Sentencing Law and Policy

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

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

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

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

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

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

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

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

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

A few many prior recent related posts:

• First Circuit panel reverses death sentence of Boston Marathon bomber Dzhokhar Tsarnaev
• Unsurprisingly, victims of Boston Marathon bomber differ on seeking a new death sentence for Dzhokhar Tsarnaev after reversal on appeal  
• AG Barr says, unsurprisingly, that feds will appeal reversal of Boston Marathon bomber's death sentence
• Feds officially seek SCOTUS certiorari to review First Circuit's reversal of Boston Marathon bombers death sentence 
• SCOTUS grants cert to review First Circuit's reversal of death sentence of Boston Marathon bomber Dzhokhar Tsarnaev 
• Justice Department files SCOTUS brief seeking to restore death sentence for Boston Marathon bomber Dzhokhar Tsarnaev 
• Might any Justices be intrigued by notion that Eighth Amendment originalism makes the Boston Marathon bomber's death sentence suspect? 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Ring and Hurst Retroactivity: Deconstructing Divergent Doctrines"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few prior recent related posts:

• An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration
• New efforts to fix the ugly old problem of sentencing disparity for federal crack and powder cocaine offenses 
• Small, and not quite steady, reform progress in a not quite new era for criminal justice reform 
• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• US Senate Judiciary Committee hearing set for "Examining Federal Sentencing for Crack and Powder Cocaine" 
• House Judiciary Committee votes 36 to 5 to advance the EQUAL Act to reduce federal crack sentences

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

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

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

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

A few of many prior related posts:

• US Sentencing Commission releases fascinating (and bare bones) "Compassionate Release Data Report" 
• US Sentencing Commission releases more detailed "Compassionate Release Data Report" for 2020 
• More good coverage of the not-so-good (but still not-so-bad) realities of federal compassionate release realities
• Notable data on BOP resistance to compassionate release requests from federal prisoners
• "How Compassionate? Political Appointments and District Court Judge Responses to Compassionate Release during COVID-19" 
• Tangible example of continuing big sentence reductions in COVID era thanks to the FIRST STEP Act 
• Spotlighting remarkable (but still cursory) data on "compassionate release" after FIRST STEP Act 
• Notable new review and accounting of COVID and federal compassionate release results 
• Another dive into the ugly BOP realities of federal compassionate release during the pandemic

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

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

Louisiana v. Hill, No.20-1587

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

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

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

Jackson v. Hudson, No. 21-347

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

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

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

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

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

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

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

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

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

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

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

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

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

Panelists:

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

Moderator:

Douglas Berman, executive director, Drug Enforcement and Policy Center

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

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

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

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

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

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

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

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

Some of many prior related posts:

• Notable OLC opinion on "Home Confinement of Federal Prisoners After the COVID-19 Emergency" 
• Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption
• Effective review of (just some) issues surrounding home confinement for the Biden Justice Department
• Notably advocacy for Prez Biden to use his clemency power to ensure those released into home confinement need not return to prison 
• Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?
• Hoping grandmothers and others on home confinement get compassionate consideration
• Home confinement cohort at risk of being returned to federal prison garnering still more attention (but still little action) 
• Advocacy groups argue to DOJ that OLC home confinement memo is "incorrect" and should be rescinded 
• Senators Durbin and Booker write to Prez Biden requesting "immediate action" to prevent home confinement cohort from facing return to prison 
• Prez Biden reportedly considering, for home confinement cohort, clemency only for "nonviolent drug offenders with less than four years" left on sentence 
• Action beginning on Biden clemency plan for some drug offenders in CARES home confinement cohort 
• Sending a better clemency message while shooting the messenger

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

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

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

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

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

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

Sending a better clemency message while shooting the messenger

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

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

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

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

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

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

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

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

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

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

Some of many prior related posts:

• Notable OLC opinion on "Home Confinement of Federal Prisoners After the COVID-19 Emergency" 
• Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption
• Effective review of (just some) issues surrounding home confinement for the Biden Justice Department
• FAMM urges AG Garland to prevent those on home confinement during pandemic from being returning to federal prison 
• Notably advocacy for Prez Biden to use his clemency power to ensure those released into home confinement need not return to prison 
• Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?
• Hoping grandmothers and others on home confinement get compassionate consideration
• New York Times reporting Biden Justice Department agrees with OLC memo stating prisoners transferred to home confinement must return to prison after pandemic ends
• Home confinement cohort at risk of being returned to federal prison garnering still more attention (but still little action) 
• Advocacy groups argue to DOJ that OLC home confinement memo is "incorrect" and should be rescinded 
• Senators Durbin and Booker write to Prez Biden requesting "immediate action" to prevent home confinement cohort from facing return to prison 
• Still more attention (and some helpful action) for the home confinement cohort
• Prez Biden reportedly considering, for home confinement cohort, clemency only for "nonviolent drug offenders with less than four years" left on sentence 
• Action beginning on Biden clemency plan for some drug offenders in CARES home confinement cohort 

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

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

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

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

Supplementing the Pardon Power: Second Looks and Second Chances

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

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

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

Panelists:

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

Moderator:

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

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

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

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

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

Judge Colloton's extended dissent gets started this way:

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

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

"COVID-19 Relief and the Ordinary Inmate"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Panelists:

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

Moderator:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Interesting times.

Some of many prior related posts:

• Notable OLC opinion on "Home Confinement of Federal Prisoners After the COVID-19 Emergency" 
• Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption
• Effective review of (just some) issues surrounding home confinement for the Biden Justice Department
• FAMM urges AG Garland to prevent those on home confinement during pandemic from being returning to federal prison 
• Notably advocacy for Prez Biden to use his clemency power to ensure those released into home confinement need not return to prison 
• Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?
• Hoping grandmothers and others on home confinement get compassionate consideration
• New York Times reporting Biden Justice Department agrees with OLC memo stating prisoners transferred to home confinement must return to prison after pandemic ends
• Home confinement cohort at risk of being returned to federal prison garnering still more attention (but still little action) 
• Advocacy groups argue to DOJ that OLC home confinement memo is "incorrect" and should be rescinded 
• Senators Durbin and Booker write to Prez Biden requesting "immediate action" to prevent home confinement cohort from facing return to prison 
• Still more attention (and some helpful action) for the home confinement cohort
• Prez Biden reportedly considering, for home confinement cohort, clemency only for "nonviolent drug offenders with less than four years" left on sentence 

"Expanding Compassion Beyond the COVID-19 Pandemic"

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

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

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

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

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

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

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

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

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

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

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

SCOTUS stays Texas execution and grants cert on death row inmate's request for pastor's touch during execution

Texas was scheduled to execute John Ramirez this evening, but the Supreme Court blocked the effort as reported here at SCOTUSblog:

The Supreme Court agreed to postpone the execution of John Ramirez, who was scheduled to die on Wednesday night in Texas.  The last-minute respite will allow the justices to fully consider Ramirez’s request that his pastor be allowed to physically touch Ramirez and audibly pray in the execution chamber while Ramirez is put to death.

Ramirez’s emergency application was the latest in a series of shadow-docket requests in the past two years involving spiritual advisers at executions. But the justices are now poised to weigh in more definitively on the rights of inmates to have spiritual advisers at their side in their final moments: In the brief order putting Ramirez’s execution on hold, the court agreed to hear Ramirez’s appeal on its regular docket this fall.

Ramirez, who was sentenced to death for the 2004 murder of convenience-store clerk Pablo Castro, asked to have his Baptist pastor, Dana Moore, put his hands on Ramirez’s body and pray out loud as Ramirez is executed.  After Texas refused to grant that request, Ramirez went to federal court in August.  The district court rejected Ramirez’s bid to postpone his execution last week, and the U.S. Court of Appeals for the 5th Circuit turned down his plea to intervene.

The four cases that have previously reached the court centered on whether spiritual advisers could be present in the execution chamber at all....  Ramirez’s case involved a slightly different issue: what kind of aid a spiritual adviser can (and cannot) provide during an execution.  Ramirez came to the Supreme Court on Tuesday, asking the justices to put his execution on hold and to review his case on the merits.  He stressed that his filing was not a last-minute effort to delay his execution, because he had first raised the spiritual-adviser question over a year ago.  The state’s refusal to allow Moore to touch him and pray out loud, Ramirez argued, violates both his constitutional rights and the federal law guaranteeing religious rights for inmates.  Under the Texas policy, Ramirez emphasized in his reply brief on Wednesday, the execution chamber would be “a godless vacuum,” with Moore “no different from a potted plant.”...

In an order issued shortly before 10 p.m. EDT, the justices agreed to stay Ramirez’s execution and to hear his appeal on the merits. The court indicated that the case should be fast-tracked, with oral argument set for either October or November. There were no public dissents from Wednesday’s order.

"If Democrats don't think Robert Kennedy’s assassin deserves parole, do they really support criminal justice reform?"

The question in the title of this post is the subtitle of this new MSNBC commentary authored by Chris Geidner.  The main headline is "California may parole Robert Kennedy's assassin. Liberals aren't happy."  Here are excerpts:

Sirhan Sirhan, who was convicted of murdering Robert F. Kennedy 53 years ago, has been recommended for release by the California Board of Parole Hearings.  But, in a misguided effort that serves to reinforce the harsh practices that led to our incarceration explosion, some Democrats are fighting against the 77-year-old’s release. In doing so, they’re helping fuel the tough-on-crime rhetoric most often voiced these days by Republicans.

Sirhan was originally sentenced to death for murdering the presidential candidate and former attorney general as he campaigned in Los Angeles, but in 1972 his sentence was commuted to life in prison with the possibility of parole.

Sirhan has been denied parole 15 times — most recently in 2016. But on Aug. 27, the California parole board recommended his release.  After that recommendation, we quickly were reminded that the assassination from 53 years ago remains a present and painful memory to many Americans. It also became clear that some Democrats and progressives are willing to make exceptions to the criminal justice reforms they’ve claimed to support.

“I can’t pretend to know what’s going on in people’s minds,” Sirhan’s lawyer, Angela Berry, told me after the parole board’s recommendation.  “I think that wound is just so strong for people. They just can’t see that the board followed the law.”

That “they” includes opportunistic, “tough on crime” conservatives — but also liberal and progressive Democrats. “The news of Sirhan’s potential release hit me hard this weekend,” filmmaker Michael Moore wrote. “No, this assassin must not be set free.”

Few have voiced their opposition as loudly as Harvard Law School Professor Emeritus Laurence Tribe.  A longtime prominent liberal voice, Tribe has been on a nonstop campaign to stop Sirhan’s parole. Before the parole panel even met — with no apparent investigation, let alone evidence — Tribe, referring to Sirhan, wrote on Twitter, “Even at 77, he could be a threat.”...

Sirhan has been eligible for parole for several decades.  “The law presumes release unless the person poses a current unreasonable risk to the public,” Berry said.  “There wasn’t one iota of evidence to suggest this man is still dangerous.” The documents Sirhan submitted to the parole board included evidence from the state’s own experts that Sirhan “represents a Low risk for violence” and noted that his current age qualifies him for “elderly prisoner consideration” and the age at which he committed his crime means he should be treated as a “youthful offender.”...

Our system has become extremely carceral, but in 1972, when Sirhan was sentenced to life with the possibility of parole, the idea that someone would serve more than 50 years in prison was way outside the norm.  As his submission to the parole board noted, “The proscribed punishment for first degree murder in 1968 was life with parole eligibility after 7 years.”  Throughout the country, we've not only increased sentences exponentially since then, but we've also decreased the use and availability of parole and clemency and deemed more activities criminal.

Democratic opposition to letting California’s parole system work as intended is a problem for a party that claims to support criminal justice reform.  Reformers in both parties have set goals to end over-sentencing, expand the use of clemency and parole and end overcriminalization.  But when Tribe, and even the Kennedys, speak in opposition to Sirhan’s parole, opponents of reform hear their “tough on crime” refrains being justified....

After initially arguing against Sirhan’s release, Moore wrote that his sister, a public defender, persuaded him to think more deeply about his position.  “If the Governor decides to let him go, I will try to find my peace with that,” Moore wrote.  “While offering my love to Kennedy’s family. And recommitting myself to the efforts of bringing about a more just system.”

A more just system means so many things, but, specifically here, it means letting parole work, and it means understanding that turning prisons into nursing homes for people who were practically children when they committed crimes is not only a financial mistake, it misunderstands our knowledge that people change and that older people overwhelmingly do not commit crimes.

Prior related posts:

• Notably high-profile cases now the focus of parole decision-making 
• RFK killer. Sirhan Sirhan, recommended for parole after decades of denials 

Realizing that Prez Biden is now officially behind Prez Trump's clemency pace

Gearing up for this awesome series of panels later this month on "The Future of the President’s Pardon Power: 2021 Clemency Panel Series," and particularly thinking about Prez Trump's record for this first panel on "Donald Trump’s Theatre of Pardoning," it dawned on me that it was around this time in 2017 that Prez Trump issued his very first clemency grant.  Specifically, as noted in this post, on August 25, 2017, President Donald Trump pardoned former Maricopa County Sheriff Joe Arpaio.  

Fast forward four years, and we are now into September of the first year with President Biden in the oval Office and he has not yet used his clemency pen one single time.  Being behind Prez Trump's unimpressive pace is especially troubling given that candidate Joe Biden promised to "broadly use his clemency power for certain non-violent and drug crimes" and there is an on-going pandemic that continues to harmfully impact a (now growing) federal prison population as well as thousands of low-risk offenders released to home confinement facing possible return to prison. 

I have highlighted in a number of prior posts how disappointing the Biden Administration's criminal justice record has been so far.  But his clemency record (or lack thereof) represents the most tangible and worrisome example of this Administration's apparent affinity for the (broken) political and legal status quo on various federal criminal justice matters.

A few of many prior related posts:

• "Donald Trump’s Theatre of Pardoning: What Did We Learn?" 
• ACLU urging Prez Biden to "use his clemency powers to bring home 25,000 people" from federal prisons 
• Notably advocacy for Prez Biden to use his clemency power to ensure those released into home confinement need not return to prison 
• Uninspired comments and plans emerging from Biden White House concerning clemency vision
• "When Will Joe Biden Start Using His Clemency Powers?" 
• New Federal Sentencing Reporter issue considers "After Trump: The Future of the President’s Pardon Power"

Might SCOTUS be interested in taking up victim rights issues surrounding the Jeffrey Epstein case?

I find it somewhat surprising that the US Supreme Court has not yet ever taken up any cases dealing with the Crime Victims' Rights Act (CVRA), the 2004 legislation which significantly expanded the statutory rights of federal crime victims and creates duties on federal courts to ensure these rights are respected.  But, as highlighted by this new Politico article, headlined "Jeffrey Epstein accuser asks Supreme Court to uphold victims' rights," a high-profile case now provides them with a remarkable new opportunity to take up CVRA issues.  Here are the basics:

A woman who accused Jeffrey Epstein of sexually abusing her beginning when she was 14 is asking the Supreme Court to rule that federal prosecutors violated her rights by failing to consult her before cutting what critics have dubbed a sweetheart deal with the since-deceased financier and philanthropist.

The so-called nonprosecution agreement precluded U.S. authorities in south Florida from bringing federal charges against Epstein, despite similar allegations from dozens of women, if Epstein pleaded guilty to two state felonies related to soliciting a minor for sex.

Lawyers for Courtney Wild are asking the justices to overturn an appeals court ruling from June that held that Wild could not use a civil suit to enforce her rights under the Crime Victims’ Rights Act, a law Congress passed in 2004 to guarantee victims of crime certain protections in the federal criminal justice system.

The 7-4 ruling from the full bench of the 11th U.S. Circuit Court of Appeals called the government’s actions in the case “shameful,” but concluded that while the statute gives victims rights to jump into federal criminal proceedings, it doesn’t allow them to sue when no such case was ever filed.

“The en banc decision leaves the Government free to negotiate secret, pre-indictment non-prosecution agreements without informing crime victims,” attorneys Paul Cassell, Brad Edwards and Jay Howell wrote in the high court filing.

Over at The Volokh Conspiracy, Paul Cassell yesterday had this lengthy post about his new cert petition under this full headline: "Was it Lawful for the Justice Department to Reach a Secret Non-Prosecution Agreement with Jeffrey Epstein Without Telling His Victims?: My cert petition to the U.S. Supreme Court asks it review the Eleventh Circuit en banc's decision concluding that Epstein's victims cannot enforce their right to confer with prosecutors under the Crime Victims' Rights Act because the Department never formally filed charges against Epstein." Here is how his post gets started (with links from the original):

Today I filed a cert petition with the U.S. Supreme Court, asking it to review whether crime victims can enforce their rights under the Crime Victims' Rights Act (CVRA) before prosecutors file charges.  The petition, filed by one of the nation's leading crime victims' attorneys, Bradley J. Edwards, and me on behalf of one of Epstein's victims — Courtney Wild — seeks review of a 7-4 en banc decision from the Eleventh Circuit.  The Circuit held that the CVRA is only triggered when prosecutors file federal charges. Before then, according to the Eleventh Circuit, prosecutors are free to conceal from victims any deal that they may strike with the target of a federal investigation — as they did in the Epstein case.  This issue has sweeping implications for the proper enforcement of the CVRA, and we hope that the Court grants Ms. Wild's petition to review this very important legal question.

Might any Justices be intrigued by notion that Eighth Amendment originalism makes the Boston Marathon bomber's death sentence suspect?

I have always been intrigued by writings by Michael J.Z. Mannheimer making originalist claims about the Eighth Amendment as a unique and distinctive limit on federal punishments.  As he explains in "Cruel and Unusual Federal Punishments," the framers and ratifiers of the Eighth Amendment were particularly concerned about an oppressive federal government imposing  excessive punishments, and so they expected that "state law should be the benchmark for determining whether a federal punishment is 'cruel and unusual'."  Particularly because many federal  criminal laws and sentencing provisions are now particularly harsh when compared to state benchmarks — think many federal drug and gun mandatory minimums — Mannheimer's approach to the Eighth Amendment could have considerable modern purchase.  And, since this idea seems firmly grounded in originalism, one might hope that serious originalists might at least consider this idea when considering a notable federal punishment.

These matters are on my mind today because Professor Mannheimer just filed this interesting amicus brief in  US v. Tsarnaev, which just happens to involve a notable federal punishment for a notable criminal defendant.  Here is part of the brief's summary of argument:

In 1783, faced with a request by the Articles of Confederation Congress for unanimous consent by the States to implement a new impost on goods, Massachusetts assented.  But it did so only with conditions.  One condition was that, in enforcing the proposed impost within Massachusetts, the central government must not impose upon a violator of the impost law any “punishments which are either cruel or unusual in this Commonwealth.”  Georgia, New Hampshire, and South Carolina set the same condition, substituting “State” for “Commonwealth.”  Thus, a scant six years before the Bill of Rights was proposed by Congress and submitted to the States, we see a precursor to the Eighth Amendment in these state impost ratifications, which used language nearly identical to that which would appear in the Eighth Amendment.  And that language was State-specific; the measure of what punishments qualified as “cruel or unusual” was to be determined on a State-by-State basis, according to what qualified as “cruel or unusual” punishment in each State.

When the Eighth Amendment was drafted only a few years later, the State-specific understanding of this phrase remained. Coupled with the word “cruel,” unusual meant “harsher than is permitted by the law of long usage and custom,” i.e., the common law. And, of course, the common law differed in each State. More importantly, the framers and ratifiers of the Eighth Amendment understood that the common law differed by State.

This State-specific understanding of the term “cruel and unusual punishments” follows directly from the goals of the Anti-Federalists in demanding a bill of rights. The Anti-Federalists initially opposed ratification of the Constitution because they feared that the outsized power of the proposed new federal government would lead to both the annihilation of the States as sovereign entities and the destruction of individual rights. These two fears were intertwined: If the new central government were to create a parallel and plenary system of laws, it would render the States irrelevant and permit the central government to sidestep the common-law rights Americans had fought and died for only a few years before. These common-law rights had been enshrined in state constitutions and laws, but because the proposed federal government would be acting on the citizens directly, it would not be bound to observe those rights.

The Anti-Federalists’ solution was to constrain the new federal government in the same ways that the States constrained themselves. This meant, in some instances, calibrating federal rights to state norms, thereby preserving state power and individual rights simultaneously by retaining the primacy of the States in protecting common-law rights.  This is how the Cruel and Unusual Punishments Clause was to operate, protecting the common-law right against punishments unknown to the law by positing state law as the reference point, the benchmark of “unusualness.” “Cruel and unusual” meant “harsher than is permitted in the particular jurisdiction.”  With this understanding in place, moderate Anti-Federalists gave their assent to ratification and a Nation was born...

The people of Massachusetts have effectively turned their face against the death penalty, believing it to be an inappropriate method of punishment within their Commonwealth.  Just like the Commonwealth’s conditional assent to the 1783 confederal impost, the Anti-Federalists’ assent to ratification on condition that a bill of rights be adopted preserves the Commonwealth’s authority to set the outer bounds of punishment for crimes committed entirely within its borders.  The core, irreducible meaning of the Eighth Amendment is that this judgment is the Commonwealth’s to make.

The federal government may not impose capital punishment in this case because the death penalty, in the most fundamental, literal meaning of the words, is “cruel and unusual punishment” in Massachusetts.

Of course, substantive Eighth Amendment issues are not directly in front of the Supreme Court in Tsarnaev because the First Circuit reversed the Boston Marathon bomber's death sentence on procedural grounds. But the good professor urges SCOTUS to instruct the lower courts to address this matter if it were to at some point remand the case to the First Circuit.

Sixth Circuit invents another extra-textual limit on what can permit a sentence reduction under 3582(c)(1)(A), including one in contradiction of USSC guidelines

In this post earlier today, I noted and criticized the Third Circuit's work in US v. Andrews, No. 20-2768 (3d Cir. Aug. 30, 2021) (available here), for its embrace of extra-textual categorial exclusions as to what might qualify as extraordinary and compelling reasons to support a sentence-reduction motion under 18 U.S.C. § 3582(c)(1)(A).  Turns out, today was a special day for this kind of extra-textual policy work by the courts, as the Sixth Circuit in US v. Hunter, No. 21-1275 (6th Cir. Aug. 30, 2021) (available here), also decided to make up rules in this context:

As explained further below, the text and structure of § 3582(c)(1)(A) limit a district court’s discretion to define “extraordinary and compelling” in two ways relevant to this case. First, non-retroactive changes in the law, whether alone or in combination with other personal factors, are not “extraordinary and compelling reasons” for a sentence reduction. Second, facts that existed when the defendant was sentenced cannot later be construed as “extraordinary and compelling” justifications for a sentence reduction.

I have explained in a number of prior posts why the "first" point made by the Hunter court is unsupported by the text of 3582(c)(1)(A) (see here)  But the "second" point from the Hunter panel seems especially problematic and an especially misguided policy invention.  Congress instructed, in 28 U.S.C. § 994(t), that the US Sentencing Commission "describe what should be considered extraordinary and compelling reasons for sentence reduction," and the USSC has expressly stated, in USSG §1B1.13 application note 2, that facts that existed when the defendant was sentenced can later support a finding of "compelling and extraordinary" reasons for a reduction.  Here is this USSC application note in full:

2. Foreseeability of Extraordinary and Compelling Reasons. — For purposes of this policy statement, an extraordinary and compelling reason extraordinary and compelling reasons need not have been unforeseen at the time of sentencing in order to warrant a reduction in the term of imprisonment.  Therefore, the fact that an extraordinary and compelling reason reasonably could have been known or anticipated by the sentencing court does not preclude consideration for a reduction under this policy statement.

So, to review, Congress tasked the Sentencing Commission with describing how district courts should assess extraordinary and compelling reasons for a sentence reduction, and the USSC said that there is no preclusion on the consideration of facts known at the time of sentencing.  But, in contravention of the instructions of Congress and the work of the USSC, this Sixth Circuit panel has decided it can and should make up its own misguided rule that facts that existed when the defendant was sentenced cannot contribute to providing extraordinary and compelling reasons for a reduction.

As I see the Hunter opinion, it really seems like the panel was troubled by a murderer getting his sentence reduced to "only" 21 years in prison.  If the substantive merits of the reduction  so bothered the panel, I sure wish it would have explained its concerns with a focus on how the 3553(a) factors were weighed, rather than by making up a lot of problematic law concerning what cannot serve as the basis for finding an extraordinary and compelling reason.   As I have noted before, Congress set forth one (partial) express exclusion in § 994(t): "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason."  In light of this clear (and limited) statutory command, all other limits created by circuit courts appear to me to be extra-textual policy-making, not textual statutory interpretation.

Prez Biden reportedly considering, for home confinement cohort, clemency only for "nonviolent drug offenders with less than four years" left on sentence

The New York Times has this notable new report, headlined "White House Weighs Clemency to Keep Some Drug Offenders Confined at Home," which suggests a limited subclass of the home confinement cohort may the focal point for clemency efforts by the Biden White House.  Here are the details, many of which are not that new, but all of which are important as efforts move slowly forward to help this cohort:

President Biden is considering using his clemency powers to commute the sentences of certain federal drug offenders released to home confinement during the pandemic rather than forcing them to return to prison after the pandemic emergency ends, according to officials familiar with internal deliberations.

The legal and policy discussions about a mass clemency program are focused on nonviolent drug offenders with less than four years remaining in their sentences, the officials said. The contemplated intervention would not apply to those now in home confinement with longer sentences left, or those who committed other types of crimes.

The notion of clemency for some inmates is just one of several ideas being examined in the executive branch and Congress. Others include a broader use of a law that permits the “compassionate release” of sick or elderly inmates, and Congress enacting a law to allow some inmates to stay in home confinement after the pandemic.

Interviews with officials in both the executive branch and Congress, most of whom spoke on the condition of anonymity to discuss sensitive deliberations, suggest there is broad support for letting nonviolent inmates who have obeyed the rules stay at home — reducing incarceration and its cost to taxpayers. But officials in each branch also foresee major challenges and have hoped the other would solve the problem....

Inmate advocates and some Democratic lawmakers have urged the Biden legal team to rescind the Trump-era memo and assert that the bureau can lawfully keep the prisoners in home confinement even after the pandemic ends.

But The New York Times reported last month that the Biden legal team had concluded that the memo’s interpretation of the law was correct, according to officials briefed on the internal deliberations. Officials have subsequently characterized that scrutiny as a preliminary review and said that a more formal one was underway, but suggested that a reversal of the Trump-era legal interpretation continued to be highly unlikely.

Against that backdrop, in a little-noticed comment at a press briefing this month, the White House press secretary, Jen Psaki, let slip that Mr. Biden was taking a closer look at clemency to help the subgroup who are nonviolent drug offenders....  In interviews, officials have subsequently confirmed that focus.  As a first step, the Justice Department will soon begin requesting clemency petitions for drug offenders who have less than four years left on their sentence, which will then be reviewed by its pardon office, they said.

It is unclear whether the Biden team is leaning toward commuting the sentences of the nonviolent drug offenders to home confinement, reducing the length of their sentences to bring them within the normal window for home confinement or a mix of the two.  The officials said focusing on nonviolent drug offenders, as opposed to other types of criminals, dovetailed with Mr. Biden’s area of comfort on matters of criminal justice reform. In his campaign platform, Mr. Biden had said he pledged to end prison time for drug use alone and instead divert offenders to drug courts and treatment.

Inimai Chettiar, the federal director of the Justice Action Network, called the idea a good start but also questioned the basis for limiting it to some nonviolent drug offenders, saying there was “no scientific evidence” for restricting the help to that category.  She suggested another explanation. “Politically, it’s an easier group to start with,” Ms. Chettiar said.

In addition, officials said, the Justice Department is studying other options that could help keep different groups from being forced back into prison.  Another idea under consideration is to petition the courts to let some individual inmates stay in home confinement under a “compassionate release” law. While the compassionate release law is normally used to permit terminally ill inmates to rejoin their families shortly before dying, the statute includes a broad standard for what a judge could decide warrants a sentence reduction — “extraordinary and compelling reasons” — that is not defined and might be applied to the pandemic-era home confinement population.

Kristie Breshears, a spokeswoman for the Bureau of Prisons, said additional options included expanding a pilot program that allows for the early release of older inmates in order to keep some who are over the ago of 60 in home confinement, and placing some inmates in halfway houses for 12 months.

Separately, Senators Richard J. Durbin of Illinois and Charles E. Grassley of Iowa — the top Democrat and Republican on the Senate Judiciary Committee — have also been discussing potential bipartisan legislation that would solve the problem in a simpler way by explicitly authorizing the Justice Department to extend home confinement after the pandemic.

At a hearing in April, Mr. Grassley joined Democrats in voicing support for allowing inmates in home confinement to stay there.  Taylor Foy, a spokesman for Mr. Grassley, said his office had drafted legislation that month that would let “inmates moved to home confinement during the pandemic complete their sentences there rather than returning to prison after the pandemic ends.”

Mr. Durbin had been among those who urged the Biden administration to instead reinterpret existing law as permitting perpetual home confinement for those inmates who were placed there during the emergency period. In a statement, Mr. Durbin embraced the idea of new legislation, but also said he did not think it would be easy — or necessary.  The prospects for legislation in “an evenly divided Senate are uncertain,” he said, reiterating his view that “the Biden administration has ample executive authority to immediately provide the certainty” to the inmates.

I would be eager it see an "all of the above" and more approach move forward in the months ahead. Prez Biden should certainly consider commuting many of the sentences of nonviolent drug offenders on home confinement (and also many others) AND there should be a continued push to seek sentence reductions in the courts for others on home confinement (and also many others) AND BOP should expand its pilot program for releasing older offenders into home confinement AND Senators Grassley and Durbin should keep pushing forward with legislation to expand the authority for placement into home confinement and to prevent those so placed from having to return to prison absent misbehavior.

When campaigning for his current job, Prez Biden promised that he would "take bold action to reduce our prison population."  But the federal prison population has so far grown significantly in the first seven month of the Biden Administration.  Specifically, the federal prison population has grown by over 4000 persons according to BOP numbers, from 151,646 total inmates on Jan 21, 2021 to 155,730 total inmates on Aug 26, 2021.  To date, I cannot really think of any actions (let alone bold ones) that Prez Biden has taken to reduce the federal prison population.  Talk of some clemency action is heartening, but just a start.  And whatever clemency efforts are made, they should extend beyond just a limited group who are already home.

Third Circuit invents some extra-textual limits on what might permit a sentence reduction under 3582(c)(1)(A)

Over the last year, the federal circuits have started issuing various opinions concerning what factors may serve as the basis for compassion release in the wake of the FIRST STEP Act allowing courts to consider sentence-reduction motions under 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  Of course, Congress long ago expressly instructed, in 28 U.S.C. § 994(t), that the US Sentencing  Commission "shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples."  But the Commission has not had a quorum in the nearly three years since the FIRST STEP Act became law, so courts have had to figure out these matters on their own for now.

Given the statutory text enacted by Congress in 1984 and in 2018, I think the first big circuit ruling in this space had it right.  Specifically, the Second Circuit in September 2020 was the first circuit to rule in Zullo/Brooker, quite rightly in my view, that district courts now have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" to justify a sentence reduction under 3582(c)(1)(A).  That seemed right because Congress nowhere placed in the statutory text any categorical limits on what kinds of factors could qualify as "extraordinary and compelling."  Congress did set forth one (partial) express exclusion in § 994(t): "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason."  But this clear statutory command always led me to conclude that (1) any other factor could possibly be considered an extraordinary and compelling reason, and also (2) that rehabilitation of the defendant combined with other factors could be considered an extraordinary and compelling reason.

I provide this backstory to explain why I am troubled by part of the Third Circuit's work today in US v. Andrews, No. 20-2768 (3d Cir. Aug. 30, 2021) (available here).  The very first sentence of the Andrews ruling has a Kafka-esque "only in America" quality to it: "Eric Andrews is serving a 312-year sentence for committing a series of armed robberies when he was nineteen."  That a person at age 19 can get a 312-year sentence for a series of robberies strikes me as quite extraordinary and quite compelling, but the district court did not see matters that way.  Specifically, as described by the panel opinion, the district court decided that "the duration of Andrews’s sentence and the nonretroactive changes to mandatory minimums could not be extraordinary and compelling as a matter of law."  Of course, there is no statutory text enacted by Congress that sets forth this "as a matter of law."  But the Third Circuit panel here blesses the extra-textual notion that courts can and should invent some new categorial exclusions "as a matter of law" regarding what might qualify as extraordinary and compelling.  Sigh.

Here is some of the Third Circuit panel discussion (with some cites and parentheticals removed):

We begin with the length of Andrews’s sentence.  The duration of a lawfully imposed sentence does not create an extraordinary or compelling circumstance.  “[T]here is nothing ‘extraordinary’ about leaving untouched the exact penalties that Congress prescribed and that a district court imposed for particular violations of a statute.” United States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021). “Indeed, the imposition of a sentence that was not only permissible but statutorily required at the time is neither an extraordinary nor a compelling reason to now reduce that same sentence.” United States v. Maumau, 993 F.3d 821, 838 (10th Cir. 2021) (Tymkovich, C.J., concurring).  Moreover, considering the length of a statutorily mandated sentence as a reason for modifying a sentence would infringe on Congress’s authority to set penalties. See Gore v. United States, 357 U.S. 386, 393 (1958) (“Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility, these are peculiarly questions of legislative policy.” (citation omitted)).

The nonretroactive changes to the § 924(c) mandatory minimums also cannot be a basis for compassionate release.  In passing the First Step Act, Congress specifically decided that the changes to the § 924(c) mandatory minimums would not apply to people who had already been sentenced.  See First Step Act § 403(b).  That is conventional: “[I]n federal sentencing the ordinary practice is to apply new penalties to defendants not yet sentenced, while withholding that change from defendants already sentenced.”  Dorsey v. United States, 567 U.S. 260, 280 (2012).  “What the Supreme Court views as the ‘ordinary practice’ cannot also be an ‘extraordinary and compelling reason’ to deviate from that practice.” United States v. Wills, 997 F.3d 685, 688 (6th Cir. 2021).  Interpreting the First Step Act, we must “bear[] in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 320 (2014)... And when interpreting statutes, we work to “fit, if possible, all parts” into a “harmonious whole.” Brown & Williamson, 529 U.S. at 133 (internal quotation marks omitted) (quoting FTC v. Mandel Bros., Inc., 359 U.S. 385, 389 (1959)).  Thus, we will not construe Congress’s nonretroactivity directive as simultaneously creating an extraordinary and compelling reason for early release.  Such an interpretation would sow conflict within the statute.

This ruling and others like it seem to me to have the framing wrong.  Sure, a lawfully imposed sentence, even one based on now-reduced mandatory minimums, will not and should not alone  always qualify in every single case as the sole basis for compassionate release.  (This is what making a change retroactive will do "as a matter of law," namely make every sentence imposed based on that law always eligible for a reduction in every single case.)  Defendants in these compassionate release cases are not arguing that a lawful, now-changed sentence serves as the sole basis for a reduction in all cases, rather they are just saying such facts can and should be considered by judges along with other factors in assessing whether there are extraordinary and compelling reasons for sentence reduction.  Since Congress has not expressly stated that these are improper factors, they can only become unlawful if and when judges start making up extra-textual limits on application of statutory law here.

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
• Tenth Circuit becomes the latest circuit to embrace a robust view of sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act 
• Tenth Circuit issues another notable ruling on federal compassionate release authority after the FIRST STEP Act
• Fifth Circuit latest to issue notable ruling on federal compassionate release authority after the FIRST STEP Act
• Ninth Circuit provides yet another ruling on post-FIRST STEP Act federal compassionate release authority 
• Split Sixth Circuit panel further muddles what grounds can contribute to basis for sentence reduction under § 3582(c)(1)(a) 
• Amicus brief stresses congressional text does not preclude legal change as basis for 3582(c)(1)(a) sentence reduction

RFK killer. Sirhan Sirhan, recommended for parole after decades of denials

As the saying goes, if at first you do not succeed, try, try again.  As detailed in this Los Angeles Times article, after trying again and again to get a positive parole recommendation, the assassin of Robert Kennedy, Sirhan Sirhan, today finally succeeded:

Sirhan Sirhan, the man convicted of assassinating Robert F. Kennedy at a Los Angeles hotel more than 50 years ago, was recommended for release by a California parole board Friday, the first step toward making him a free man.

The two-person panel Sirhan appeared before Friday granted parole, but the decision is not final.  Parole staff still have 90 days to review the matter.  After that, Gov. Gavin Newsom — or whoever might replace him following next month’s recall election — could still decide to block Sirhan’s release.

Sirhan, then a 24-year-old Palestinian immigrant who had written a manifesto calling for Kennedy’s death, shot the senator at the since-demolished Ambassador Hotel on Wilshire Boulevard in Los Angeles in 1968. Kennedy was considered a leading candidate for president and had just won primaries in South Dakota and California at the time of his assassination.  Sirhan admitted to the killing in 1969 and has been in prison for 53 years.

The board granted his release Friday, in part, after receiving letters of support from two members of the slain senator’s family. Robert F. Kennedy Jr., who has previously expressed doubt about Sirhan’s guilt, said he believed his father might extend mercy to his own killer.  “While nobody can speak definitively on behalf of my father, I firmly believe that based on his own consuming commitment to fairness and justice, that he would strongly encourage this board to release Mr. Sirhan because of Sirhan’s impressive record of rehabilitation,” Kennedy Jr. wrote in a letter submitted in advance of Friday’s hearing.

Douglas Kennedy said that while he’d lived in fear of Sirhan for years, he saw him now as “worthy of compassion and love.” “I really do believe any prisoner who is found to be not a threat to themselves or the world should be released,” Douglas Kennedy wrote. “I believe that applies to everyone, every human being, including Mr. Sirhan.”

The Los Angeles County Sheriff’s Department submitted a letter opposing Sirhan’s release, on behalf of the Kennedy family.

Erin Mellon, a spokeswoman for Newsom, said the governor will review Sirhan’s case if it is presented to him....

Angela Berry, Sirhan’s attorney, says the 77-year-old has not been accused of a serious violation of prison rules since 1972 and that prison officials have deemed him a low risk for violence. Sirhan first became eligible for parole in 1972. Between 1983 and 2006, he was granted parole hearings every one to two years, but was always denied. Beginning in 2006, those hearings were held just twice a decade. He was last denied release in 2016.

The recommendation for Sirhan’s release also came without opposition from L.A. County prosecutors, who are barred from fighting release at parole hearings under a policy enacted by Dist. Atty. George Gascón. While Gascón’s policy had been in effect for nearly nine months, it attracted new scrutiny this week because of Sirhan’s case. Gascón has said it should be up to the parole board to determine an inmate’s suitability for release, rather than prosecutors who are simply relitigating the facts of old cases, sometimes decades later....

Critics of Gascón have said the parole policy is indicative of a broader abandonment of victims under his administration. Some victims have complained to The Times that they felt helpless without an advocate present when they went to oppose the release of a loved one’s killer earlier this year. L.A. County Sheriff Alex Villanueva, a staunch opponent of Gascón, has also said he would send staff to aid victims at parole hearings if Gascón wouldn’t send prosecutors, but he has yet to explain how often he’s done so or what impact, if any, the move has had in such cases....

While critics of Gascón have claimed the parole policy will end with a flood of violent criminals returning to the streets, data suggest otherwise. Records show the state parole board only granted release in about 19% of all cases it heard from 2018 to 2020, and that does not factor in cases where Newsom later blocked an inmate’s release.

It will be interesting to see if Gov. Newsom says anything publicly about this case before the recall election in a few weeks at a time when his rivals are accusing him of being "soft on crime."

Amazing line-ups for "The Future of the President’s Pardon Power: 2021 Clemency Panel Series"

I am so very pleased and proud to be helping to put on a terrific series of online panels to explore in depth the federal clemency powers.  This series is jointly organized by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law, the Collateral Consequences Resource Center, the Federal Sentencing Reporter, and the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance at Villanova University Charles Widger School of Law. 

Though a whole lot of folks are doing great work putting this series together, the indefatigable Margaret Love merits extra praise for helping to turn a general idea into this great series.  She also deserves special recognition for her work helping to assemble writings on these timely topics in Volume 33, Issue 5 of the Federal Sentencing Reporter (which largely provides the foundation for these panels.)

The series’ three panels will discuss the use of the pardon power by President Donald Trump and how it may influence pardoning in the future. They will consider whether Trump’s irregular pardoning may have been a blessing in disguise by prompting much-needed reforms in law and in practice.

PANEL 1: Donald Trump’s Theatre of Pardoning: What Did We Learn?

September 14, 2021 | 12:30 – 2:00 p.m. EDT | Zoom

Panelists:

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

 

PANEL 2: Supplementing the Pardon Power: Second Looks and Second Chances

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

Panelists:

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

 

PANEL 3: Managing the Pardon Power: Should the Justice Department Remain the Gatekeeper?

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

Panelists:

• Rachel Barkow, Vice Dean and Charles Seligson Professor of Law, New York University School of Law
• Jeff Crouch, assistant professor of American politics, School of Public Affairs, American University
• Margaret Love, executive director, Collateral Consequences Resource Center, former U.S. Pardon Attorney

California Supreme Court turns back broad challenge to state capital procedures

As detailed in this Los Angeles Times article, headlined "California’s top court declines to overhaul death penalty," a broad challenge to death penalty procedures was rejected by the California Supreme Court today.  Here are the basics:

The California Supreme Court on Thursday decided to leave the state’s death penalty law intact, refusing an entreaty from Gov. Gavin Newsom that would have overturned scores of death sentences.

In a unanimous decision, the state’s highest court said there was little legal support under state law for overhauling the law, as opponents of capital punishment urged. In fact, the court said, some of the precedents cited by defense lawyers actually undercut their position.

Defense lawyers had argued the state’s capital punishment law was unconstitutional because it failed to require jurors to unanimously agree beyond a reasonable doubt on the reasons why a defendant should be sentenced to death instead of life without possibility of parole. A decision to impose the death penalty also should be made beyond a reasonable doubt, the standard now used in deciding guilt, the lawyers said.

If the court had agreed, hundreds — if not all — death sentences would have had to be overturned because such decisions generally apply retroactively.

Justice Goodwin Liu, who wrote the ruling, said some of the cases cited by defense attorneys did not support their position. “If anything,” he said, they suggested “the ultimate penalty determination is entirely within the discretion of the jury.” The court did not reject the constitutional arguments raised by Newsom but said they did “not bear directly on the specific state law questions before us.”

In a concurring opinion, Liu said there was enough U.S. Supreme Court precedent to warrant reconsidering California’s death penalty rules in future cases. He noted that some other states have changed their capital punishment requirements as a result of more recent Supreme Court rulings on the 6th Amendment, which protects the trial rights of the criminally accused....

John Mills, who represented two scholars of the state Constitution as friends of the court, said the ruling and Liu’s concurrence have provided a road map for future challenges that may be more likely to succeed. He predicted death row inmates will soon bring the kinds of claims that Liu said might be persuasive but were not at issue in McDaniel’s appeal. “He was laying out some concerns that were not presented by Mr. McDaniel about the operations of the California death penalty statute that he is concerned may violate the federal Constitution,” Mills said. “Those issues remain an open question in California because they were not litigated in this case.”...

California has more than 700 inmates on death row, but legal challenges have stymied executions. Only 13 inmates have been executed since 1992, and Newsom imposed a moratorium on executions during his time in office.

The full 111-page opinion from the California Supreme Court is available at this link.

Notably high-profile cases now the focus of parole decision-making

Perhaps in part because the federal system abolished parole nearly 40 years ago through the Sentencing Reform Act of 1984, parole practices and parole reform often do not get the most attention in broad debates about criminal justice and sentencing policies.  But the majority of states still have parole as part of their justice systems, and this 2019 Prison Policy Initiative report makes the case that "most states show lots of room for improvement" in their parole practices.

I have general parole issues on the mind because two new press pieces about a couple of high-profile cases serve as a useful reminder of the import of parole decision-making and the array of actors who can impact this decision-making:

From The Hill, "Prosecutors for first time not opposing parole for RFK assassin Sirhan Sirhan"

Los Angeles prosecutors for the first time have decided not to oppose the release of Sirhan Sirhan, the man convicted of assassinating former Sen. Robert F. Kennedy (D-N.Y.) in 1968.  The Washington Post reported that Los Angeles County District Attorney George Gascón’s office is remaining neutral in the case and will not be present at Sirhan's parole hearing on Friday.

While prosecutors had opposed Sirhan’s release in 15 previous parole hearings, Gascón upon taking on his role in December 2020 said his office’s “default policy” would be to not attend parole hearings and to instead work to submit letters in support of inmates who have served mandatory minimums and no longer pose a threat to society. 

From The Guardian, "Black police groups call for ex-Black Panther jailed for 48 years to be released"

A coalition of current and retired Black police officers is calling for the release on parole of Sundiata Acoli, a former Black Panther member who has been incarcerated for 48 years for the 1973 murder of a New Jersey state trooper.

Four Black law enforcement groups have joined forces to press the case for Acoli’s parole almost half a century after he was arrested.  In an amicus brief filed with the New Jersey supreme court, they call his continued imprisonment “an affront to racial justice” and accuse the parole board of violating the law by repeatedly refusing to set the prisoner free.

Unusual Fourth Circuit panel affirms federal convictions and death sentence for Charleston church shooter Dylann Roof

I noted in this post from May 2021 that an unusual Fourth Circuit panel had to be assembled to hear the capital appeal of Charleston church shooter Dylann Roof because all the member of the Fourth Circuit were recused.  The mass recusal resulted from the fact that now Circuit Judge Jay Richardson was in the U.S. Attorney’s Office in South Carolina in 2017 and the lead prosecutor on the Roof case.  And it meant that  Judge Duane Benton of the Eighth Circuit, Judge Kent Jordan of the Third Circuit and Senior Judge Ronald Gilman of the Sixth Circuit considered Roof's many issues on appeal.

That trio of judges today handed down a 149-page opinion in United States v. Roof, No. 17-3 (Aug. 25, 2021) (available here).  The per curiam opinion starts and concludes this way:

In 2015, Dylann Storm Roof, then 21 years old, shot and killed nine members of the historic Emanuel African Methodist Episcopal Church (“Mother Emanuel”) in Charleston, South Carolina during a meeting of a Wednesday night Bible-study group.  A jury convicted him on nine counts of racially motivated hate crimes resulting in death, three counts of racially motivated hate crimes involving an attempt to kill, nine counts of obstructing religion resulting in death, three counts of obstructing religion involving an attempt to kill and use of a dangerous weapon, and nine counts of use of a firearm to commit murder during and in relation to a crime of violence.  The jury unanimously recommended a death sentence on the religious-obstruction and firearm counts, and he was sentenced accordingly. He now appeals the convictions and sentence.  Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3595(a), we will affirm....

Dylann Roof murdered African Americans at their church, during their Bible-study and worship. They had welcomed him. He slaughtered them. He did so with the express intent of terrorizing not just his immediate victims at the historically important Mother Emanuel Church, but as many similar people as would hear of the mass murder. He used the internet to plan his attack and, using his crimes as a catalyst, intended to foment racial division and strife across America.  He wanted the widest possible publicity for his atrocities, and, to that end, he purposefully left one person alive in the church “to tell the story.” (J.A. at 5017.)  When apprehended, he frankly confessed, with barely a hint of remorse.

No cold record or careful parsing of statutes and precedents can capture the full horror of what Roof did. His crimes qualify him for the harshest penalty that a just society can impose.  We have reached that conclusion not as a product of emotion but through a thorough analytical process, which we have endeavored to detail here. In this, we have followed the example of the trial judge, who managed this difficult case with skill and compassion for all concerned, including Roof himself.  For the reasons given, we will affirm

In capital cases, it is pretty common for the losing party to seek en banc review. But, as was discussed in my May post, it is unclear whether and how an additional 12 judges would get appointed by designation in order to properly consider any en banc petition that might come next. Roof can, of course, proceed now to seek certiorari from the U.S. Supreme Court (which will surely happen eventually even if he does seek en banc review).

A few of many prior related posts:

• Should I be more troubled by Dylann Storm Roof being allowed to defend himself at his federal capital trial? 
• Dylann Roof tells federal judge he does not plan to present any evidence at penalty phase of his capital trial
• "Why Dylann Roof Has a Right to the Death Penalty" ... OR "Why Dylann Roof Representing Himself Is A Constitutional Tragedy"
• Charleston church shooter Dylann Roof to have appeal of his death sentence heard by (unusual) Fourth Circuit panel 

"When the Conditions Are the Confinement: Eighth Amendment Habeas Claims During COVID-19"

The title of this post is the title of this new paper authored by Michael Zuckerman with an abstract now available via SSRN.  Here is that abstract:

The COVID-19 pandemic cast into harsher relief much that was already true about mass incarceration in the United States.  It also cast into harsher relief much that was already true about the legal barriers confronting people seeking to make its conditions more humane.  This Article offers a brief overview of the legal landscape as the COVID-19 crisis arose and then dives into surveying eight prominent federal cases involving habeas claims related to COVID-19 outbreaks at carceral facilities.  The Article then distills six key tensions from these cases and discusses their implications for future litigation and doctrine. 

Specifically, the Article addresses: (a) the relationship between habeas and classic “conditions of confinement” cases; (b) the nature of Eighth Amendment “deliberate indifference” in this context; (c) the efficacy and availability of class-wide procedures for adjudicating these kinds of claims; (d) issues involving federalism and comity, and how courts may source such concerns through exhaustion requirements; (e) whether temporary release is better conceived of under these circumstances as preliminary or final relief; and (f) the fraught interplay between rights and remedies.  The Article concludes by suggesting potential solutions for courts and legislatures.

NY Gov Andrew Cuomo leaves office with a (high-profile) clemency whimper

in a detailed report released early last year, the NYU Center for the Administration of Criminal Law documented the decline of clemency in New York state in modern time.  This report, titled "Taking Stock of Clemency in the Empire State: A Century in Review," starts this way:

Clemency in New York has long been declining, while the state’s prison population has grown dramatically.  Between 1914 and 1924, New York averaged roughly 70 commutations per year, equal to the total number granted between 1990 and 2019.  In 1928, Governor Al Smith granted 66 commutations from a total prison population of 7,819.  Had commutations been granted at an equivalent rate in 2019, there would have been approximately 373; in actuality, there were two.

The ugly modern New York clemency numbers were particularly disheartening given that former NY Gov Cuomo started talking big about NY clemency efforts in 2015 and again in 2017 (see prior posts here and here).  But, after talking the talk, former Gov Cuomo thereafter never actually delivered significant results (see prior posts here and here). 

But, as is depressingly common, former Gov Cuomo did deciding to go on a bit of a final (though still modest) clemency spree after announcing his resignation.  This AP piece  detailed that Cuomo granted five pardons and five clemencies last week, and this new local piece details that in his final hours in office, "Gov. Andrew Cuomo commuted the sentences of four individuals, referred one case to the parole board, and fully pardoned one individual."  Given that there are well nearly 40,000 persons in New York prisons (with likely more than 10,000 over 50) and probably more than four million will some sort of state criminal record, a total of 16 clemencies on the way out the door seems more like a whimper than a bang.

That said, the one referral to the parole board will be sure to get attention because it involved a high-profile inmate with a high-profile son and it does not serve as a conclusion of the matter.  This local article, headlined "Cuomo commutes sentence of radical who took part in '81 robbery; David Gilbert, imprisoned for four decades, can take case to parole board," provides the basics:

Just hours before leaving office, Gov. Andrew M. Cuomo granted clemency to five men, including the commutation of the 75-years-to-life sentence of David Gilbert, a former member of the radical Weather Underground who in 1981 took part in the robbery of a Brink's armored truck in Rockland County that left two Nyack police officers and a security guard dead.

Cuomo's action will allow Gilbert to make his case to the parole board.  The 76-year-old has been incarcerated for four decades after being convicted of felony murder and robbery.  He is currently confined at Shawangunk Correctional Facility, a maximum-security prison in Ulster County, 80 miles south of Albany.

Steve Zeidman, a CUNY Law School professor who began representing Gilbert in 2019, said Monday evening that his client is one of the oldest and longest-serving among the state's roughly 38,000 inmates.  He said that Gilbert has expressed deep remorse for his role in the crime, and while behind bars has taken part in efforts such as the creation of an AIDS education program that became a statewide model as the epidemic was raging in the 1980s and '90s.

Zeidman, who directs the law school's Criminal Defense Clinic, said that beyond the impact on Gilbert personally, Cuomo's action sends a message to incarcerated people who fear they have no chance for release.  "When a governor issues clemency, it echoes, it reverberates, it spreads hope," he said.  Gilbert's son, Chesa Boudin, was elected district attorney for San Francisco in 2019.  His mother, Kathy Boudin, was also incarcerated for decades for her part in the heist, and received parole in 2003.

The Times Union's Paul Grondahl wrote in November about the efforts of Chesa Boudin and Green Island's Jeff Jones, a family friend and former '60s radical turned environmental advocate, to press Cuomo to release Gilbert from prison — especially due to the COVID-19 pandemic.  "As someone who has known David since 1966, I'm just ecstatic," Jones said Monday evening. " ... He's a guy who deserves to be out of prison."

 

Gilbert and Kathy Boudin were in a transfer truck waiting for the getaway car carrying the robbers and the $1.6 million they had stolen from the Brink's truck at the Nanuet Mall. Boudin received a sentence of 25 years to life after hiring a lawyer, pleading guilty and accepting a plea deal; Gilbert defended himself and went to trial.

"My father was not present in the courtroom for much of the trial and nobody advocated for him, which is why it is a bad idea to represent yourself," Chesa Boudin told Grondahl. "My mother and father did the exact same thing and had identical culpability in the crime. My mother served 22 years in prison and was paroled 17 years ago, while my father is still in prison. It's an example of criminal justice imbalance."

Boudin noted that his father is perhaps the only person his age who has served as many years in state prison who was unarmed during the commission of the crime.  Another Brink's robbery co-defendant, Weather Underground member Judith Clark, who drove the getaway car, was granted parole in 2019 after Cuomo commuted her 75-years-to-life sentence in 2016.  Prosecutors and law enforcement bitterly opposed her parole and called it an insult to the victims' family members.

En banc Sixth Circuit preserves death sentences in Kentucky in two big en banc rulings

This past Friday and also today, the Sixth Circuit handed down divided en banc rulings to upholds death sentences in cases from Ohio and Kentucky.  The Ohio case, Hill v. Shoop, No. 99-4317 (6th Cir. Aug, 20, 2021) (available here), has a majority opinion that gets started this way:

In this death penalty habeas case, appellant Danny Hill seeks collateral review of his conviction for the murder of Raymond Fife, a twelveyear-old boy. The case has been to the Supreme Court once and before panels of this court twice.  The core issue in the underlying state case was whether Hill was ineligible for the death penalty because he is intellectually disabled, a question that became pertinent after the Supreme Court’s 2002 decision in Atkins v. Virginia, 536 U.S. 304 (2002). Before us, the issues are whether, under governing AEDPA review principles, the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).  We conclude that the state court’s resolution of the issue does not meet either of the criteria that would permit a federal court to disturb a state conviction. Thus, we affirm the district court’s denial of Hill’s petition for a writ of habeas corpus.

The Kentucky case, Taylor v. Jordan, No. 14-6508 (6th Cir. Aug, 23, 2021) (available here), has a majority opinion that gets started this way:

Victor Taylor murdered two high-school students in 1984, for which a jury convicted him of capital murder and recommended a sentence of death.  The trial judge imposed that sentence and the Kentucky Supreme Court repeatedly denied Taylor’s claims for relief.  Taylor eventually filed a federal habeas petition, arguing (among many other things) that the prosecutor at his trial had discriminated against African-American members of his venire.  The district court denied Taylor’s petition. We affirm.

Still more attention (and some helpful action) for the home confinement cohort

It has now been a full month since the news broke that the Biden Justice Department was going to accept the legal opinion that federal prisoners released into home confinement would have to be returned to prison after the pandemic.  The dilemma of the home confinement cohort continues to generate considerable attention and here are a few new pieces:

From The Bulwark, "Biden Must Act to Ensure Nonviolent Offenders Aren’t Sent Back to Prison"

From Inquest, "Keeping Them Home: During the Trump administration, lawyers at DOJ said thousands of people who were sent home from prison during the pandemic need to be sent back when the COVID emergency ends. They got the law wrong, and DOJ should say so."

Helpfully, in addition to attention, this week also brought action to help this group as detailed in this new press release titled "FAMM, NACDL, and Washington Lawyers’ Committee launch CARES Act Home Confinement Clearinghouse."  Here are the basics:

FAMM, the National Association of Criminal Defense Lawyers (NACDL), and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs (WLC) launched the “CARES Act Home Confinement Clearinghouse” today in an effort to prevent up to 4,000 people on CARES Act home confinement from returning to prison.

The Home Confinement Clearinghouse will match people on home confinement with pro bono attorneys or federal public defenders who will consider filing compassionate release motions in federal court on their behalf.

“Sending thousands of people back to prison after nearly two years of being with their families and reintegrating into society is unnecessary and cruel,” said FAMM President Kevin Ring. “The White House has shown no willingness to act so we are turning to the courts.”...

Due to the Biden Administration’s failure to act, FAMM, NACDL, and WLC have determined that it is essential for people on home confinement to pursue other viable options to avoid their unnecessary return to prison. Compassionate release is one such option....

People eligible for free representation through the CARES Act Home Confinement Clearinghouse fall into the extraordinary and compelling circumstances provision in the federal compassionate release law. Many of them have been deemed by the Bureau of Prisons as “low risk,” were released to home confinement during a global pandemic due to their vulnerability to the virus, were never informed about the possible return to prison, have successfully reintegrated into family and community for a year or longer, and face the re-emergence of COVID-19 threat.

The CARES Act Home Confinement Clearinghouse is modeled after the highly successful Compassionate Release Clearinghouse COVID-19 Project launched by the same organizations last year. The Clearinghouse was launched in an effort to protect vulnerable incarcerated people from the spread of COVID-19 in federal prisons and placed over 2,000 cases with pro bono counsel. Federal public defenders helped even more people. Federal judges answered the call by granting more than 3,500 compassionate release motions, despite BOP and Justice Department opposition to nearly every case,

The Cares Act Home Confinement Clearinghouse will turn to federal judges again to help prevent the cruel unnecessary reincarceration of up to 4,000 law-abiding people. We will also urge the Justice Department to not oppose any of the motions as they have done in the past.

Some of many prior related posts:

• Notable OLC opinion on "Home Confinement of Federal Prisoners After the COVID-19 Emergency" 
• Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption
• Effective review of (just some) issues surrounding home confinement for the Biden Justice Department
• FAMM urges AG Garland to prevent those on home confinement during pandemic from being returning to federal prison 
• Notably advocacy for Prez Biden to use his clemency power to ensure those released into home confinement need not return to prison 
• Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?
• Hoping grandmothers and others on home confinement get compassionate consideration
• New York Times reporting Biden Justice Department agrees with OLC memo stating prisoners transferred to home confinement must return to prison after pandemic ends
• Home confinement cohort at risk of being returned to federal prison garnering still more attention (but still little action) 
• Advocacy groups argue to DOJ that OLC home confinement memo is "incorrect" and should be rescinded 
• Senators Durbin and Booker write to Prez Biden requesting "immediate action" to prevent home confinement cohort from facing return to prison 

Second Circuit panel reverses 48-month (way-below-guideline) sentence as substantively unreasonable for abused woman who provided material support to ISIS

Regular readers know I do not blog much these days about federal sentence reasonableness review because there are not that many blogworthy opinions.  Out of many thousands of appeals brought by federal defendants each year, typically only a few hundred are successful, and all but a few dozen involve miscalculation of the guideline range.  The government rarely appeals, though it has a much better success rate in the relatively few appeals it brings each year. 

In one particular (and relatively rare) categories of cases, the government has a particularly notable history of appellate success when arguing a sentence in unreasonably lenient (see posts linked below for some historical examples).  This category is terrorism cases, and a Second Circuit panel added another example in this category with its ruling today in US v. Ceasar, No. 19-2881 (2d Cir. Aug. 18, 2021) (available here).  Federal sentencing fans will want to review this 53-page opinion in detail, but here is the opinion's introduction:

It is undisputed that beginning in or around January 2016, the defendant-appellee, Sinmyah Amera Ceasar, conspired to provide material support to the Islamic State of Iraq and Syria ("ISIS"), in violation of 18 U.S.C. § 2339B(a). Using social media and the encrypted messaging application Telegram, Ceasar expressed her support for ISIS, encouraged others to join ISIS abroad, and helped individuals in the United States contact ISIS members overseas. The overseas ISIS members then facilitated U.S.-based ISIS supporters' travel to ISIS-controlled territory. Ceasar herself intended to travel to ISIS territory by way of Sweden, where she planned to marry another ISIS supporter. In November 2016, Ceasar was arrested at New York's John F. Kennedy International Airport on her way to Sweden via Turkey. Following her arrest, Ceasar entered into a cooperation agreement with the government in which she pleaded guilty to one count of conspiracy to provide material support to a foreign terrorist organization. In April 2018, the United States District Court for the Eastern District of New York granted her presentence release.

While on presentence release, Ceasar reoffended.  Despite the fact that the conditions of her release explicitly prohibited her from contacting individuals or organizations affiliated with foreign terrorist groups, Ceasar obtained a laptop computer, recreated pseudonymous social media accounts, and resumed contacting or attempting to contact several individuals known to be supporters of ISIS or other extremist groups.  The FBI, investigating Ceasar's conduct, found that she had intentionally deleted incriminating communications and had instructed others with whom she had been in contact to do the same.  The bond underlying her presentence release was revoked, and she was remanded pending sentencing. When the FBI interviewed Ceasar about her conduct while on presentence release, she made a significant number of false and misleading statements....

Mental health professionals who met with and treated Ceasar characterize her conduct as a misguided search for community stemming from a lifetime of sexual, physical, and emotional abuse and neglect.  Beginning in her childhood, Ceasar's father sexually abused her.  At age 13, she entered the foster care system and was abused or neglected in each home in which she was placed.  While Ceasar has never been legally married, she entered into three successive so-called "religious marriages" with older men, beginning when she was 16.  In each of those marriages, her husband physically or emotionally abused her.  Ceasar was diagnosed with complex post-traumatic stress disorder as a result of the abuse and trauma she endured.

Ceasar faced a Sentencing Guidelines range of 360 to 600 months' imprisonment.  Prior to sentencing, the district court ordered the government and Ceasar to provide expert witness testimony or other materials to assist in its sentencing determination.  The district court held a multiday sentencing hearing at which two government and three defense experts testified as to Ceasar's involvement with and support of ISIS and whether she would be likely to reoffend. 

The district court concluded that the advisory Guidelines range was "excessively harsh" and varied downward from it dramatically.  The court found that Ceasar was motivated by the abuse and trauma she suffered most of her life, and that she needed educational and mental health support in lieu of a long prison sentence.  On June 26, 2019, despite the Guidelines minimum of 360 months, the court imposed a 46-month sentence on Ceasar for the Material Support Offense, one month for the Obstruction Offense, and one month for committing an offense while on presentence release, pursuant to 18 U.S.C. § 3147, all to run consecutively for a total term of 48 months' imprisonment.  Because she had been in custody from the time of her arrest in November 2016 until she was granted presentence release in April 2018, and was then remanded to custody on July 19, 2018 (following her violation of the conditions of her presentence release), Ceasar served only 13 additional months from the time of sentencing (June 26, 2019) until she was released from prison on July 28, 2020. 

The government appealed on substantive reasonableness grounds, arguing that the district court abused its discretion by considering Ceasar's need for rehabilitation to the exclusion of other sentencing factors, and that this mitigating sentencing factor could not bear the weight assigned to it. The government further argues that Ceasar's sentence was shockingly low compared with other sentences imposed for similar crimes. 

We are not without sympathy for Ceasar, but we are constrained to agree with the government. We conclude that the district court placed more emphasis on Ceasar's need for rehabilitation than that sentencing factor could bear, and failed adequately to weigh section 3553(a) factors that balance the needs and circumstances of an individual defendant against, among other things, the goals of protecting the public, deterring criminal behavior, and engendering respect for the law. We further conclude that in comparison with sentences for similar terrorism crimes, Ceasar's sentence of 48 months' imprisonment was shockingly low and unsupportable as a matter of law. We therefore vacate the judgment of the district court and remand for resentencing.

Prior posts on similar reasonableness ruling:

• Seventh Circuit panel reverses below-guideline 16-year prison sentence as substantively unreasonable in terrorism case (from Nov 2020)
• Split Second Circuit panel finds 17-year (way-below-guideline) prison sentence in terrorism case substantively unreasonable (from Dec 2019)
• En banc Ninth Circuit finds Millennium Bomber sentence substantively unreasonable (from March 2012)
• Split Eleventh Circuit deems Jose Padilla's 17-year terrorism sentence substantively unreasonable (from Sept 2011)
• Second Circuit issues huge opinion (with sentencing stuff) in Lynne Stewart case (from Sept 2009)
• A terror-filled debate over substantive reasonableness (4th Circuit from June 2008)

Might "big change" in New York leadership include a better record on clemency?

I got to thinking today that the coming resignation of Andrew Cuomo will end a particularly disappointing recent chapter in state clemency activity.  Notably, in the wake of Prez Obama;s 2014 Clemency Project, NY Gov Cuomo started talking big about NY clemency efforts in 2015 and again in 2017 (see posts here and here).  But, after talking the talk, Gov Cuomo thereafter never actually delivered significant results.  Here were a few prior posts covering some of Gov Cuomo's pre-COVID failings as of January 2020:

• Despite creating lots of clemency hope, NY Gov Cuomo delivers little clemency relief 
• "Cuomo's Clemency and Cruelty of False Hope"

And here are just a few of a number of press pieces from the COVID era highlighting that Gov Cuomo's clemency record did not improve during the pandemic: "While COVID-19 Spreads In NY Prisons, Loved Ones On The Outside Plead With Cuomo For Clemency" and "Prisoners Hoping for Mercy Place Little Faith in Cuomo."  (It is also worth recalling a story detailing that Gov Cuomo was not inspiring as to other prison policies during the pandemic: "Judge says Cuomo's prison COVID-19 vaccine policies were 'arbitrary and capricious'.")

The headline of this recent CBNC piece about the leadership transition in Albany, "Kathy Hochul vows big change from ‘toxic’ Cuomo administration, will fire ‘unethical’ staffers," has me hoping that "big change" in Albany will include a whole new approach to clemency.  After very disappointing work by Gov Cuomo, I hope that a new Gov brings some new hope to clemency advocates in New York.  For a host of reasons, I think it would be unrealistic to expect the incoming Gov to prioritize clemency issues right away, but I also think advocates would be wise to urge her to use her clemency pen as another way to distinguish herself from her predecessor.

Amicus brief stresses congressional text does not preclude legal change as basis for 3582(c)(1)(a) sentence reduction

In this post last month, I lamented the split Sixth Circuit panel opinion in US v. Jarvis, No. 20-3912 (6th Cir. June 3, 2021) (available here), which stated that "non-retroactive changes in the law [can] not serve as the 'extraordinary and compelling reasons' required for a sentence reduction."  In that post, I noted that nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes in the law cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors.  As I see it, the majority in Jarvis was eager to create an extra-textual categorical limitation on the authority Congress gave to district courts to reduce sentences because, presumably based on its own sense of sound policy, it wanted to cabin the new sentencing discretion created by the FIRST STEP Act. 

Against that backdrop, I was pleased to learn of a new amicus brief filed in support of rehearing en banc in Jarvis that makes a series of forceful arguments that wisely lean heavily on textualism.  The brief is filed on behalf of the American Conservative Union Foundation Nolan Center for Justice and Shon Hopwood, and I recommend the entire filing (which can be downloaded below).  Here are a few excerpts emphasizing the statutory text:

Until and unless the Sentencing Commission promulgates a new policy statement clarifying what factors district courts may consider in deciding motions for compassionate-release sentence reductions, this Court should refrain from holding that factors are legally impermissible unless consideration of those factors conflict with the statutory text.  To do otherwise is to substitute this Court’s judgment for Congress’s.  Because a district court’s consideration of nonretroactive sentencing-law reforms as extraordinary circumstances does not contravene any contrary statutory command, it is legally permissible (and is in fact consistent with the legislative history and plain text of the First Step Act)....

The Sentencing Commission is empowered to promulgate a new policy statement that expressly permits district courts to consider nonretroactive sentencing-law reforms, combined with other factors, in determining whether a defendant has presented extraordinary and compelling reasons.  That the Commission presently lacks a quorum is irrelevant to interpretation of the underlying statutes.  Since the Commission can promulgate a policy statement permitting consideration of nonretroactive sentencing reforms, district courts may certainly consider such criteria now in the absence of a new and applicable policy statement.

Download Jarvis Amicus Brief FINAL

US Sentencing Commission releases more detailed "Compassionate Release Data Report" for 2020

As detailed in this post, last month the US Sentencing Commission released a short data report titled "Compassionate Release Data." That report provided notable but very basic numbers on the grants and denials of federal compassionate release motions nationwide for calendar year 2020.  The report revealed, as further discussed in this follow-up post, that judges granted a good number of these motions once COVID hit, but that the Bureau of Prisons approved stunningly few compassionate release applications and that there were considerable disparities in grant rates in different judicial districts.

I was quite pleased to see the USSC promulgate any compassionate release data, but I was eager for additional data beyond circuit and district breakdowns of these motions.  In my prior post, I hoped we might at some point see "a lot more offender demographic information (e.g., race, gender, age of movant) and sentence modification information (e.g., primary sentenced offense and amount of sentence reduction)."  Excitingly, the USSC has now released this updated expanded data report that provides a lot more details about compassionate release grants for calendar year 2020.

Specifically, this latest report includes data on "Demographic Characteristics Of Offenders Receiving Compassionate Release" and on "Selected Sentencing Factors For Offenders Receiving Compassionate Release" and on "Type Of Crime For Offenders Receiving Compassionate Release" and on "Original Sentence Length For Offenders Receiving Compassionate Release." I am so very pleased to see this additional data, although the extent of sentence reductions is still a data point not covered which seems to me to be important to understand the full compassionate release story (e.g.,ten granted sentence reduction motions that reduce sentences by five months seem quite different than ten granted motions reducing sentences by five years.)   

Upon first glace, it is hard to see if there are any particularly distinctive or disturbing patterns in this enhanced USSC compassionate release data.  Interestingly, looking at the demographics, I noticed that the percentage of black prisoners securing a sentence reduction in 2020 (which was 45.2% according to the USSC data) appears to be greater than the percentage of black prisoners in federal prison (which was 34.9% as of this USSC report with March 2021 data).  Likewise, I was intrigued to see that the percentage of prisoners convicted of drug trafficking securing a sentence reduction in 2020 (which was 53% according to the USSC data) appears to be greater than the percentage of such prisoners in federal prison (which was 43% as of this same USSC report).   

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

A few of many prior related posts:

• US Sentencing Commission releases fascinating (and bare bones) "Compassionate Release Data Report" 
• More good coverage of the not-so-good (but still not-so-bad) realities of federal compassionate release realities
• Notable data on BOP resistance to compassionate release requests from federal prisoners
• "How Compassionate? Political Appointments and District Court Judge Responses to Compassionate Release during COVID-19" 
• Tangible example of continuing big sentence reductions in COVID era thanks to the FIRST STEP Act 
• Spotlighting remarkable (but still cursory) data on "compassionate release" after FIRST STEP Act 
• Notable new review and accounting of COVID and federal compassionate release results 
• Another dive into the ugly BOP realities of federal compassionate release during the pandemic

As Eleventh Circuit works though ACCA "occasions different" mess, Judge Newson flags Apprendi "prior conviction" issues

A helpful reader alerted me to an interesting new split Eleventh Circuit panel decision in US v. Dudley, No. 19-10267 (7th Cir. July 22, 2021) (available here), concerning application of the severe mandatory minimum in the federal Armed Career Criminal Act.  As regular readers know, ACCA converts the 10-year maximum prison term for illegal gun possession by a felon into a 15-year mandatory minimum if the defendant has the wrong kind of prior convictions.  The basic issue in Dudley is a topic also to be considered by the Supreme Court this fall in Wooden v. US, namely ACCA's requirement that key prior offenses needed to be "committed on occasions different from one another."  In Wooden, the facts of the prior convictions are not in dispute, and so the Supreme Court will likely just explore the legal meaning of "occasions different from one another."  In Dudley, part of the debate concerns uncertainty about the facts of the prior convictions, and so the Eleventh Circuit panel has to discuss how these facts can be proved.

Working through a variety of complicated ACCA precedents, the majority in Dudley ultimately decides that "the district court did not err in relying on the prosecutor’s factual proffer in Dudley’s plea colloquy to find by a preponderance of the evidence that the three qualifying prior convictions for Alabama assault occurred on three separate, distinct occasions."  For hard-core ACCA fans, the majority's discussion might be interesting.  But hard-core Sixth Amendment fans will especially want to check out Judge Newsom's lengthy partial dissent which flags the significant Apprendi issues raised by prior rulings and this case.  Here is are some passages from the partial dissent to show why the whole opinion is worth checking out:

For starters, why doesn’t judicial factfinding involving ACCA’s different-occasions requirement itself violate the Sixth Amendment?  After all, we’ve described the different-occasions inquiry as a factual one....

Of course, I recognize that we and other circuits have repeatedly rejected constitutional challenges to ACCA’s different-occasions inquiry.  See Maj. Op. 18–19 (collecting cases).  We’ve justified ourselves on the ground that the date of an offense is part of the “factual nature” of the conviction — and thus falls under Almendarez-Torres’s exception to Apprendi....

But that explanation, while plausible at first blush, is tough to square with the Court’s characterization of Almendarez-Torres as a “narrow exception” to Apprendi’s general rule.  See Alleyne, 570 U.S. at 111 n.1.  As interpreted by Apprendi, Almendarez-Torres exempts only “the fact of a prior conviction” from the bar on judicial factfinding.  Apprendi, 530 U.S. at 490 (emphasis added).  After all, Almendarez-Torres itself involved only the bare fact that the defendant had been convicted of a prior aggravated assault.  523 U.S. at 226.   Although I don’t question Almendarez-Torres’s continuing vitality — above my pay grade — it seems that we do more than just faithfully apply that decision when we extend its “narrow exception” for the mere “fact of a prior conviction” to include other related facts, such as the date or time of the underlying offense.  Indeed, if Almendarez-Torres authorizes factfinding about more than just the fact of a prior conviction, what’s the limiting principle?  What differentiates the timing of the offense from the fact that it was “violent” for ACCA’s predicate-felony inquiry?  Both, it seems to me, are equally part (or not part) of the “factual nature” of the prior conviction.

Seventh Circuit panel states (in dicta?) that vaccine availability "makes it impossible" for COVID risks to create eligibility for compassionate release

The Seventh Circuit yesterday released a short panel opinion affirming the denial of a compassionate release motion in US v. Broadfield, No. 20-2906 (7th Cir. July 21, 2021) (available here) (Hat tip: How Appealing).  The opinion has a number of notable passages that make this ruling a useful read in full for those working in this arena, but the closing paragraph seemed especially worth highlighting here:

Section 3582(c)(1)(A) was enacted and amended before the SARS-CoV-2 pandemic, and it will continue to serve a beneficent function long after the pandemic ends.  But for the many prisoners who seek release based on the special risks created by COVID-19 for people living in close quarters, vaccines offer relief far more effective than a judicial order.  A prisoner who can show that he is unable to receive or benefit from a vaccine still may turn to this statute, but, for the vast majority of prisoners, the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an “extraordinary and compelling” reason for immediate release.

This final paragraph seems to me to be dicta (though what precedes it might lead some to conclude it is part of the holding).  I suspect the final clause will garner considerable attention no matter how characterized.  Critically, by using the phrase "the vast majority of prisoners," this final sentence still suggests that, at least for a few prisoners, the risk of COVID-19 can still provide an "extraordinary and compelling" reason for compassionate release.  Even more important may be whether lower courts might read this paragraph to mean that COVID risks cannot be combined with other factors to make out extraordinary and compelling reasons. Even if COVID risks are low for the vaccinated, they are not zero and so should be, as I see it, still a potential contributor to assessing what qualifies as an extraordinary and compelling reason when combined with other factors.

"The Evolving Standards, As Applied"

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

In Jones v. Mississippi, the Supreme Court adopted a narrow reading of its Eighth Amendment categorical bar on mandatory juvenile life-without-parole (JLWOP) sentences.  Specifically, the Court rejected the Jones’ claim that the Eighth Amendment categorical limit required a sentencing jury or judge make a finding of permanent incorrigibility — that the defendant is beyond hope of rehabilitation — as a prerequisite to imposing a JLWOP sentence.

In dicta, the Court suggested that Jones could have made an individual as-applied challenge to his sentence under the Eighth Amendment by claiming that his JLWOP sentence was disproportionate to the crime he committed.  While the Court has used a narrow disproportionality standard in non-capital, non-JLWOP cases, it is not clear what standard would apply to individual as-applied Eighth Amendment challenges in capital and JLWOP cases.  The Court customarily reviews such cases categorically under a heightened evolving standards of decency standard, which suggests that an individual as-applied challenge would also merit some heightened level of review.

Accordingly, this Article argues for the adoption of heightened standards of Eighth Amendment review for individual as-applied proportionality challenges in capital and JLWOP cases.  Specifically, the Article advocates for the adoption of an intermediate level of review for JLWOP cases and a strict scrutiny level of review for capital cases.  Further, the Article argues for a broadening of the kinds of sentences that receive heightened scrutiny under the Eighth Amendment, both for categorical challenges and for individual as-applied proportionality challenges.

Part One of the Article describes the Court’s evolving standards of decency doctrine and Eighth Amendment’s categorical limitations on capital and JLWOP sentences.  In Part Two, the Article explains the other side of the application of the Eighth Amendment, the narrow disproportionality test the Court uses to evaluate as-applied challenges in individual non-capital, non-JLWOP cases.  Part Three then argues for the adoption of heightened as-applied standards of review in individual capital and JLWOP cases as an application of the evolving standards of decency doctrine.  Finally, Part IV sketches some possible extensions of the Eighth Amendment’s evolving standards to other punishments and other classes of defendants.

New York Times reporting Biden Justice Department agrees with OLC memo stating prisoners transferred to home confinement must return to prison after pandemic ends

As reported in this new New York Times article, headlined "Biden Legal Team Decides Inmates Must Return to Prison After Covid Emergency," it appears that the US Department of Justice is not changing its view of the limits of congressional authority to move people to home confinement under the CARES Act. Here are the details:

The Biden administration legal team has decided that thousands of federal convicts who were released to home confinement to reduce the risk of spreading Covid-19 will be required by law to return to prison a month after the official state of emergency for the pandemic ends, officials said on Monday.

The administration has come under pressure from criminal justice reform activists and some lawmakers to revoke a Trump-era memo by the Justice Department’s Office of Legal Counsel, which said inmates whose sentences lasted beyond the “pandemic emergency period” would have to go back to prison.

But the Biden legal team has concluded that the memo correctly interpreted the law, which applies to about 4,000 nonviolent inmates, according to officials who spoke on condition of anonymity about sensitive internal deliberations.  Several officials characterized the decision as an assessment of the best interpretation of the law, not a matter of policy preference.

The official state of emergency is not expected to end this year because of a rise in new infections caused by the coronavirus’s Delta variant. But the determination means that whenever it does end, the department’s hands will be tied.

That leaves two options if those prisoners are not to be sent back into cells: Either Congress could enact a law to expand the Justice Department’s authority to keep them at home beyond the emergency, or President Biden could use his clemency powers to commute their sentences to home confinement.

The Biden team is said to be wary of a blanket, mass commutation, however, both because it would represent an extraordinary intervention in the normal functioning of the judicial system and it could create political risks if any recipient who would otherwise be locked up commits a serious crime.  Another option is case-by-case assessment for commutations, but the volume of work required to individually evaluate so many people is daunting.

When asked for comment, the White House responded with a general statement about the administration’s support for policies that can reduce incarceration. “President Biden is committed to reducing incarceration and helping people to re-enter society,” said Andrew Bates, a White House spokesman. “As he has said, too many Americans are incarcerated, and too many are Black and brown. His administration is focused on reforming our justice system in order to strengthen families, boost our economy and give people a chance at a better future.”...

The disclosure of the Biden legal team’s internal decision came as an ideologically broad range of advocacy groups — nearly two dozen organizations, including the American Civil Liberties Union, Amnesty International, FreedomWorks and the Faith and Freedom Coalition — stepped up pressure on the Biden administration not to recall inmates from home confinement when the emergency ends.

Notably, however, those organizations issued a letter framing their request in terms of Mr. Biden using his clemency powers to resolve the issue. “On the campaign trail and during your presidency, you have spoken about the importance of second chances,” according to the letter. “This is your opportunity to provide second chances to thousands of people who are already safely out of prison, reintegrating back into society, reconnecting with their loved ones, getting jobs and going back to school. We urge you to provide clemency now to people under CARES Act home confinement.”

I do not find this news especially surprising; if there was any considerable legal wiggle room here, I think the Justice Department would have spoken some time ago.  And, as this article highlights, I have sensed that a number of advocates have been talking up blanket clemency as the most fitting way to resolve this issue.  But I am always eager to highlight the point I made in this recent post, titled "Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?," that Congress readily could (and I think should) enact a statute that provides for the home confinement program to be extended beyond the end of the pandemic.

In addition, as I highlighted in this recent post, another option for case-by-case relief is through compassionate release motions.  This is how Gwen Levi got relief, and such motions have the potential to reduce sentences and not just allow these sentences to be served at home.  Of course "the volume of work required" for so many CR motions would be considerable, but the Justice Department could (and I think should) support and even bring sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A).

Some prior recent related posts:

• Notable OLC opinion on "Home Confinement of Federal Prisoners After the COVID-19 Emergency" 
• Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption
• Might Prez Biden use his clemency power relatively soon?
• New detailed polling reveals broad support for broad use of clemency power to commute sentences
• Effective review of (just some) issues surrounding home confinement for the Biden Justice Department
• FAMM urges AG Garland to prevent those on home confinement during pandemic from being returning to federal prison 
• Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?
• Hoping grandmothers and others on home confinement get compassionate consideration