differ from adults’, and its application to prison terms.  Burrell, 34, was 16 when he was identified as the person who fired gunshots at a rival gang member in Minneapolis; a bullet penetrated a nearby home and killed Edwards.

Burrell, who serves as an imam in the Stillwater prison, has a re-entry plan that involves living with his wife in north Minneapolis or father in Coon Rapids. He has also been offered employment and job training at Al Maa’uun, an Islamic faith community in north Minneapolis, according to the report.

The panel recommended that Attorney General Keith Ellison’s new Conviction Review Unit continue to examine the police investigation into Burrell and his prosecution by the Hennepin County Attorney’s Office. “The record to date reveals several indications that tunnel vision was present in the case,” the report said. “ … Evidence supporting these theories of Burrell’s guilt appears to have been elevated, while evidence supporting his innocence was minimized, not fully explored, or, in some cases, suppressed.”...

Edwards’ father, Jimmie Edwards, told the panel: “If you do the crime, you do the time. [Burrell] is a thug and his whole family is thugs … I hope and pray they will not release him.” Most of Edwards’ family members declined to speak with the panel.

The findings come almost two weeks after Hennepin County Attorney Mike Freeman issued a news release noting that he made an offer to Burrell’s attorney to drop Burrell’s 15-year prison term for attempting to kill the intended target, Timothy Oliver.  Burrell would still have to serve a life term for Edwards’ killing.  (Freeman said neither he nor a judge could change that term.)

Burrell has served 18 years of the life sentence and is eligible for parole in 12 years. Burrell’s attorney, Daniel Guerrero, has said that the timing and purpose of Freeman’s news release was perplexing, and that Freeman can cut the shorter sentence without his approval.  Freeman said Burrell was guilty but deserved reconsideration because he was a minor at the time. “We certainly could not agree to an arrangement where we agree that he’s guilty and [say] ‘Thank you for reducing his sentence,’ ” Guerrero said at the time.

Burrell’s case became a flash point in Sen. Amy Klobuchar’s presidential bid earlier this year when the Associated Press published an investigation raising concerns outlined in the report.  Klobuchar was Hennepin County Attorney when Burrell was first convicted by jurors in 2003.  Burrell was granted a new trial and was convicted of first-degree murder and attempted first-degree murder in a bench trial in 2008 after Freeman took over as Hennepin County Attorney....

According to the report: Six jailhouse informants testified in Burrell’s 2008 trial with the expectation or hope of receiving “benefits” or deals in their cases, including federal cases. Some deals were signed after they provided helpful testimony, which also led to incomplete trial records on the deal. The panel recommended further investigation of such deals. “ … The record does clearly show that the deal being discussed — and, in some cases, that had been offered — were extraordinarily generous,” the report said.

Informant Terry Arrington received a “dramatic” and “highly unusual” deal that reduced his federal sentence from 16 years to 3 years. Arrington recanted his testimony after trial, saying he had testified to shorten his sentence. Informant Dameon Leake had the same motive when he testified; he also later recanted. Another informant’s state sentence was cut in half from a little over 12 years to a little over 6 years.

“The panel surmises that the truly extraordinary nature of these sentence reductions may reflect the degree of public pressure that authorities were feeling to produce evidence that could support a conviction in this high-profile case,” the report said. The panel urged Ellison’s office to obtain all state and federal records related to deals struck with the informants and communications with them, as well as their testimony and related files in other cases to vet their credibility....

The panel was organized by the Center on Wrongful Convictions at Northwestern Pritzker School of Law and the Innocence Project. It was chaired by Mark Osler, a professor at the University of St. Thomas School of Law, and included five other experts from across the country.

The full 60-page "Report Of The Independent Panel To Examine The Conviction And Sentence Of Myon Burrell" is available at this link and it makes for an interesting and impressive read.

Tangible example of continuing big sentence reductions in COVID era thanks to the FIRST STEP Act

I have highlighted in some recent posts some important new circuit rulings about district courts' sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act (see here and here).  These rulings reinforce that federal judges now have broad authority to consider any and all "extraordinary and compelling reasons" for a sentence reduction and need not just focus on medical reasons for granting compassionate release.  But, of course, amidst the worldwide COVID pandemic, lots and lots of vulnerable inmates have lots and lots of medical reasons for requesting compassionate release, and many federal judges have been responsive to these requests.  

As of this writing, the BOP is now reporting at this FSA page that there have been "2,205 Approved" total "Compassionate Releases / Reduction in Sentences" since the passage of the FIRST STEP Act in December 2018.  The US Sentencing Commission has previously reported, as noted here, that 145 of these motions were granted in "First Step Year One," which in turn suggests that over 2000(!) compassionate release motions have now been granted by federal district judges in the COVID era. 

These topics are on my mind because a helpful reader sent me a district court ruling granting a sentence modification last week that provides a tangible example of a defendant securing quite a significant sentence reduction.  I sometimes get asked about examples of a defendant securing relief despite having served less than half of their initial sentence, and US v. Ferizi, No. 1:16-cr-42 (LMB) (ED Va. Dec. 3, 2020) (available for download below), is such a case.  The defendant in Ferizi was initially sentenced to 240 months in prison, but that sentence was "reduced to time served" after he served just over 60 months. Here is an excerpt (cites removed):

There is no dispute that defendant has a particularized susceptibility to the disease.  Defendant has had a chronic cough since childhood, and was diagnosed with asthma in 2018. Defendant's obesity is yet another factor that places him at greater risk for severe illness — the CDC has warned that having a body mass index greater than 30 is a risk factor, and defendant's BMI has fluctuated between 30 and 31 during his incarceration.  Considering these multiple risk factors, the government has conceded that Ferizi is at elevated risk of contracting COVID-19, and as such has established 'extraordinary and compelling circumstances' to justify release for purposes of 18 U.S.C. § 3582....

Defendant has also satisfactorily responded to the Court's concerns that it might be infeasible to release him if he could not then be promptly deported, either because he might be on a no-fly list or because Kosovo might refuse to accept him.  The government has "confirmed with FBI and ICE" that, in spite of defendant's no-fly status, he would be able to board a specifically-designated deportation flight....

The government argues that even if that is the case, "the seriousness of [defendant's] offense and the danger he poses to the community make him an inappropriate candidate for compassionate release."  There is no doubt that defendant committed a serious offense when he provided the personal information of U.S. government and military employees to ISIL, and as the victim impact letter attached to the Presentence Investigation Report demonstrates, his actions were harmful to the individuals whose names appeared on the list posted by ISIL.  Nevertheless, even defendants who have committed very serious offenses can be appropriately released from custody or supervision where "[t]here is no indication that defendant poses a risk to the public, and reducing defendant's sentence to time served will not diminish the seriousness of his offense or respect for the law."...

In this case, defendant's offense did not involve violence, and none of the individuals whose information he gave to ISIL suffered physical harm. Defendant has explained that he
"totally and completely oppose[s] ISIL and all that it stands for," and that immaturity rather than ideology was the primary motivator of his conduct....  Defendant had no significant criminal history before his arrest for his present offenses, which he committed when he was only 19 years old.  He has incurred only minor infractions while in BOP custody, all of which were more than two years ago.  He has completed educational courses and drug treatment programs, and has been rated by BOP staff as a "low" risk for recidivism....

Given defendant's age; the more than five years he has spent in prison, including the particularly brutal months in the Malaysian prison; his health risks; and the conditions at Gilmer, defendant has established extraordinary and compelling grounds for release, which the § 3552 [sic] factors do not outweigh. 

Download Ferizi Order Granting Compassionate Release

A few of many prior related posts:

• Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court?
• Granting of compassionate release reduces ridiculous federal sentence by hundreds of years
• Spotlighting remarkable (but still cursory) data on "compassionate release" after FIRST STEP Act 
• Back by popular demand, another VERY long list of federal sentence reductions using § 3582(c)(1)(A) (from July 2020 with lots of links to lots of prior rulings)

Discussing clemency activity by Prez Trump for six more weeks seems unavoidable, doesn't it?

As highlighted by this post from last week, I am generally much more interested in thinking about how Prez-elect Biden might reform the clemency process than about how Prez Trump might use the clemency power over his last six weeks in office.  But my news feed these days is overflowing with all sorts of reports and commentary about Prez Trump's possible pardon plans, so I suspect this will have to be an evergreen blog topic in the weeks ahead.

In reviewing some recent pieces, I really liked the last couple sentences in this short NPR commentary headlined "The Truth About Pardons" authored by Scott Simon: "It's sheer speculation as to what other pardons Trump might issue as he leaves office. But a president's personal power to pardon can change lives — and reveal what they value."  I sincere hope Prez Trump is eager to change some lives for the better in this coming weeks, though I will wait to see what Prez Trump does in the coming weeks before reflecting on what his clemency record suggests about his values.  Meanwhile, here are just a few of many other pieces on this topic to recently catch my eye:

From NPR, "In His Final Weeks, Trump Could Dole Out Many Pardons To Friends, Allies"

From Politico, "Trump mulls preemptive pardons for up to 20 allies, even as Republicans balk"

From Prof. Jeffrey Crouch, "Trump and Bill Clinton pardon scandals should help Biden fix a flawed process"

For the most substantial new reporting on this topic, I highly recommend this effective new Daily Beast piece by White House reporter Asawin Suebsaeng.  The piece is fully headlined "Inside the Frantic Push to Get Trump to Pardon…. Everyone: Allies, advocates, and Alice Johnson are on a mad dash to get the president to bestow clemency and ‘mercy’ before Biden takes over."  The full piece highlights how fully fraught these matters now are for so many, and here is a snippet:

For the past month, President Donald Trump’s political allies and friends, as well as various lawyers, have been rushing against the clock to convince him to fulfill a lengthy wish list of pardons and commutations before Joe Biden takes office in late January.  “We’ve been flooded with requests,” said a senior White House official, who added that a lot of the appeals have been nakedly political and partisan, as is expected at the end of a presidency....

But buried elsewhere in the vast clutter of requests and considerations are reams of documents sent by advocates to the White House counsel’s office requesting pardons or clemency for drug offenders and longtime federal inmates who grew up under harsh circumstances and have turned their lives around behind bars.  Behind the scenes, a loose coalition of unexpected allies are sprinting to get the president’s ear and put many of these cases before him and his White House lawyers.  Some are the president’s confidants, MAGA diehards, and Trump advisers.  Others are criminal justice reform advocates who’ve learned to love him. Others have long loathed him and his policies.

On Friday Nov. 20th, Alice Johnson, a criminal justice reform advocate whose life sentence was commuted by Trump two and a half years ago, visited the president for a 30-minute meeting, during which she outlined some of the cases she and her allies had already forwarded to the White House for vetting. “It was a very good meeting,” Johnson told The Daily Beast, publicly confirming the discussion for the first time.  “I went to the White House in order to present cases before the president in the Oval Office, for people I know are very deserving people… There are around 30 names that I’ve already sent to the White House counsel.  I talked about some of the individual cases during the meeting with President Trump, but also discussed them collectively, in the sense that they all have outstanding rehabilitation records and outstanding prison records, and none of them pose a danger to the public.”

Johnson said Trump asked questions and expressed concern and receptiveness.  She believes he supports issuing more clemencies this year.  “We are also in the process of vetting and compiling packets for at least 100 more incarcerated individuals,” she said.  “We are in warp speed right now, to get as many through as possible, as quickly as possible.”...

Reform advocate Jason Flom, a well-known record executive and a Democratic donor, said in an interview on Thursday, “This is one of the only issues where there’s some meaningful agreement between the left and the right.  And I’m hoping that because there are conservative groups advocating alongside other organizations for clemency that the president will grant a significant number of them before he leaves office.”

Kevin Ring, president of the nonprofit group Families Against Mandatory Minimums, said, “We’re encouraging everyone to seek clemency at this time.  We know that this time at the end of an administration is the time to do it… We know there are going to be grants that make people scratch their heads and wonder whether that’s the best use of President Trump’s clemency authority. But we hope that for every one of those, there are 10 or 20 grants for people who are serving excessive sentences and deserve to be home.”

A few recent related posts:

• Two different takes on Prez Trump's clemency record as his term nears conclusion
• Prez Trump grants pardon to Michael Flynn ... are a lot more to come?
• Lots of (surprising and unsurprising) clemency chatter ... and great advocacy for clemency change 
• "Presidential Pardons and the Problem of Impunity" 
• "The Legality of Presidential Self-Pardons" 

"Cruel & Unusual Non-Capital Punishments"

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

The Supreme Court has rendered the Eighth Amendment a dead letter with respect to non-capital, non-juvenile life-without-parole sentences.  Its cases have erected a gross disproportionality standard that seems insurmountable in most cases, even for draconian and excessive sentences.  State courts have adopted a similar approach in interpreting state constitutional Eighth Amendment analogues, often finding that they are no broader than the Court’s narrow interpretation of the Eighth Amendment, despite linguistic variations in many cases.

Nonetheless, in a handful of state cases, state courts have found that state punishments violate the Eighth Amendment or its state constitutional analogue.  This article examines those cases to identify what non-capital punishments have caused courts to limit state punishment practices even in the shadow of an overwhelming, albeit unfortunate, trend of according constitutional deference to state punishment practices.  In light of these decisions, this Article advances a series of possible arguments by which to attack state and federal punishment practices in an effort to create more exceptions to the draconian status quo constitutional rule.

In Part I, the Article begins by providing an overview of Eighth Amendment gross disproportionality doctrine and its use in state constitutional analogues to the Eighth Amendment.  Part II examines the handful of state court cases that have found punishments unconstitutionally disproportionate.  In Part III, the Article advances one set of arguments — both systemic and case-based — for use in attacking non-capital state punishments under state constitutions.  Part IV, the Article advances a second set of arguments — both systemic and case-based — for use in attacking non-capital state punishments under the Eighth Amendment.

Ramos, Tasmanian tigers and Teague, oh my: SCOTUS debates retroactivity of jury unanimity rule in Edwards oral argument

The Supreme Court often seems to have a Wizard-of-Oz like quality, especially now that we are all behind a COVID curtain, and so I could not resist an Ozian title for this post noting today's interesting oral argument in Edwards v. Vannoy.   At issue in Edwards is whether the Court’s decision last Term in Ramos v. Louisiana, holding that the Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts, applies retroactively to cases that have already become final on direct review.  This Bloomberg Law account of the argument, headlined "Justices Divided on Making Jury Unanimity Decision Retroactive," provides a great summary, and here are excerpts:

Supreme Court justices were divided during oral argument over whether their decision barring nonunanimous jury convictions last term applies retroactively.

Questions on Wednesday from Justices Neil Gorsuch, Sonia Sotomayor, and Stephen Breyer suggested all three may favor retroactivity, but the defendant, Thedrick Edwards, could have trouble attracting two more justices to join them. 

Chief Justice John Roberts and Justice Elena Kagan, both of whom could hold crucial votes, asked tough questions of both sides....  It’s unclear how the newest justice, Amy Coney Barrett, will vote.  She replaced the late Justice Ruth Bader Ginsburg, who voted with the majority in last term’s Ramos v. Louisiana.

Justices Samuel Alito, Clarence Thomas, and Brett Kavanaugh are likely votes against retroactivity.  Kavanaugh voted with the majority in Ramos, but said in a concurrence that he didn’t think the decision should apply retroactively....

Edwards, a Black man, was convicted in 2007 of armed robbery, kidnapping, and rape by a nonunanimous Louisiana jury and sentenced to life in prison.  The lone Black juror voted to acquit on all counts.  The states most recently to allow split verdicts were Louisiana and Oregon, which were found to have enacted their systems for discriminatory purposes.  Nonetheless, those states, Puerto Rico — which also had them — and the Justice Department are pressing the high court to keep intact the nonunanimous convictions that have already been upheld.  That would bar relief for Edwards and potentially over a thousand people like him who want to take advantage of Ramos even though they already exhausted their initial round of appeals.... 

Bélanger downplayed the notion that a ruling for Edwards would overload the system with new trials.  Prompted by questioning from Breyer, he said “we’re really looking at our estimates of maybe two to three cases per prosecutor.” He said “the system is more than capable of accommodating this type of caseload.”  Louisiana Solicitor General Elizabeth Murrill deemed that assessment unrealistic.  “You can’t just hand out cases to anybody who happens to be an assistant district attorney,” she said.  “I mean, some of those people actually enforce laws in city court and — or do — you know, they collect money from — they do civil cases.”

One way for decisions to apply retroactively is if they reaffirmed an old rule.  Gorsuch, the author of Ramos, expressed support for that idea, while Kagan called it a “steep climb” at the argument.  Another way the court could view the Sixth Amendment unanimity right from Ramos is as a newly-recognized criminal procedure rule, which generally wouldn’t apply retroactively.  But under the court’s 1989 ruling in Teague v. Lane, it can if it’s a “watershed” right implicating fundamental fairness and accuracy.

Yet the court has never expressly identified such a watershed right — it has indicated the right to counsel that predated Teague could be one — leading Gorsuch to wonder if the watershed test is a “false promise.”  Alito said it reminds him “of something you see on some TV shows about the — the quest for an animal that was thought to have become extinct, like the Tasmanian tiger, which was thought to have died out in a zoo in 1936, but every once in a while, deep in the forests of Tasmania, somebody sees a footprint in the mud or a howl in the night or some fleeting thing running by, and they say, a-ha, there still is one that exists.”

Both Kagan and Barrett pressed lawyers about what exactly accuracy means in the Teague analysis.  “I’m having trouble understanding what we’re measuring,” Barrett said. “Are we trying to ask whether juries wrongfully convicted someone because the majority saw the case in the wrong way and the — and the one dissenter in the jury or the two dissenters in the jury were right?”...

[T]hough she dissented in Ramos, Kagan seemed to struggle with whether defendants should benefit from it retroactively.  “I mean, Ramos says that if you haven’t been convicted by a unanimous jury, you really haven’t been convicted at all,” she told assistant to the U.S. solicitor general Christopher Michel, who supported Louisiana’s Murrill at the argument. “And so how could it be that a rule like that does not have retroactive effect?” she asked....

The court could also avoid the retroactivity issue entirely.  Some justices — at least Thomas, Alito, and Kavanaugh — expressed during the argument that habeas corpus restrictions could bar Edwards from relitigating the issue at all.

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

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

The Second Circuit back in September was the first circuit to rule in Zullo/Brooker, quite rightly in my view, that district courts have now broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" to justify a sentence reduction under 3582(c)(1)(A).  Then, on the same day last month, the Sixth Circuit in Jones and the Seventh Circuit in Gunn issued similar opinions recognizing that district court now have broad authority after the FIRST STEP Act to determine whether and when "extraordinary and compelling" reasons may justify a sentence reduction when an imprisoned person files a 3582(c)(1)(A) motion.  Now, today, the Fourth Circuit has become the fourth circuit to get into this act with a great panel opinion in US v. McCoy, No. 20-6821 (4th Cir. Dec. 2, 2020) (available here).  Here is how this opinion gets started:

The defendants in these consolidated appeals were convicted of robberies and accompanying firearms violations under 18 U.S.C. § 924(c). At the time, sentences under § 924(c) were “stacked,” which exposed the defendants to additional mandatory minimums and led to sentences ranging from 35 to 53 years of imprisonment. After the defendants’ convictions became final, Congress passed the First Step Act and ended sentence “stacking” under § 924(c). Today, the defendants’ sentences would be dramatically shorter – in most cases, by 30 years – than the ones they received.

At the same time it shortened sentences under § 924(c), the First Step Act significantly expanded access to compassionate release under 18 U.S.C. § 3582(c)(1)(A). Prior versions of § 3582(c)(1)(A), which empowers courts to reduce sentences for “extraordinary and compelling reasons,” had allowed review of sentences only at the request of the Bureau of Prisons (“BOP”). The First Step Act removed the BOP from that gatekeeping role, authorizing defendants themselves to file motions for sentence reductions.

Relying on both these First Step Act provisions, the defendants moved for reductions in their sentences under § 3582(c)(1)(A), resting their case for “extraordinary and compelling reasons” primarily on the length of their § 924(c) sentences and the disparity between their sentences and those that Congress deemed appropriate in the First Step Act. After considering each defendant’s individual circumstances – including their youth at the time of the offenses, their lack of significant prior criminal history, their exemplary behavior and rehabilitation in prison, and their already-substantial years of incarceration – the district courts granted the defendants’ motions and reduced their sentences to time served.

We now affirm the judgments of the district courts. As the government emphasizes on appeal, § 3582(c)(1)(A) prohibits sentence reductions that are not consistent with “applicable policy statements issued by the Sentencing Commission.” But contrary to the government’s argument, treating the defendants’ § 924(c) sentences as an “extraordinary and compelling” reason for release is not inconsistent with any “applicable policy statement” of the Sentencing Commission for the simple reason that the Commission has yet to issue a policy statement that applies to motions filed by defendants under the recently amended § 3582(c)(1)(A). Nor was it otherwise improper, we conclude, for the district courts to consider the First Step Act’s declaration of the appropriate level of punishment under § 924(c) in assessing the defendants’ cases, on an individualized basis, for compassionate release.

Like the other circuit opinions and many comparable district court opinions, this Fourth Circuit ruling is the real McCoy, and its closing paragraph provides a fitting summary of the sound work that district courts are doing in accord with the congressional guidance in the FIRST STEP Act:

We return to the Second Circuit’s description of the First Step Act and its amendment of § 3582(c)(1)(A): an “incremental” change that does not mandate more lenient sentences across the board but instead gives new discretion to the courts to consider leniency.  Zullo, 976 F.3d at 230.  The district courts in these cases appropriately exercised the discretion conferred by Congress and cabined by the statutory requirements of § 3582(c)(1)(A).  We see no error in their reliance on the length of the defendants’ sentences, and the dramatic degree to which they exceed what Congress now deems appropriate, in finding “extraordinary and compelling reasons” for potential sentence reductions. The courts took seriously the requirement that they conduct individualized inquiries, basing relief not only on the First Step Act’s change to sentencing law under § 924(c) but also on such factors as the defendants’ relative youth at the time of their offenses, their post-sentencing conduct and rehabilitation, and the very substantial terms of imprisonment they already served.  Those individualized determinations were neither inconsistent with any “applicable” Sentencing Commission guidance nor tantamount to wholesale retroactive application of the First Step Act’s amendments to § 924(c).

A few of many, many prior related posts:

• Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court?
• New District Court ruling confirms that "any extraordinary and compelling reasons" can now provide basis for reducing imprisonment under 3582(c)(1)(A)
• Another thoughtful and thorough opinion finds statutory reform among "extraordinary and compelling reasons" for reducing sentence under 3582(c)(1)(A) 
• A dozen new grants of federal sentence reductions using § 3582(c)(1)(A), including another based on stacking/disparity/trial penalty concerns 
• Second Circuit panel rules unanimously that district courts have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" 
• Sixth Circuit panel rules "courts have full discretion" to determine extraordinary and compelling reasons for 3582(c)(1)(A) motions
• Seventh Circuit panel says old guideline does not limit potential "extraordinary and compelling reasons" for 3582(c)(1)(A) motions after FIRST STEP Act 

Lots of (surprising and unsurprising) clemency chatter ... and great advocacy for clemency change

The lame-duck end of a presidential (or gubernatorial) term is often a time for lots of discussion of clemency possibilities.  And who follows this space surely sensibly expected that the Term of Prez Trump would wind down with plenty of clemency chatter.  But, as detailed via these recent headlines and links, the array of stories afoot are remarkable:

From Business Insider, "Joe Exotic's lawyer thinks he's 'very, very close' to getting a presidential pardon from Trump"

From the New York Times, "Trump Has Discussed With Advisers Pardons for His 3 Eldest Children and Giuliani"

From NPR, "Justice Department Investigating Possible Bribery-For-Pardon Scheme"

Though I might have "hot takes" about the latest clemency news, the recent piece most worth considering in this space comes from Emily Galvin-Almanza via The Appeal under the headline "Biden Must Fix The Broken Executive Clemency Process.  This Is Who He Should Select To Lead That Effort."  Here are excerpts:

[W]e must work at all levels to transform our criminal legal system.  But we can’t neglect powerful, fast tools like clemency.  We shouldn’t box clemency away as merely some form of mercy, when in fact it is something much more akin to a high-speed mechanism for undoing the worst impacts of bad, outdated policy and enforcement choices.  And yet, we have done exactly that: As [Rachel] Barkow has pointed out, we’ve taken this powerful tool and abandoned it in a dusty closet somewhere in the basement of the Department of Justice.  That’s where a brave new Administration must begin....

As you might expect, this choking process has left clemency in a state of crisis.  It is dysfunctional, available primarily to the powerful, and raises only false hopes for marginalized people. But we are standing, post-election, on the verge of tremendous change.  Looking to a Biden Administration that, at its core, has indicated a commitment to righting the wrongs of the past and looking for smarter, more human (and humane) solutions.  Clemency is a fantastic opportunity for such an administration: fixing clemency in a way that would spur transformative change doesn’t require congress, doesn’t require massive bureaucracy, and doesn’t require anything other than strong executive action–and an executive ready to leverage the unique depths of his own empathy.

The process is simple: first, the new President Joe Biden must move the clemency process out of DOJ and into the White House, and appoint someone with deep grounding in the topic–and bipartisan credibility–to lead a committee on clemency that would not only build a system to process individual applications faster, but create proactive tactics for finding ways to use the clemency power to undo the worst impacts of bad, carceral law–even for people who hadn’t been able to file for relief on their own.  Best of all, this idea isn’t particularly controversial: it was supported during the primary by everyone from Senators Amy Klobuchar to Bernie Sanders, it made it through the Biden-Sanders Unity Taskforce, and it was integrated into the 2020 Democratic Party platform.  For context, this makes it significantly less controversial than, say, legalizing marijuana — a policy many, many states are already enacting.

Rachel Barkow, of course, would be a very smart choice, as someone whose primary body of work has focused on building a better clemency system, and who has also been celebrated by advocates from across the political spectrum.  She’s not only a respected scholar and former clerk to the iconic Justice Scalia, she’s a national policy player who has been through Senate confirmation once already, joining the U.S. Sentencing Commission in 2013.  But importantly, her views aren’t limited to the ivory tower — she’s done the actual work of helping people apply for clemency: she and co-author Mark Osler started a “pop up” clemency clinic to help people apply for clemency in 2014....

Leading a team that would not just include but center the experiences of people who had lived through incarceration, and also reserve space for public defenders, civil rights lawyers, and progressive prosecutors who carry a more modern understanding of second chances than their old-school peers, Barkow could hand the President a mechanism for fostering liberty, opportunity and restoration out of the wreckage of our bloated system.  She could change the game by building a faster, smarter process.  For people who love comparisons, Barkow’s role in the clemency conversation is not dissimilar from the robust academic-yet-tactical power Senator Elizabeth Warren has brought to the conversation around the Consumer Financial Protection Bureau.  Tasking Barkow with bringing clemency into the White House would be a little like letting Sen. Warren supercharge the CFPB.

Instead of placing endless barriers between deserving, promising people and their chance to be heard, or allowing prosecutorial dinosaurs at DOJ to stand between ordinary people and opportunity, she and her committee could fast-track applications and give President Biden an opportunity to be a groundbreaking leader in this area.  They could seek out specific areas where we know sentences are too long and out of step with current enforcement priorities and find people who may not have had the capacity to file a petition, but whose sentence is wildly out of step with modern views. It would be especially beautiful to break down the legacy of 1994 — and 1990s punitive measures more generally — with this unique and deceptively simple action.

Seventh Circuit panel says old guideline does not limit potential "extraordinary and compelling reasons" for 3582(c)(1)(A) motions after FIRST STEP Act

Last night in this post, I noted the big compassionate release ruling from the Sixth Circuit in US v. Jones, 20-3701 (6th Cir. Nov. 20, 2020) (available here), which ruled that "the passage of the First Step Act rendered § 1B1.13 'inapplicable' to cases where an imprisoned person files a motion for compassionate release."  In other words, the Sixth Circuit held that district courts now have broad authority to determine what now qualifies as "extraordinary and compelling reasons" for a sentence reduction under the statutory provisions of 18 U.S.C. § 3582(c)(1)(A) despite the fact that a pre-FIRST STEP provision of the guidelines, § 1B1.13, might seem to limit that authority. 

Helpfully, a couple of readers made sure I did not miss another ruling from another circuit on the same topic that happened to be handed down the same day as Jones.  Specifically, a Seventh Circuit panel in US v. Gunn, No. 20-1959 (7th Cir. Nov. 20, 2020) (available here), had this (and more) to say on this topic:

Like the Second Circuit, see United States v. Brooker, 976 F.3d 228 (2d Cir. 2020), we disagree with this reading of the statute’s trailing paragraph.  It says that a reduction must be “consistent with” all “applicable” policy statements.  Section 1B1.13 addresses motions and determinations of the Director, not motions by prisoners.  In other words, the Sentencing Commission has not yet issued a policy statement “applicable” to Gunn’s request.  And because the Guidelines Manual lacks an applicable policy statement, the trailing paragraph of §3582(c)(1)(A) does not curtail a district judge’s discretion.  Any decision is “consistent with” a nonexistent policy statement.  “Consistent with” differs from “authorized by”.

The statute itself sets the standard: only “extraordinary and compelling reasons” justify the release of a prisoner who is outside the scope of §3582(c)(1)(A)(ii).  The substantive aspects of the Sentencing Commission’s analysis in §1B1.13 and its Application Notes provide a working definition of “extraordinary and compelling reasons”; a judge who strikes off on a different path risks an appellate holding that judicial discretion has been abused.  In this way the Commission’s analysis can guide discretion without being conclusive....

Like the district court, we hope that the Sentencing Commission’s ability to revise its guidelines and policy statements will be restored by the appointment of additional members.  Until that happens and §1B1.13 is amended, however, the Guidelines Manual lacks an “applicable” policy statement covering prisoner-initiated applications for compassionate release.  District judges must operate under the statutory criteria — “extraordinary and compelling reasons” — subject to deferential appellate review.

A few of many, many prior related posts:

• Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court?
• New District Court ruling confirms that "any extraordinary and compelling reasons" can now provide basis for reducing imprisonment under 3582(c)(1)(A)
• Another thoughtful and thorough opinion finds statutory reform among "extraordinary and compelling reasons" for reducing sentence under 3582(c)(1)(A) 
• A dozen new grants of federal sentence reductions using § 3582(c)(1)(A), including another based on stacking/disparity/trial penalty concerns 
• Second Circuit panel rules unanimously that district courts have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" 
• Sixth Circuit panel rules "courts have full discretion" to determine extraordinary and compelling reasons for 3582(c)(1)(A) motions

Sixth Circuit panel rules "courts have full discretion" to determine extraordinary and compelling reasons for 3582(c)(1)(A) motions

I only today saw a big notable Sixth Circuit ruling from a few weeks ago discussing the reach and application of the compassionate release provisions amended by the federal FIRST STEP Act.  As regular readers know, in lots of (pre-COVID) prior posts, I made much of the provision of the FIRST STEP Act allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  The SIxth Circuit's recent ruling in US v. Jones, 20-3701 (6th Cir. Nov. 20, 2020) (available here), constitutes the second big circuit decision ruling that district courts have broad discretion to determine what now qualifies as "extraordinary and compelling reasons" for a sentence reduction.

The first significant circuit ruling on the reach and application of § 3582(c)(1)(A) came from the Second Circuit in US v. Zullo/Brooker, No. 19-3218-CR (2d Cir. Sept. 25, 2020) (available here; discussed here).  This latest circuit ruling from the Sixth Circuit in Jones folllows the same path by providing a thoughtful and thorough accounting of the history of applicable law on the way to these important statements: 

We now join the majority of district courts and the Second Circuit in holding that the passage of the First Step Act rendered § 1B1.13 “inapplicable” to cases where an imprisoned person files a motion for compassionate release.  See United States v. Brooker, 976 F.3d 228, 234 (2d Cir. 2020).  Until the Sentencing Commission updates § 1B1.13 to reflect the First Step Act, district courts have full discretion in the interim to determine whether an “extraordinary and compelling” reason justifies compassionate release when an imprisoned person files a § 3582(c)(1)(A) motion....

By following the Second Circuit’s lead, we weave together three compatible aspirations: preserving as much of § 1B1.13 that can be saved, adhering to Congress’s intent, and respecting the Sentencing Commission’s thoughtful authorship of § 1B1.13’s commentary.  In cases where incarcerated persons file motions for compassionate release, federal judges may skip step two of the § 3582(c)(1)(A) inquiry and have full discretion to define “extraordinary and compelling” without consulting the policy statement § 1B1.13.  Thus, the district judge in Jones’s case permissibly assumed for the sake of argument that extraordinary and compelling circumstances existed without reference to the policy statement § 1B1.13.

There is a lot more in the Sixth Circuit ruling in Jones worth checking out, but most consequential is this clear statement that district courts are not limited by the (now-dated, pre-FIRST-STEP-Act) language of § 1B1.13 when assessing what may qualifies as "extraordinary and compelling reasons" for a sentence reduction.  I believe a few other circuits are considering this issue now, and it will be interesting to see if any more rule of this matter before we get tho the two-year anniversary of the FIRST STEP Act later this month.

A few of many, many prior related posts:

• Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court?
• New District Court ruling confirms that "any extraordinary and compelling reasons" can now provide basis for reducing imprisonment under 3582(c)(1)(A)
• Another thoughtful and thorough opinion finds statutory reform among "extraordinary and compelling reasons" for reducing sentence under 3582(c)(1)(A) 
• A dozen new grants of federal sentence reductions using § 3582(c)(1)(A), including another based on stacking/disparity/trial penalty concerns 
• Second Circuit panel rules unanimously that district courts have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" 

Seventh Circuit panel upholds 140-year with parole state sentence for 15-year-old offender

Via How Appealing, I just saw an interesting new opinion from the Seventh Circuit in Sanders v. Eckstein, No. 2:11‐cv‐868 (7th Cir. Nov. 30, 2020) (available here).  The start of the opinion explains why I describe the matter as interesting:

Rico Sanders received a 140‐year sentence for raping four women.  He was 15 at the time of the sexual assaults, and his offense conduct was heinous and cruel in the extreme.  Now 40 years old, Sanders will first be‐ come eligible for parole under Wisconsin law in 2030.  He sought post‐conviction relief in state court, arguing that Wisconsin’s precluding him from any meaningful opportunity of parole before 2030 offends the Supreme Court’s holding in Graham v. Florida, 560 U.S. 48 (2010).  Sanders later added a claim that the sentencing court’s failure to meaningfully con‐ sider his youth and prospect of rehabilitation when imposing the 140‐year sentence runs afoul Miller v. Alabama, 567 U.S. 460 (2012). After the Wisconsin courts rejected these claims, Sanders invoked 28 U.S.C. § 2254 and sought relief in federal court.  The district court denied the application, and we now affirm.

Here is a part of the unanimous panel's substantive analysis:

The Wisconsin Court of Appeals determined Sanders’s chance of parole at age 51 — twelve years before his expected end of life at 63 — respects Graham’s requirement of a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” 560 U.S. at 75.  Nothing about that conclusion reflects an unreasonable application of Graham.  In time the Supreme Court may give more definition to what constitutes a “meaningful opportunity” for early release.  For now, however, the Wisconsin court’s conclusion that Sanders will have his first chance at parole at the age of 51 is by no means unreasonable.

Can Kim Kardashian help stop next week's scheduled federal execution?

The question in the title of this post is prompted by this Los Angeles Times piece headlined "Kim Kardashian West flexes her prison-reform muscle, taking on death-penalty case." Here are excerpts:

Kim Kardashian West is flexing her criminal justice reform muscles for perhaps the last time before President Trump leaves office, asking that the sentence of federal death-row inmate Brandon Bernard be commuted to life in prison without parole before Bernard’s Dec. 10 execution date.

Bernard was sentenced to death in 2000 for the murder of Stacie Bagley, who was killed with her husband after a carjacking and robbery in June 1999 left them locked in the trunk of their car, which was set on fire after both victims were shot. Todd Bagley died from the gunshot, but Stacie died in the fire, which was set by Bernard. The murders took place on Ft. Hood military land in Texas, making it a federal case.

“First, I want to say that a terrible crime was committed and me fighting for a stay of execution does not take away from the sympathy I have for the victim’s Todd and Stacie Bagley, and their families. My heart breaks for everyone involved,” the reality TV star and beauty mogul wrote Sunday in a series of tweets.

Kardashian West first revealed her interest in criminal-justice reform in 2018, when she and others successfully lobbied President Trump to pardon Alice Marie Johnson, who had served 22 years of a life sentence for a nonviolent drug offense. Since then, she has started studying law and has stepped up on behalf of numerous other convicts. In April, she released “Kim Kardashian West: The Justice Project,” a documentary on Oxygen.

“While Brandon did participate in this crime, his role was minor compared to that of the other teens involved, two of whom are home from prison now,” Kardashian West continued Sunday on Twitter.

The fourth man involved in the crimes, Christopher Andre Vialva, was executed Sept. 24 after being sentenced to death on three of the four charges he faced and life in prison on the other. Bernard also received life sentences on three of the four counts, which included committing or aiding and abetting carjacking and conspiracy to commit murder.

Kardashian West tweeted that Bernard wasn’t involved in the initial carjacking and was “stunned” when the Iowa youth ministers were shot. He feared for his own life, she said, when he sprayed lighter fluid into the car and set it on fire to destroy the evidence.

The 40-year-old mother of four cited a recent article written by the prosecutor who defended Bernard’s death sentence on appeal but now believes that sentence should be tossed. She also posted videos from two of the five jurors who — out of the nine jurors still alive — now regret their vote for the death sentence two decades ago. None of those people, however, doubts Bernard’s guilt.

“At trial Brandon’s attorney fell short by not hiring any experts who could have explained to the jury why Brandon decided to leave the video game store that night or how he had grown up in an abusive home, or how his homeless father had left him searching for protection in the streets,” Kardashian West tweeted. “His trial attorney also failed to tell the jury how remorseful he was or anything about his background. We now know this testimony would have spared his life.”...

Bernard, who was convicted of the same four charges Vialva was, got the death sentence for Stacie Bagley’s killing. He was 18 at the time of the murders and, like Vialva, a gang member, according to court documents.

It might seem silly to think a reality TV star like Kim Kardashian West would have sway with the President of the United States.  But, of course, the current President is himself a reality TV star, and he has been greatly influenced by Kimme in the past to reduce the severity of some federal sentences.  I would be quite surprised if she can convince Prez Trump to halt an execution, but I supposed I have learned the last four years to put nothing past this President.

A few prior related posts:

• As Kim Kardashian heads to White House, I hope she advocates for many federal offenders excessively sentenced 
• Kimme’s accomplishment: Prez Trump commutes LWOP sentence of Alice Johnson!!
• "Kim Kardashian West pushes White House for more drug sentence commutations"
• Can Kimme bring "REAL systemic change" to the clemency process?  She is with all the right folks at the White House.
• "Searching for A Kardashian: Kim helped get clemency for Alice Johnson, who will help me?"
• Keeping up with (soon to be counselor?) Kim Kardashian West and her important role in sentencing reform
• Prez Trump has another meeting about criminal justice reform with Kim Kardashian West and women who have recently received clemency 

Prez Trump grants pardon to Michael Flynn ... are a lot more to come?

As reported here by NPR, "President Trump has pardoned his first national security adviser, Michael Flynn, who spent years enmeshed in an often bizarre legal war with the government that sprang from the Russia investigation."  Here is more about an unsuprising act of clemency:

Trump announced the news on Twitter as Americans prepared to observe the Thanksgiving holiday this week.

The pardon brings an end to a long-running legal odyssey for Flynn, who was the only member of the Trump administration to be charged as part of special counsel Robert Mueller's Russia investigation.

Flynn pleaded guilty in 2017 to lying to the FBI about his contacts with the Russian ambassador, and then cooperated extensively with prosecutors. But he ultimately reversed course and accused the government of trying to frame him. Flynn went to so far as to withdraw his first plea of guilty and substitute a second plea of not guilty, even though he'd acknowledged the underlying conduct that was against the law and been close to receiving a sentence.

The pardon drew condemnations from critics who've said Trump's actions to help his friends interfere with the justice system. House Intelligence Committee Chairman Adam Schiff, D-Calif., for example, who helped prosecute Trump at his impeachment, called the president's actions obviously corrupt.

Flynn, meanwhile, reacted on Twitter with a Bible verse alluding to a holy rescue.

Trump's action on Wednesday may open the door to possible clemency for other former Trump advisers who were indicted as part of the Russia investigation, including former campaign chairman Paul Manafort.

Meanwhile, this New York Times article, headlined "White House Weighs Pardon Blitz Before Trump’s Exit," highlights that I might have a lot of Trumpian clemency action to blog about in the coming weeks.  Here is how the piece gets started and some additional excerpts:

It’s not just Michael T. Flynn. The White House is weighing a wave of pardons and commutations by President Trump in his final weeks in office, prompting jockeying by a range of clemency seekers and their representatives, including more allies of Mr. Trump.

Among those hoping for pardons are two former Trump campaign advisers, Rick Gates and George Papadopoulos, who like Mr. Flynn, the former national security adviser who was pardoned on Wednesday by Mr. Trump, were convicted in cases stemming from the special counsel’s Russia investigation.

Alan Dershowitz, the law professor who represented Mr. Trump during his impeachment trial, is considering seeking clemency for two of his clients — a New Jersey man serving more than 20 years for defrauding investors, and a billionaire businessman convicted in what’s been called “one of North Carolina’s worst government corruption scandals.” Mr. Dershowitz said he recently discussed the pardon process with the White House.

But it is not just the well-connected and wealthy who could benefit from one of Mr. Trump’s final exercises of executive power, lawyers in contact with the administration said. Several groups that have pushed for a criminal justice overhaul are working with an ad hoc White House team under the direction of Jared Kushner, Mr. Trump’s son-in-law and adviser, with a goal of announcing as many as hundreds of commutations for offenders now in jail for crimes ranging from nonviolent drug convictions to mail fraud and money laundering.

“Lists of people are being circulated,” said Brandon Sample, a Vermont lawyer who specializes in presidential pardons and has submitted several names of people to be considered. Among them is Russell Bradley Marks, 57, who has been imprisoned after pleading guilty in 1992 on a cocaine-related conviction for which he was given a mandatory life sentence....

Lawyers say the White House is also focused on ways to use presidential clemency powers to further burnish Mr. Trump’s role in what is considered the most consequential criminal justice legislation in a generation, which reduced sentences for nonviolent offenders. A blitz of late pardons or commutations for federal crimes — over which presidents have unchecked power — is seen by some criminal justice reform activists as another way to build his record on that issue....

The planned clemency initiative, and the lobbying that has unfolded around it, has been hindered in some ways in recent weeks by Mr. Trump’s refusal to formally concede his loss to President-elect Joseph R. Biden Jr.

Potential pardon seekers and their representatives said in interviews that they were waiting to escalate their appeals until Mr. Trump conceded, or at least signaled that he had started to come to grips with the looming end of his presidency. Appealing for clemency before then, people involved warn, risks backfiring, because it could be seen as acknowledging a defeat that Mr. Trump has thus far refused to accept....

The effort to create a White House commutation program separate from the formal Justice Department office started last year after the 2018 passage of the First Step Act, which expanded an early release program and modified sentencing laws, including mandatory minimum sentences for nonviolent drug offenders. There are at least 13,700 people who have formally applied to the Justice Department for pardons that are listed as “pending.”

Representatives of inmates seeking sentence reductions have separately been sending the White House lists of names, typically focusing on people who received unusually long sentences for nonviolent crimes after declining to accept a plea agreement and others serving long sentences because of mandatory guidelines. “Each of these are sad, sad situations,” said Norman Reimer, the executive director of the National Association of Criminal Defense Lawyers. “They show massive injustice and over- sentencing, and we hope he will act on them.”