Sentencing Law and Policy

More reason to think Justice Gorsuch might help SCOTUS pioneer criminal justice reforms

Regular readers have seen my regular postings about Justice Neil Gorsuch's notable votes in favor of the claims of federal criminal defendants (some of which I have linked below).  His work to date in criminal cases has me thinking that Justice Gorsuch could be a key vote and important voice helping SCOTUS pioneer many needed criminal justice reforms.  And this new USA Today article, headlined "Supreme Court Justice Neil Gorsuch decries lack of access to justice for many Americans," reinforces my hopefulness in this arena.  Here are excerpts:

Lawyers cost too much. Getting to trial takes too long.  Juries promised by the Constitution are rarely used.  And just try counting all the criminal laws on the books.

Those are among the provocative criticisms made by the Supreme Court's youngest associate justice, Neil Gorsuch, in a USA TODAY interview and his new book, "A Republic, If You Can Keep It."

Gorsuch, 52, is convinced that warning — reportedly issued by Benjamin Franklin after the Constitutional Convention — can be met, and the republic will be preserved. But the problems he observes in the justice system and what he describes as the nation's "crisis in civility" are obstacles he would like to see removed....

The book is, like the justice himself, a study in contrasts.  Folksy and self-deprecating, the court's lone westerner came from Colorado in 2017 with rhetorical guns blazing, amply filling the late conservative Associate Justice Antonin Scalia's seat on the bench.  It took him only two terms to lead his colleagues in dissents.

At the same time, Gorsuch has made peace with the court's liberals, often siding with Associate Justices Sonia Sotomayor and Ruth Bader Ginsburg in defense of the "little guy" being surveilled, accused, tried or convicted of a crime.

Gorsuch doesn't offer solutions for all the problems he identifies in the book.  But he expresses confidence that his judicial methodology — strictly following the words in the Constitution and federal laws rather than his preferred policies — is winning the day.  It's a method decried by many liberals as a means to produce conservative results, to which Gorsuch has a simple reply: "Rubbish!"...

Yet Gorsuch is anything but a go-along-to-get-along guy, as made clear by his expressed desire to fix what ails the nation's justice system.

Most Americans can't afford to hire a lawyer —  "I couldn’t afford my own services when I was in private practice," he writes — nor endure months or years of legal wrangling to reach trial. Too often, he says, defendants are forced to cut a deal with prosecutors or accept a judge's ruling rather than face a jury of their peers.

In a span of seven weeks last term, Gorsuch dissented twice from the court's refusal to hear Sixth Amendment challenges to criminal prosecutions.  One involved evidence he said was not subjected to proper testing and cross-examination.  The other involved a decision on restitution based on findings by a judge, not a jury.  He was joined both times by Sotomayor, perhaps the court's most liberal justice....

Still, Gorsuch has been a reliable member of the court's five-man conservative majority in major cases over the past two terms.  Those include 5-4 decisions upholding Trump's ban on travel from several majority-Muslim nations, barring public employee unions from collecting "fair share" fees from non-members, and removing federal courts from policing even the most extreme partisan election maps.

And when Chief Justice John Roberts joined the court's four liberal justices to deny the Trump administration's effort to add a question on citizenship to the 2020 census, Gorsuch joined the other conservatives in dissent.

During the interview, however, he highlighted cases in which he sided with liberals or when the justices' votes were jumbled beyond ideological explanation.  In most years, he notes, about 40% of cases are decided unanimously.  “Get nine people to agree on where to go to lunch!" he dares his inquisitor.  "It happens through collegiality and hard work and persuasion and thoughtfulness.”

A few prior related posts:

• Accounting Justice Gorsuch's votes (and opinions) so far this SCOTUS Term in big criminal cases 
• Taking more stock of the many shades of Justice Neil Gorsuch in criminal cases
• "Gorsuch Joins Court’s Liberals Over Protections for Criminal Defendants"
• Is it too early to conclude the new guy, Justice Neil Gorsuch, is going to often(?) favor federal criminal defendants in close cases? 

"Why America Needs to Break Its Addiction to Long Prison Sentences"

The title of this post is the headline of this recent Politico commentary authored by Ben Miller and Daniel Harawa." The piece carries the subheadline "Shorter sentences will end prison crowding and even reduce crime," and here are excerpts:

[A] pressing ... problem in our criminal legal system [is the] lack of meaningful mechanisms in place to allow people in prison to obtain release once they have proven to no longer pose a danger to our communities....  We have forgotten that our justice system is supposed to rehabilitate people, not just punish them....  Though some may point to parole as an option, the potential for release on parole has proven slim, with the federal government and 14 states having eliminated it completely.

For decades, while we made it increasingly difficult to obtain release, we have sent people to prison for longer and longer.  We became reliant on extreme sentences, including mandatory minimums, “three-strike” laws, and so-called truth-in-sentencing requirements that limit opportunities for people to earn time off their sentences for good behavior. As a result, the United States laps the world in the number of people it incarcerates, with 2.2 million people behind bars, representing a 500 percent increase over the past four decades, with 1 in 9 people in prison serving a life sentence....

[I]f we want to significantly reduce the number of people this country incarcerates, legislation is needed at the federal level and in every state to allow everyone after a certain period in prison the opportunity to seek sentence reductions. Sentence review legislation recognizes that as we have increased the length of prison sentences and limited the ability to obtain release, our prisons have become overwhelmed with people whose current conduct proves further incarceration is not in the public interest.

We increased sentence lengths and made it more difficult for people to be released because we were told it was needed for public safety.  But sending people to prison for long periods does not reduce crime. In fact, longer sentences, if anything, create crime.  David Roodman, a senior adviser for Open Philanthropy, reviewed numerous studies on the impact of incarceration and concluded that “in the aftermath of a prison sentence, especially a long one, someone is made more likely to commit a crime than he would have been otherwise.”

Not only are lengthy prison sentences ineffective at reducing crime, but they have devastated low-income and minority communities.  As the Vera Institute aptly put it: “We have lost generations of young men and women, particularly young men of color, to long and brutal prison terms.”  While black people are just 13-percent of the country’s population, they account for 40 percent of the people we incarcerate.

If the ineffectiveness of long prison terms or the impact on poor communities of color is not reason enough to revisit lengthy prison sentences, the financial drain of long prison terms is staggering.  For example, U.S. prisons spend $16 billion per year on elder care alone.  Billions of dollars are diverted to prisons to care for the elderly who would pose no real risk if released when that money could be going to our schools, hospitals, and communities.

Given this reality, we need to pursue every option that would safely reduce our prison population.  One proposal by the American Law Institute recommends reviewing all sentences after a person has served 15 years in prison.  Another example is the bill Sen. Cory Booker (D-N.J.) and Rep. Karen Bass (D-Calif.) introduced that would provide sentence review for anyone who has served more than 10 years in prison or who is over 50 years old.  Notably, neither proposal is restricted by the type of offense, which is critical, because to combat mass incarceration, to echo the Prison Policy Initiative, reform has “to go further than the ‘low hanging fruit’ of nonviolent drug offenses.”

The opposition to any sentence review policy is predictable.  Opponents will decry the danger of releasing “violent” people into the community.  This criticism is straight out of the failed tough-on-crime playbook that created the country’s mass-incarceration crisis in the first place.  It was this same message that pushed legislators and prosecutors for years to enact and seek extreme sentences that have overburdened prisons across the country.  This criticism rings hollow.

Measures that promote sentence review would not automatically release anyone.  Instead, people would be given a chance to show a court that they are no longer a danger to public safety.  A judge — after weighing all relevant circumstances, including hearing from any victims and their families — would then decide whether a person should be released....

Robust sentence review legislation that would help reduce both our prison population and the strain on government budgets must be part of every discussion about criminal justice reform.  Sister Helen Prejean has often said, “People are worth more than the worst thing they've ever done.”  Our policies should reflect the ability of people to change over the course of years — or decades — of incarceration.

After gun mandatories deemed unconstitutionally severe, former Blackwater guards get much lower terms at federal resentencing

This New York Times article, headlined "Three Ex-Blackwater Guards Are Resentenced in Iraq War Massacre," reports on high-profile resentencings that followed a (too-rare) ruling that the application of a severe federal mandatory minimum statute violated the Eighth Amendment.  The DC Circuit's significant Eighth Amendment ruling from 2017 is discussed in this post, and here is part of the press report on the resentencing:

Three former Blackwater security contractors were sentenced on Thursday to roughly half of their original 30-year prison terms for the deadly 2007 shooting of unarmed Iraqi civilians in Baghdad’s Nisour Square, widely seen as one of the darkest moments of the Iraq war.

The three former contractors — Dustin L. Heard, Evan S. Liberty and Paul A. Slough — had been convicted in 2014 of multiple counts of manslaughter for their roles in the massacre.  But in 2017, a federal appeals court vacated their sentences, saying the trial judge, Royce C. Lamberth of the Federal District Court for the District of Columbia, erred in invoking a law that requires 30-year sentences for such offenses that involve machine guns....

Prosecutors on Thursday nevertheless asked Judge Lamberth to resentence Mr. Slough to 30 years, and the other two men to slightly less.  Defense lawyers asked him to instead sentence their clients to the roughly five years they had already served.  The three defendants, dressed in orange prison garb, asked to be sent home to their families.

But after a hearing that lasted most of the day and played out before a courtroom packed with dozens of family members, friends and other supporters of the men, the judge rejected those ideas. He instead sentenced Mr. Heard to 12 years and seven months; Mr. Liberty to 14 years; and Mr. Slough to 15 years. In the United States, Judge Lamberth said, “We hold our armed forces and our contractors accountable for their actions.”...

The government had hired Blackwater Security to escort State Department officials through a chaotic war zone in Iraq.  Shortly after the convoy pulled into Nisour Square, the contractors began shooting civilians with machine guns and firing grenades. While the contractors claimed they had come under fire by insurgents, prosecutors said — and a jury agreed — that the evidence showed there had been no incoming fire.

Prosecutors at the hearing on Thursday emphasized that the firing went on for 20 minutes, indicating that a moment of panic had turned into reckless disregard for human life. But they acknowledged that the security contractors had stopped firing at different times.  Prosecutors said that Mr. Slough was jointly responsible for 13 of the deaths and 17 of the wounded, Mr. Liberty for eight of the deaths and 11 of the wounded, and Mr. Heard for six of deaths and 11 of the wounded.

The jury found that the chaotic hail of machine-gun fire and grenades targeting civilians began when another contractor, Nicholas A. Slatten, shot the driver of a white Kia without provocation. Mr. Slatten was retried and convicted of first-degree murder last year, and Judge Lamberth sentenced him last month to life in prison.

During the hearing, Judge Lamberth praised the character of the three defendants before him, calling them “fine young men” but for the aberration of their poor judgment and reckless actions in Nisour Square. But he said he had to balance that assessment against the significant loss of life that resulted from their recklessness and poor judgment, as well as the need to uphold the rule of law.

While the defense objected to the sentences, making clear that another appeal was likely, they and the judge also discussed the possibility that he would recommend to the Bureau of Prisons that it waive certain security restrictions associated with manslaughter convictions.  If those are waived, the three could benefit from a rule permitting certain inmates with less than 10 years left on their sentences to serve the remainder in minimum-security prison camps....

One of the legal issues facing the judge was prosecutors’ contention that each of the defendants should receive an additional 10 years under the law that enhances penalties for crimes involving the use of a firearm.  Defense lawyers said that law should not apply to a war zone case for the same reason that the appeals court rejected the use of the machine-gun law in the case, and Judge Lamberth agreed with the defense.

Still, the judge also quoted lines from the appeals court’s 2017 opinion saying the defendants can and should be held accountable for the death and destruction they had caused: “We by no means intend to minimize the carnage attributable to Slough, Heard and Liberty’s actions.  Their poor judgments resulted in the deaths of many innocent people.  What happened in Nisour Square defies civilized description.”

Prior related post:

• Split DC Circuit finds unconstitutionally excessive 30-year mandatory minimum sentences for Blackwater contractors who killed Iraqis

Exploring how compassionate release after FIRST STEP might indirectly help with persistent federal clemency problems

RJ Vogt over at Law360 has this lengthy new piece discussing both federal clemency and one of my favorite parts of the FIRST STEP Act under the headline "How Courts Could Ease The White House's Clemency Backlog."  I recommend the piece in full, and here are some extended excerpts:

More than 11,430 federal prisoners, many of them nonviolent offenders serving life sentences, have commutation petitions pending at the U.S. Department of Justice’s Office of the Pardon Attorney, or OPA. Another 2,393 applications for presidential pardons, which are generally issued after someone completes a sentence, are also pending.

Both numbers mark record highs for a clemency system that America’s founding fathers designed to be, in the words of Alexander Hamilton, “as little as possible fettered or embarrassed.”

Today, access to clemency is anything but. Sam Morison, a former OPA attorney who now helps clients file petitions, says the Justice Department uses its oversight to stymie petitions before they ever reach the president’s desk. “The DOJ is to blame for the backlog,” Morison said. “They view their role as protecting the prosecutorial prerogative because, let's face it, that's what they do.”

Some legal scholars believe the First Step Act, a landmark criminal justice reform bill President Donald Trump signed into law in December, created a way for inmates to bypass DOJ oversight by asking judges for sentence reductions based on the circumstances of their cases.

But the concept hasn’t been tested in large numbers yet, and in the meantime, the odds of getting presidential relief are approaching zero. The office that granted 41% of all pending and newly filed clemency petitions in 1920 is on track to grant less than 0.1% under Trump....

Much of today’s epic backlog can be traced to President Barack Obama’s 2014 Clemency Initiative.

The project, which was designed to identify nonviolent federal prisoners who would not threaten public safety if released, got off to a rocky start when the DOJ sent the entire federal prison population a notice of the initiative and a survey to gauge inmate interest. The DOJ’s failure to “exclude inmates who were clearly ineligible for consideration” led to an overwhelming response, according to a 2018 inspector general report.

Over the last 33 months of Obama’s presidency, OPA received more commutation petitions than it had in the previous 24 years combined. At the same time, pardon petitions doubled, from a yearly average of 276 to an average of 521....

Shon Hopwood, a professor at Georgetown University Law Center, believes the First Step Act created a new path to commuted sentences... [H]e cited the First Step Act’s expansion of compassionate release as a more accessible option....

Under the First Step Act, a defendant no longer needs the bureau's backing. If the director won’t make the request for an inmate within 30 days of being asked, the new law allows the defendant to file a motion for resentencing directly in court. In a forthcoming law review article, Hopwood writes that judges can now consider “extraordinary” reasons for compassionate release without having to wait for Bureau of Prisons approval.

“Those serving long or life without parole sentences for marijuana trafficking offenses are the first to come to mind,” he wrote. “Another group ... might be those sentenced to harsh mandatory minimum sentences, even though the facts of their crimes made them far less culpable than someone committing a run-of-the-mill offense.”...

Margaret Love, U.S. pardon attorney from 1990-1997, told Law360 that the concept is “the hidden, magical trapdoor in the First Step Act that has yet to come to everyone’s attention.”

“This has obviated the need for the clemency process to take care of the great majority of commutation cases,” she said.

Hopwood acknowledged that prosecutors are likely to oppose these motions, but said they could provide a safety valve in which the judiciary simultaneously helps alleviate mass incarceration and the OPA’s commutation workload.

A few prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

• Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court? 
• Sad start to what should become happier compassionate release tales after passage of FIRST STEP Act 
• Encouraging new reports about encouraging new compassionate release realities thanks to FIRST STEP Act
• Highlighting how judges can now bring needed compassion to compassionate release after FIRST STEP Act 
• Federal judge pens extraordinary and compelling order requesting US Attorney to vacate old stacked 924(c) conviction in extraordinary and compelling case 
• Is anyone collecting and analyzing sentence reduction orders under 3582(c)(1) since passage of the FIRST STEP Act?
• Good day for thinking hard about sentencing second looks and second chances
• New District Court ruling confirms that "any extraordinary and compelling reasons" can now provide basis for reducing imprisonment under 3582(c)(1)(A)
• District Court finds statutory sentence reform among "extraordinary and compelling reasons" for reducing LWOP sentence under 3582(c)(1)(A)

"Whom the State Kills"

The title of this post is the title of this notable new empirical paper authored by Scott Phillips and Justin Marceau now available via SSRN. Here is its abstract:

Through original quantitative research we show that persons convicted of killing a white victim and sentenced to death are more likely to be executed than persons convicted and sentenced to death for killing a black victim.  Previous research documents numerous forms of arbitrariness and racial disparity in the administration of the modern death penalty, but focuses exclusively on the charging and sentencing patterns of prosecutors and juries.  Previous research also reveals that implicit bias operates within the institutions tasked with seeking and obtaining sentences of death.  Our original research shows that the problem of disparate racial outcomes is actually exacerbated through the work of our most trusted check on the death penalty, appellate courts.

Building on David Baldus’s storied dataset from Georgia, we demonstrate that the racial disparities he discovered in the penultimate stage of the case — death sentences — were amplified in the ultimate stage of the case — executions.  Combining both phases reveals a stunning pattern: the execution rate is roughly 17 times greater in white victim cases than black victim cases.  Although Baldus could not have known how the cases would unfold post-sentencing, our findings indicate that the racial disparities described in McCleskey v Kemp (1987) underestimated the extent of the death penalty’s arbitrariness problem.

Notable Washington Supreme Court discussion of recidivist LWOP sentences while rejecting challenge to use of young adult "first strikes"

Last fall, the Washington Supreme Court showed its willingness to strike down various extreme sentences when it concluded the state's death penalty administration was so arbitrary as to be violative of the state constitution, and soon thereafter in a distinct ruling decided to categorically bar the imposition of a juvenile life without parole based again on the state constitution.  But earlier this month, this Court refused to extend this constitutional jurisprudence to LWOP sentences imposed under its recidivist statutes in Washington v. Moretti, No. 95263-9 (Wash. Aug 15, 2019) (available here).  Here is how the opinion for the unanimous Court gets started and concludes:

Under the Persistent Offender Accountability Act(POAA), the third time a person is convicted of a "most serious offense," they mustbe sentenced to life in prison without the possibility of parole.  RCW9.94A.030(38)(a), .570.  This statute is colloquially known as the "three strikes andyou're out" law.  State v. Thome, 129 Wn.2d 736, 746, 921 P.2d 514 (1996). These three cases each ask whether it is constitutional to apply the POAA to people whowere in their 30s or 40s when they committed their third strike but were young adultswhen they committed their first strike.

We hold that it is constitutional. Article I, section 14 of the Washington Constitution does not require a categorical bar on sentences of life in prison withoutthe possibility of parole for fully developed adult offenders who committed one oftheir prior strikes as young adults. We also hold that the sentences in these cases arenot grossly disproportionate to the crimes....

Petitioners argued that sentencing adult offenders to mandatory sentences of life without the possibility of parole under the POAA when one of their prior strike offenses was committed as young adults is either cruel, in violation of article I, I section 14 of the Washington Constitution, or cruel and unusual, in violation of the Eighth Amendment to the United States constitution. We hold that it is not.

The petitioners have not shown a national consensus against this sentencing practice, and our own independent judgment confirms that there is nothing to suggest that these petitioners are less culpable than other POAA offenders.  The sentences in these cases do| not categorically violate the Washington Constitution.  Because our I constitution is more protective than the federal constitution in this context, we need not analyze this question under the Eighth Amendment.  Finally, we hold that these sentences are not grossly disproportionate to the offenses under the Fain factors.

Adding to the intrigue of this ruling is a thoughtful concurrence by Justice Yu that was joined by two other members of the court which starts this way:

This case touches on the issue of sentencing individuals to life without the possibility of parole for a wide range of lower level offenses.  I agree with the court's narrow holding that there is currently no categorical constitutional bar to the inclusion of an offense committed as a young adult as a predicate for purposes of the Persistent Offender Accountability Act ("Three Strikes Law"), ROW 9.94A.570.   But a punishment that may be constitutionally permissible today may not pass muster tomorrow.  I therefore write separately to express my growing discomfort with the routine practice of sentencing individuals to life without the possibility of parole, regardless of the offense or the age of the offender. 

This court's decision in State v, Gregory limited the array of punishments that may be imposed for the most serious offenses by eliminating the death penalty. 192 Wn.2d 1, 427 P.3d 621 (2018) (plurality opinion).  Every death sentence in this state has been commuted to the next most severe punishment available — life without the possibility of parole. Id. at 36.  As a result, the range of offenses that require imposition of the most severe punishment the state can impose has been expanded.  Persistent offenders who have committed robberies and assaults are now grouped with offenders who have committed the most violent of crimes, including aggravated murder and multiple rapes.  The gradation of sentences that once existed before Gregory have now been condensed.  As a result, a serious reexamination of our mandatory sentencing practices is required to ensure a just and proportionate sentencing scheme.

Sixth Circuit judge in separate opinion makes case for Eighth Amendment precluding execution of persons under 21 at time of murder

A helpful reader made sure I saw the notable concurring opinion of Sixth Circuit Justice Stranch at the end of a panel opinion rejecting a capital defendant's habeas appeal in Pike v. Gross, No. 16-5854 (6th Cir. Aug. 22, 2019) (available here). Here are the first and last paragraph of Judge Stranch's opinion, which highlight who readers might want to check out what appears in between:

I join the opinion in this case but write separately because it presents an issue with which our society must be concerned — whether 18-year-olds should be sentenced to death. Had she been 17 rather than 18 at the time of her crime, like her codefendant Tadaryl Shipp, Christa Pike would not be eligible for the death penalty....

For these reasons, I believe that society’s evolving standards of decency likely do not permit the execution of individuals who were under 21 at the time of their offense.  But, because we review this case under the strictures of AEDPA, we may grant Pike relief only if the state court’s adjudication of her case was either (1) contrary to or unreasonably applied Supreme Court precedent, or (2) “resulted in a decision that was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d).  And the Supreme Court has not extended Roper to 18-year-olds.  I therefore reluctantly concur because I agree that the state court’s decision denying Pike’s postconviction petition did not unreasonably apply Strickland’s prejudice prong.

"How Do Prosecutors (and the Rest of Us) Get Sentencing So Wrong?"

The title of this post is the title of this lengthy new commentary at The Crime Report authored by James Doyle.  Here are excerpts: 

When enlightened prosecutors are forming Conviction Integrity Units to reassess old convictions, initiating Sentence Review Units to re-examine distended sentences would save money, and lead to the release of prisoners who are no longer dangerous.  It’s a very good idea, even if the problem is not as simple as it might seem.  In many states, a D.A. who has identified a grotesquely excessive sentence has no procedural avenue available for cutting the sentence. New legal tools will have to be developed....

But [even if] we cut the prison population by reviewing old sentences and releasing prisoners, how do we avoid quickly replacing them?  Don’t we have to work to understand why the horrific sentences were imposed in the first place?  Why our predecessors zigged when we know that they should have zagged?

For me, the best way to approach this question is to take a few pages from the books of medicine and aviation and follow every finding of an unjust sentence with an all-stakeholders’ forward-looking, non-blaming learning review, focused on avoiding repetition.  When a D.A. uncovers a mistaken sentence it should be treated as a “Sentinel Event” — as an opportunity to learn by mobilizing the perspectives of all ranks, in all of the professional roles implicated: cops, prosecutors, defenders, probation offices, and courts.

And we should hear from the victims, from the communities the sentences were designed to protect, and from the researchers who marshal the data relevant to the decisions and their aftermaths. (It wouldn’t hurt to hear from the defendants too.)...

My prediction is that we will find that there was a moment in almost every case that a new Sentencing Review Unit identifies when human actors in the criminal justice system had a choice about whom to arrest, what to charge, which forum (state or federal) to bring the charge in, or what sentencing provision to invoke....

What we actually face is the work product of hard-pressed cops, lawyers, probation officers, and judges trying to get through their days.  They were not driven by ideological commitments or racist theories.  But they were under pressure — from the politicians and the media, from their caseloads, the docket lists, their peers, and administrators thirsty for “outputs.”

They didn’t set out to do extraordinary harm to individual minority defendants; it’s worse than that.  The fact is they didn’t care enough about any individual minority defendant to target one. They barely saw them. These players were seeking their own safety as much as they are seeking anything, and their strongest allegiance was to the path of least resistance.

They wanted to get to get rid of the damned case without a trial, and to move on to the next one.  Then, tomorrow, they would be able to handle that next case in the same way, as long as they managed to preserve the “going rate” today.  Long prison sentences were a weapon in their daily struggles, not their goal.

Mass incarceration was not produced by a clap of legislative thunder; it was produced by a process of drift — even if that process was assisted by new legislative levers. Each day’s longer sentence became the new departure point for the next day’s — which, in turn, was just a little bit longer. So, the new prisoner would be there to be counted next year too.  Who brought that about?  Everybody....

New Sentence Reviews will find individual cases where a prosecutor decided on an extreme sentence and rammed it through.  But more often, an extreme sentence involves acts (and omissions) from across the range of criminal justice operators involved in a case.

Each participant in a sentencing — cop, probation officer, prosecutor, defender, judge — makes choices that affect everyone else’s work.  And all of these players are buffeted simultaneously by external environmental factors: caseloads rise, budgets fall, treatment programs close, spasmodic media pressure ratchets up, options narrow....

A Sentencing Review Unit can do crucial work in correcting injustices.  But we ought to remember what is an axiom to the people who work in the field of public safety: Nothing is ever permanently “fixed”; your “fix” is under attack by its environment the moment it you put it in place.

Another perspective on the scope of FIRST STEP Act crack resentencing

A few weeks ago in this post I noted the Fifth Circuit ruling in US v. Hegwood addressing intricate question of whether, when Congress finally provided for complete retroactivity of the Fair Sentencing Act (FSA) in section 404 of the FIRST STEP Act, it enabled a district court is to conduct a full resentencing or a more limited sentencing modification for eligible offenders.  The Fifth Circuit panel in Hegwood affirmed an approach FSA retroactivity as involving only a modest sentence modification proceeding rather than a complete resentencing. 

This morning I got an email flagging an earlier district court ruling US v. Payton, No. 07-20498-1, 2019 WL 2775530, at *4 (E.D. Mich. July 2, 2019), that goes the other way on this important and consequential issue.  Though predating Hegwood, Payton provides a useful overview and perspective that seemed worth reprinting to create a counterpoint to Hegwood:

District courts across the country are wrestling with this issue.  Many courts have ruled that the First Step Act, in conjunction with § 3582(c)(1)(B), does not authorize a full resentencing; broadly applying Dillon, they have found that a court’s authority under the First Step Act is as constrained as its limited authority under § 3582(c)(2). See Rose, 2019 WL 2314479, at *6 (internal citations omitted).

But a growing number of courts have found just the opposite — that the First Step Act vests the Court with broad discretion to resentence defendants considering the § 3553(a) factors, including the case law and Guidelines in effect today.  See, e.g., United States v. Stone, No. 96-cr-403, 2019 WL 2475750, at *2 (N.D. Ohio June 13, 2019); United States v. Biggs, No. 05-cr-316, 2019 WL 2120226, at *3 (N.D. Ill. May 15, 2019); Simons, 375 F. Supp. 3d 379; United States v. Dodd, 372 F. Supp. 3d 795, 797–98 (S.D. Iowa Apr. 9, 2019); United States v. Powell, 360 F. Supp. 3d 134, 140 (N.D.N.Y. 2019); United States v. Newton, No. 02-cr-30020, 2019 WL 1007100, at *5 (W.D. Va. Mar. 1, 2019); see also United States v. Booker, No. 07 CR 843-7, 2019 WL 2544247, at *3 (N.D. Ill. June 20, 2019); United States v. Black, No. 04-cr-100, 2019 WL 2402969, at *5 (E.D. Va. June 7, 2019); Rose, 2019 WL 2314479, at *7; Shelton, 2019 WL 1598921, at *2....

The Court agrees with Defendants that the only way to impose a reduced sentence is to consider the § 3553(a) factors and Guidelines, including the defendant’s record in prison. See Biggs, 2019 WL 2120226, at *3 (“Because the potential reduced penalties for covered offenses could influence the range of recommended penalties for non-covered offenses, ‘impos[ing] a reduced sentence as if ... the Fair Sentencing Act ... were in effect’ entails resentencing on all counts.”); see also Pepper v. United States, 562 U.S. 476, 481 (2011) (holding that “a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation and that such evidence may, in appropriate cases, support a downward variance from the now-advisory Federal Sentencing Guidelines range.”).

This interpretation is in keeping with the purposes of the First Step Act which was enacted, in part, to: provide a remedy for individuals subjected to overly harsh and prejudicial penalties for crack cocaine offenses; decrease the number of people caged in our overcrowded prisons largely because of the War on Drugs; and save taxpayer dollars.  See United States v. Allen, No. 3:96-CR-00149, 2019 WL 1877072, at *3 (D. Conn. Apr. 26, 2019); Simons, 375 F. Supp. 3d at 389.

It seems to me quite possible that this issue could be the first (of many?) matters related to the implementation of the FIRST STEP Act that makes its way to the US Supreme Court.

Prior related post:

• Fifth Circuit articulates limiting account of FIRST STEP Act crack resentencing 

"More than half of Michigan juvenile lifers still wait for resentencing"

The title of this post is the title of this notable recent report from the Detroit Free Press spotlighting how slow the state has been to implement the Supreme Court's Eighth Amendment rulings in Miller and Montgomery limiting the use of LWOP for juvenile offenders.  I recommend the piece in full, and here is how it gets started:

Three and a half years after the U.S. Supreme Court ruled that juvenile lifers should have the opportunity to be re-sentenced and come home, more than half in Michigan are still waiting to go before a judge to learn their fate, according to a Free Press analysis.  That means nearly 200 inmates are waiting for a judicial review.

“We are not resolving cases at the rate that you would hope, given that the United States Supreme Court said these sentences should be rare," said Tina Olson, an attorney with the Michigan State Appellate Defender Office (SADO), whose office is representing roughly two-thirds of the state’s cases.

In 2012, the court ruled in Miller v. Alabama that juveniles should no longer be sentenced to mandatory life terms, citing developmental differences in the teenage brain, as well as the ability for rehabilitation.  The high court doubled down on the decision in January 2016, ruling in Montgomery v. Louisiana that the Miller opinion should be applied retroactively.

While the 2016 Montgomery decision should have resulted in a clear-cut path for juvenile lifers, the system remains speckled with question marks.  And since the opinion left the application of the ruling up to each state, there is little agreement on what this process should look like.  Take, for example, Philadelphia County in Pennsylvania, which had almost as many juvenile lifers as the entire state of Michigan.  It is expected to complete all but 10 of its resentencing cases by the end of the summer.  Not a single juvenile lifer in the county has been given a new life sentence so far.

By and large, prosecutors in Michigan defend the slower process, contending they are thoughtfully weighing each case.  "We tried to take a serious look at the criteria set forth in Miller, and put those factors into play when making those decisions on each case," said Kent County Prosecutor Christopher Becker, whose office was responsible for making sentencing recommendations for 23 defendants.  Thirteen were originally recommended for continued life sentences — one was subsequently re-evaluated and changed to a term of years.

"I don’t think there is anything wrong with the pace," he said, explaining that a good number of the state's juvenile lifers have not yet served 25-years — the minimum requirement for resentencing — and therefore getting them before a judge is not as paramount.  Only four of the 23 juvenile lifers in Becker’s county, for example, have served 25 years so far.

While the state has made progress around resentencing — as of July 1, 86 of the state’s 354 juvenile lifers had been released, a 300% increase since fall 2017 — defense attorneys and a new crop of progressive prosecutorial candidates are raising questions.  Olson, and others like her, point to the fact that in July 2016, when Michigan prosecutors had to submit their resentencing recommendations, they, as a whole, requested continued life sentences for 66% of the state’s juvenile lifers — a figure that appears incongruous with the Supreme Court’s ruling that the sentence should just be reserved for "the rare juvenile offender whose crime reflects irreparable corruption."

While prosecutors have been able to walk back and change recommendations for continued life, and judges can rule against a prosecutor's recommendation, the original sentences more or less placed defendants on a slower track, as those originally recommended for a resentencing (known as a term of years) were prioritized in the process.  The 66% that were slotted for continued life were, therefore, de-prioritized.

Under Michigan state law, a recommendation of term of years goes directly to a judge for sentencing, while a recommendation of continued life is a much more time-consuming legal process that can involve a hearing, evidence and witnesses.  For several years, Michigan criminal justice players were debating whether these hearings should be heard by a judge or a jury — an uncertainty that, until the Michigan Supreme Court weighed in last summer, prompted many prosecutors to place such cases on hold.

And so, while there are several factors that have contributed to the slow resentencing process — clunky bureaucracy, disagreements over procedures, and a lack of an official database tracking the process — the original resentencing recommendations have been highlighted as a major contributing factor. The first in a litany of interconnected holdups.

"The Twenty-First Century Death Penalty and Paths Forward"

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

Today, states are moving closer to another moment of critical decision-making in charting the course of the death penalty in the United States.  Unlike the sudden and dramatic immediacy of Furman, however, this moment is arriving through a slower and quieter progression, or perhaps more accurately a deceleration.  While not abolished, in many states application of the death penalty is grinding or has ground to a halt.  If the status quo holds, the vast majority of defendants who are sentenced to death by the states will instead live out their natural lives in prison for decades dying of old age in prison while still waiting on death row with a variety of challenges still pending in the courts.

This reality presents an opportunity, or perhaps more accurately a responsibility, for renewed reflection by state legislators.  There at least three clearly discernable paths forward that states could follow.  One is to continue the present course with states maintaining the status quo which leads to some persons who are sentenced to death being executed often after decades on death row while most death-row inmates die from natural causes in prison.  Two, states can abandon the death penalty in favor of the maximum sentence being life without the possibility of parole.  Three, states can streamline the process for addressing legal challenges after a defendant has been convicted and sentenced to death to prevent decades of delay before executions are carried out.

In seeking to derive a better understanding of the current realities of actual application of death penalties and to explore the potential paths forward for the states, this article begins in Section I by addressing delayed application of the death penalty in death penalty states.  Section II next explores the transformation that has occurred in the interval between sentencing and execution from colonial America to the present.  In doing so, Section II addresses the reasons for the significant elongation of the interval between sentencing and execution that has occurred over the last four decades. Section III examines some of the deleterious consequences that arise from these delays for those sentenced to death, the families of victims, and the states themselves.  Section IV begins to delineate that paths that are available to the states in moving forward, considering some of the pitfalls and possibilities.

Federal district court orders Missouri to improve parole procedures to comply with Miller and Eighth Amendment

As reported in this local article, a "federal court has ordered Missouri to overhaul how it handles the parole process for offenders who committed violent crimes as a minor."  Here is more about a notable ruling:

U.S. District Judge Nanette K. Laughrey issued declaratory and injunctive relief, ordering the Missouri Probation and Parole Board to improve transparency, accountability, and training for youthful offender parole hearings.

“Specifically, the Court found that a number of Defendants’ policies, practices, and customs combine to deprive those serving [juvenile life without parole] sentences of a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,” the 23-page order states.

The judgment included nearly two dozen procedures — developed through mediation — the state is required to “promptly implement.”...  The Missouri Probation and Parole Board has already adopted some of the procedures, such as allowing note taking during hearings.

The extensive changes come as a result of a class action lawsuit, Brown v. Precythe, filed by the MacArthur Justice Center, targeting the parole board’s alleged failure to comply with state and federal law when it comes to juvenile offenders serving mandatory life without parole sentences.

“This is a significant and long-awaited victory,” said Amy E. Breihan, MacArthur Justice Center’s Missouri director. “Seven years after the Supreme Court invalidated these juvenile [life without parole] sentences, Missouri is finally being held accountable for providing impacted folks a meaningful and realistic opportunity for release.”...

In 2016, SB 590 was passed by the Missouri General Assembly and signed into law.  The bill, in part, allows offenders sentenced as a juvenile to life without parole prior to Aug. 28, 2016, to “submit to the parole board a petition for a review of his or her sentence, regardless of whether the case is final for purposes of appeal, after serving twenty-five years of incarceration on the sentence of life without parole.”

The original lawsuit alleged the parole board treated those individuals “with arbitrary and cruel practices.”  The judge sided with the inmates, ordering an overhaul of how the parole hearings are handled.  “Perhaps the most important part of the order,” said Breihan, “is that it prohibits the Parole Board from denying parole based solely on the seriousness of the offense, and requires them to make decisions through a youth-focused lens. Indeed, these decisions should be based on who these men and women have become over time, not their worst act as children.”

The full 23-page court order can be found at this link.

Fifth Circuit articulates limiting account of FIRST STEP Act crack resentencing

A helpful colleague made sure I did not miss the notable Fifth Circuit opinion on FIRST STEP Act resentencing this past week in US v. Hegwood, No. 19-40117 (5th Cir. Aug 8, 2019) (available here). Congress finally provided for complete retroactivity of the Fair Sentencing Act (FSA) in section 404 of the FIRST STEP Act, but the language of that section left unclear whether a sentencing court is to conduct a full resentencing under the Act or a more limited sentencing modification for eligible offenders. District courts have been dealing with this resentencing question in various ways, and the Fifth Circuit panel ruling in Hegwood may be the first to address the issue. Here is its key passages:

This appeal concerns the First Step Act, in which Congress permitted a sentencing court to “impose a reduced sentence as if . . . the Fair Sentencing Act of 2010 . . . were in effect at the time the covered offense was committed.” The issue is whether district courts are authorized to conduct a plenary resentencing, which would include recalculating the Sentencing Guidelines range as if the defendant were being sentenced for the first time under present law, or whether courts are limited to reductions resulting from the Fair Sentencing Act. Concluding that the First Step Act does not allow plenary resentencing, we AFFIRM....

Hegwood argues that a new sentence under the First Step Act requires a Guidelines calculation to be made that is correct as of the time of the new sentencing, and Section 3553(a) factors are to be applied anew....

It is clear that the First Step Act grants a district judge limited authority to consider reducing a sentence previously imposed. The calculations that had earlier been made under the Sentencing Guidelines are adjusted “as if” the lower drug offense sentences were in effect at the time of the commission of the offense. That is the only explicit basis stated for a change in the sentencing. In statutory construction, the expression of one thing generally excludes another. TRW Inc. v. Andrews, 534 U.S. 19, 28-29 (2001).  The express backdating only of Sections 2 and 3 of the Fair Sentencing Act of 2010 — saying the new sentencing will be conducted “as if” those two sections were in effect “at the time the covered offense was committed” — supports that Congress did not intend that other changes were to be made as if they too were in effect at the time of the offense.

These limits make the First Step Act similar to Section 3582(c), which opens the door only slightly for modification of previously imposed sentences for certain specified reasons, including the lowering by the Sentencing Commission of the sentencing range that was in effect for the defendant at the time of initial sentencing. 18 U.S.C. § 3582(c)(2).  The Supreme Court held that “Section 3582(c)(2)’s text, together with its narrow scope, shows that Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Dillon v. United States, 560 U.S. 817, 826 (2010).

We do not see any conflict in this interpretation of Section 404 of the First Step Act with the provisions of 18 U.S.C. §§ 3582 and 3553. The district court under Section 3582(a) is only required to consider the Section 3553(a) factors “to the extent that they are applicable.” The government, relying on the fact that the First Step Act gives the court discretion whether to reduce a sentence, argues that the ordinary Section 3553(a) considerations apply to determine whether to reduce the defendant’s sentence.

The mechanics of First Step Act sentencing are these.  The district court decides on a new sentence by placing itself in the time frame of the original sentencing, altering the relevant legal landscape only by the changes mandated by the 2010 Fair Sentencing Act.  The district court’s action is better understood as imposing, not modifying, a sentence, because the sentencing is being conducted as if all the conditions for the original sentencing were again in place with the one exception.  The new sentence conceptually substitutes for the original sentence, as opposed to modifying that sentence.

As a matter of statutory interpretation, I can understand why the Fifth Circuit is inclined in Hegwood to approach FSA retroactivity as only a modest sentence modification proceeding.  But as a matter of sound policy and practice, I think it makes more sense to approach these cases as full resentencings with all subsequent changes in both  applicable sentencing laws and relevant sentencing facts available for, an integral to, the judge's resentencing decision.  Otherwise, as seems to be the case in Hegwood, a defendant already subject to the undue harshness of the old 100-1 crack mandatory minimums is still forced to endure the undue harshness of other problems with the guidelines that have been fixed since his original sentencing.

I am hopeful, but not optimistic, that only a small number of defendants will be adversely impacted by the Hegwood approach to resentencing. And this case provides yet another example of how implementation of statutory sentencing reform can often be just as important for some defendants as the reform itself.

You be the Prez: would you grant a commutation to former Gov Blago?

Prez Trump has a distinctive and sometimes disturbing way of keeping policy and political stories interesting, and his use of the clemency power is no exception.  The latest developments on this front, which prompt the question in the title of this post, concern imprisoned former Illinios Gov Rod Blagojevich. Prez Trump has been talking up a possible commutation for some time, and this Politico article, headlined "Illinois Republicans urge Trump to keep Blagojevich in prison," has me suspecting that the Prez may not be prepared to "walk the walk" after talking the clemency talk.  Here are excerpts:  

Illinois’ delegation of House Republicans on Thursday urged President Donald Trump not to commute the sentence of Rod Blagojevich, the state’s former governor, after the president told reporters he was considering doing so. In a statement, Reps. Darin LaHood, John Shimkus, Adam Kinzinger, Rodney Davis and Mike Bost said that commuting Blagojevich’s sentence “sets a dangerous precedent and goes against the trust voters place in elected officials.”

“It’s important that we take a strong stand against pay-to-play politics, especially in Illinois where four of our last eight Governors have gone to federal prison for public corruption,” the congressmen wrote.

The state’s Republican delegation previously wrote to Trump in June 2018, also to oppose a presidential commutation of Blagojevich’s sentence. The Thursday statement renewed the call after Trump told reporters a day earlier that he felt Blagojevich’s seven years in prison had been enough.

“I thought he was treated unbelievably unfairly,” Trump said Wednesday. “He’s been in jail for seven years over a phone call where nothing happens.”

Blagojevich, a Democrat who served in the House before he was elected governor, was impeached and removed from office in 2009, and was later convicted on multiple charges of corruption, including trying to sell the U.S. Senate seat vacated by Barack Obama. During his trial, a recorded phone conversation revealed him saying: “I've got this thing, and it’s fucking golden. I’m just not giving it up for fucking nothing.” He was sentenced to 14 years in prison in a case that became a media frenzy. His family has tried multiple times to appeal the sentence.

Trump dismissed the phone call as “braggadocio” and nothing outside the norm of what has been said privately by several other elected officials.

On Thursday night, he tweeted that “many people” had asked him about commuting the sentence on account of its severity and that White House staff were looking into the matter. Prosecutors at the time of his trial argued that Blagojevich qualified for 30 years to life, but they recommended less time out of concern for his family.

As president, Obama declined to commute the sentence, and the Supreme Court declined to hear the case on more than one occasion. Trump, however, has raised the possibility of commutation in the past. In their 2018 letter opposing such a move, the Illinois Republicans — then including Peter Roskam and Randy Hultgren — said commuting the sentence would compromise trust in American democracy.

Notably, former Gov Blago has already served the equivalent of more than eight years of a federal prison sentence, which is considerably longer than the prior Gov George Ryan served for seemingly more extensive official misdeeds.  And I have a hard time seeing just how public safety (or "American democracy") is really served by his service of another half decade in federal prison. But, as the question in this post is meant to prompt, I am eager to hear others' thoughts on this matter.

Federal circuit judge laments at lengthy how plain error review now works for guideline errors

A helpful reader made sure I did not miss the concurring opinion authored by Fifth Circuit Judge Oldham this week in US v. Del Carpio Frescas, No. 17-50245 (5th Cir. July 29, 2019) (available here). The Fifth Circuit panel vacated a sentence on plain error review based on a small guideline calculation problem. Judge Oldham seems quitr grumpy that applicable SCOTUS precedent required this reversal, and he authors a 20-page concurrence to explain why. That opinion starts this way:

Today’s result might surprise the uninitiated: Based on a one-point offense-level miscalculation in the advisory Guidelines, the United States must restart its criminal-justice machinery so it can fix a mistake that’s supposedly so “plain” it cannot be ignored but also so subtle that del Carpio ignored it below.  This result is particularly surprising because, not so long ago, the Supreme Court told us that “[m]eeting all four prongs of [plain-error review] is difficult, as it should be.” Puckett v. United States, 556 U.S. 129, 135 (2009).  But this case illustrates it’s no longer that difficult.  So I agree current Supreme Court precedent requires that del Carpio be resentenced.  I write separately to explain how we got here.

"Every D.A. in America Should Open a Sentence Review Unit"

The title of this post is the title of this notable new New York Times commentary authored by James Forman Jr. and Sarah Lustbader. Here are excerpts:

What can we do to shrink our prison population, the world’s largest?

Most answers to that question point forward: They look to reduce future arrests, prosecutions and sentences. But such changes, while desperately needed, do nothing for the hundreds of thousands of people who are already serving long sentences in America’s expensive and overcrowded prison system.

And make no mistake about it: There are a lot of people serving extraordinarily long sentences. The state prison population grew 222 percent from 1980 to 2010; the National Research Council attributes half of that growth to an increase in incarceration time. The Sentencing Project reports that one in seven American prisoners is serving either a life sentence or its functional equivalent. (In some states, the number is almost one in three.)  Once, parole boards could truncate some of these long sentences, but the decimation of parole has largely eliminated that possibility.

The explosion in sentence length has turned some prison wings into de facto nursing homes, with prisons responsible for providing costly medical care to a growing elderly population. Keeping people locked up for so long does little for public safety. Most people who commit crimes, including violent crimes, do so while young. Arrest rates for violent crimes peak during people’s late teens (rates for robbery, for example, are highest at age 19), and criminal careers for violent crime typically last only five to 10 years....

Fortunately there is growing momentum to reduce excessive sentences. Legislation authorizing sentence reductions in old cases has passed in California and the District of Columbia. Senator Cory Booker has proposed something similar at the federal level. And in July, more than 3,000 people were released from federal custody under the First Step Act, passed in December, which allows certain federal prisoners to earn early release for good conduct.

But there is another solution to this problem. Prosecutors can recognize their role in creating the crisis and work toward fixing it. They should start by opening “sentence review units,” which would consist of small dedicated teams of lawyers, investigators, data scientists and social workers within the prosecutor’s office. The details would vary by place, but each team would review past cases, and when they find sentences that seem particularly egregious, prosecutors would give these cases a second look....

The concept of sentence review units is not entirely unfamiliar; it builds on conviction review units that root out cases where an innocent person has been found guilty. Sentence review units are similar, but instead of wrongful convictions, they seek out cases where the sentence seems excessive. What counts as “excessive” is necessarily a judgment call, but examples include sentences that in retrospect seem disproportionate to the severity of the offense, or those that are far longer than what a person sentenced today would receive.

Why should prosecutors be the ones to lead the movement to cut down long sentences? Because they were, and in many places still are, a major driver of the country’s sentencing explosion. In the courtroom, they have pushed for maximum sentences and resisted appeals for leniency. In statehouses, they have lobbied legislatures for longer sentences and opposed reform efforts...

Larry Krasner, Philadelphia’s district attorney, intends to open a sentence review unit. “Sometimes extreme sentences reflect unscientific beliefs; sometimes they reflect racism; and sometimes they reflect judges who punish you 10 times harder if you went to trial,” he told us in an interview. In all these cases, he said, the upshot is the same: “There are a lot of people in jail who very clearly don’t need to stay in jail.”

For now, sentence review remains ad hoc. But demands from citizens and leaders can help these local efforts grow into a national movement. Cutting down excessive sentences will not, on its own, solve the crisis of mass incarceration or bring our prison population in line with the rest of the world. But failing to act will ensure that the wounds caused by those sentences never heal.

Regular readers will not be surprised to know I am a big fan of this idea. Indeed, I wrote an a short article on this very topic nearly a decade ago, titled Encouraging (and Even Requiring) Prosecutors to be Second-Look Sentencers, 19 Temp. Pol. & Civ. Rts. L. Rev. 429 (2010).

The long legacy of drug wars: Eighth Circuit panel affirms LWOP sentence for drug dealer as reasonable

As long-time readers likely realize, I do not blog much these days about how federal circuit courts are conducting reasonableness review of sentences — largely because there are precious few cases in which circuit judges seriously question (or even seriously engage with) the sentencing judgments of district courts.  A helpful reader alerted me to a reasonableness review decision from the Eighth Circuit today which provides another example of how disinclined circuit courts are to question even the most extreme prison sentences.

US v. Duke, No. 18-1371 (8th Cir. July 310, 2019) (available here), involves the appeal after a resentencing of a man originally sentenced three decades ago.  Back then, arguably at the height of the modern drug war, "Ralph Duke was sentenced in 1990 to a term of life imprisonment plus forty years for committing several serious drug trafficking and firearms offenses."   Here is a description of Duke's crimes from this latest opinion:

Duke controlled all phases of a drug trafficking organization in the Minneapolis/St. Paul area from 1984 through June 1989.  He purchased cocaine primarily from a Colombian-affiliated source in Houston or from sources in Los Angeles.  The cocaine was transported to Minnesota in vehicles owned by Duke and driven by younger members of his drug trafficking organization.  Duke then distributed kilograms of cocaine to dealers for resale at the street level in smaller quantities.  Duke laundered the proceeds of drug sales by purchasing homes and cars in the names of others.  All told, Duke and his organization trafficked over fifty kilograms of cocaine before law enforcement interrupted their operations.  When Duke was apprehended in May 1989, officers found two loaded handguns in his bedroom and two assault shotguns and two AR-15 semi-automatic rifles in his residence.  The government charged at least twenty-five people as a result of the investigation of Duke’s organization. 

In other words, Duke was a big-time drug dealer in the 1980s, though it does not appear that he was actively involved in any violent activities or that his case involved other aggravating factors (though I suppose he might be called a drug kingpin).  But back in the 1990s, when the drug war was ranging and the federal sentencing guidelines were mandatory, perhaps it is not surprising that the federal district judge originally imposed an LWOP sentence on Duke.

But fast forward nearly 30 years, and Duke had the chance to benefit from a full resentencing in 2018 due to various legal developments.  Circa 2018, the federal sentencing guidelines were now advisory and, according to Duke, a lower sentence was justified in light of his "exceptional institutional conduct over the last 29 years, lack of criminal history, age, medical history, family ties, rehabilitation, remorse, and low risk of recidivism."  But the same federal district judge was unmoved and decided to give Duke an LWOP sentence yet again.  And the Eighth Circuit panel, in the ruling linked above, decided this LWOP sentence was reasonable.

When Booker was first decided and circuit courts were tasked with reasonableness review based on 18 U.S.C. § 3553(a), I had sincerely hoped appellate judges would come to embrace the task of ensuring sentences were "not greater than necessary to comply with the purposes set forth" by Congress.  But it became all too clear all too quickly that all too few circuit judges were eager to rigorously review long prison sentences, especially if those sentences fell within calculated guideline ranges.  Years later, even with mass incarceration and long sentences for drug offenses subject to considerable criticism, we still see federal judges finding no problem with giving a "death-in-prison" sentence based on drug dealing many decades ago.

A (depressing) first term commutation scorecard for recent US Presidents

By my count, thanks to two commutations granted yesterday, President Donald Trump has now commuted six prison sentences during the first two-third of his first term in office.  (For those interested in an accounting, the folks who have received commutations are Sholom Rubashkin, Alice Marie Johnson, Dwight and Steven Hammond, Ronen Nahmani and Ted Suhl.  All of Prez Trump's clemency work is detailed on this wikipedia page.) 

Given that there are over 177,000 persons serving federal prison sentences, six commutations is, by all sensible measures, a very small number.  The granting of only six commutations seems especially disappointing given that last year Prez Trump was talking about considering clemency requests that including "3,000 names, many of those names have been treated unfairly, ... [and] in some cases, their sentences are far too long."  Six commutations to date also seems quite small in light of the advocacy by Alice Marie Johnson, Prez Trump's most famous commutation recipient, who has urged the President to free "thousands more" federal prisoners like her.

But if we bring a little historical perspective to this story, six commutations during a president's first Term in office starts looking a lot better — primarily because the clemency records of recent presidents is so very awful.  Specifically, using the official clemency statistics here from the Office of the Pardon Attorney (and perhaps being off a little because of the fiscal year accounting), here is a first term commutation scorecard for US Presidents over the last half century:

Prez              Commutations in first term

Nixon             48

Ford               22

Carter            29

Reagan           10

HW Bush         3

Clinton            3

W Bush            2

Obama             1

Trump              6

As informed readers know, back in Nixon's day, the federal prison population was only just over 20,000.  That so very few federal prisoners have recently received clemency while the federal prison population has swelled makes these numbers even more depressing.  The also look terrible if we look back further historically, as almost every other 20th Century US President (except for Dwight Eisenhower) granted a hundred or more commutations while in office (with Woodrow Wilson granting 341 in 1920 alone).

Prez Trump gets back to using his clemency pen with two commutations and five pardons

As reported in this article from The Hill, "President Trump on Monday commuted the sentences of two nonviolent criminals and granted pardons to five others who previously pleaded guilty to nonviolent crimes but have completed their sentences." Here are details:

The White House announced that Trump commuted the sentence of Ronen Nahmani, who was convicted in 2015 and sentenced to 20 years in prison for conspiring to distribute a synthetic drug known as spice. The White House said Nahmani was a first-time offender with no prior criminal history who has five young children at home and a wife battling terminal cancer. The release also noted his case for an early release received support from bipartisan lawmakers.

Trump also commuted the sentence of Ted Suhl, an Arkansas man who was convicted in 2016 on four counts of bribery after prosecutors said he took part in a scheme to increase Medicaid payments to his company. Suhl appealed the ruling, but it was upheld, and he intended to file for an appeal with the U.S. Supreme Court. The White House noted his "spotless disciplinary record" while incarcerated and highlighted his support from former Gov. Mike Huckabee and former U.S. Attorney Bud Cummins.

In addition, Trump granted executive clemency to five people. The president pardoned John Richard Bubala, who pleaded guilty in 1990 to improper use of federal government property by transferring automotive equipment to the town of Milltown, Ind. Trump also pardoned Roy Wayne McKeever, who pleaded guilty in 1989 after he was arrested for transporting marijuana from Mexico to Oklahoma. McKeever was 19 at the time and served one year in jail.

Rodney Takumi received a pardon for a conviction over a 1987 arrest while he was working at an illegal gambling parlor. Takumi now owns a tax preparation franchise within the Navajo Nation, the White House said.

Trump granted clemency to Michael Tedesco, who was convicted in 1990 of drug trafficking and fraud. Former President Obama had pardoned Tedesco in 2017, but the fraud conviction remained on his record due to a clerical error. Trump's pardon will remove that charge, allowing Tedesco to obtain state licenses needed for his business.

The president also pardoned Chalmer Lee Williams, who was convicted in 1995 of several crimes related to theft of firearms and checked luggage during his time as a baggage handler. Williams served four months in prison and two years of supervised release. His voting rights in Kentucky were restored in 1998, the White House said....

With Monday's announcements, Trump has now pardoned or reduced the sentences of 19 individuals since taking office.

I had literally written to someone just today that I had largely given up on Prez Trump using his clemency powers regularly, and here he goes again. I was involved in helping to write an amicus brief urging the Supreme Court to take up the Nahmani case, so I am very pleased to see that the executive branch provided some relief to an extreme sentence after the judicial branch failed to do so.

Here are the official statements from the White House on these new clemency grants:

President Trump Commutes Sentence of Ronen Nahmani

President Trump Commutes Sentence of Ted Suhl

Statement from the Press Secretary Regarding Executive Grants of Clemency

Split Michigan Supreme Court finds due process precludes use of acquitted conduct at sentencing

A helpful reader made sure I did not miss the rich opinions coming today from the Michigan Supreme Court in People v. Beck, No. 152934 (Michigan July 29, 2019) (available here).  Here is part of the start of the majority opinion authored by Chief Justice McCormack:

In this case, we consider whether a sentencing judge can sentence a defendant for a crime of which the defendant was acquitted.

That the question seems odd foreshadows its answer. But to explain the question first: Once a jury acquits a defendant of a given crime, may the judge, notwithstanding that acquittal, take the same alleged crime into consideration when sentencing the defendant for another crime of which the defendant was convicted?  Such a possibility presents itself when a defendant is charged with multiple crimes.  The jury speaks, convicting on some charges and acquitting on others.  At sentencing for the former, a judge might seek to increase the defendant’s sentence (under the facts of this case, severely increase, though we consider the question in principle) because the judge believes that the defendant really committed one or more of the crimes on which the jury acquitted.

Probably committed, that is: A judge in such circumstances might reason that although the jury acquitted on some charges, the jury acquitted because the state failed to prove guilt on those charges beyond a reasonable doubt.  But the jury might have thought it was somewhat likely the defendant committed them.  Or the judge, presiding over the trial, might reach that conclusion.  And so during sentencing, when a judge may consider the defendant’s uncharged bad acts under a lower standard — a mere preponderance of the evidence — the judge might impose a sentence reflecting both the crimes on which the jury convicted, and also those on which the jury acquitted but which the judge finds the defendant more likely than not did anyway.  Is that permissible?

We hold that the answer is no. Once acquitted of a given crime, it violates due process to sentence the defendant as if he committed that very same crime.

Justice Viviano authored a lengthy solo concurrence that starts this way:

In every criminal trial, jurors are instructed, “What you decide about any fact in this case is final.”  But if a judge may increase a defendant’s sentence beyond what the jury verdict alone authorizes — here, based on the judge’s finding that the defendant committed a crime of which the jury just acquitted him — a more accurate instruction would read: “What you decide about any fact in this case is interesting, but the court is always free to disregard it.” Though I concur fully in the majority opinion, including its holding that due process precludes consideration of acquitted conduct at sentencing under a preponderance-of-the-evidence standard, I write separately to explain (1) why I believe that, because defendant’s sentence would not survive reasonableness review without the judge-found fact of homicide, his sentence also violates the Sixth Amendment, and (2) why I believe more generally that the consideration of acquitted conduct at sentencing raises serious concerns under the Sixth Amendment.

And Justice Clement authored an extended dissent for herself and two other that concludes this way:

The majority’s holding may be difficult to apply, and it directly contradicts existing precedent.  The presumption of innocence does not prohibit the trial court from considering conduct underlying acquitted charges when sentencing a defendant for convicted offenses as long as the conduct is relevant and supported by a preponderance of the evidence. The contrary conclusion is belied by the majority’s failure to cite any supporting precedent for its conclusion.  Accordingly, I dissent from this Court’s reversal of the judgment of the Court of Appeals.  I would have affirmed the holding of the Court of Appeals that the trial court did not err by considering conduct underlying defendant’s acquitted charge but reversed insofar as the Court of Appeals remanded this case for a Crosby hearing.  Pursuant to this Court’s decision in People v Steanhouse, 500 Mich 453, 460-461; 902 NW2d 327 (2017), I would have instead remanded this case to the Court of Appeals so that it could determine whether the trial court abused its discretion by violating the principle of proportionality.

Based on my too-quick scan of these opinions, it seems that the majority's holding is grounded on federal constitutional law (rather than just on state constitutional law). This means the state of Michigan could reasonably opt to seek further review in the US Supreme Court. Give Justice Gorsuch's work to date on similar issues and Justice Kavanaugh's past statements about acquitted conduct, I really hope Michigan might try to garner the Justices' attention on this conceptual and practically important topic.

Previewing the (swift? endless?) litigation sure to ensue in wake of effort to restart the federal machinery of death

As noted in this prior post, AG William Barr has engineered a new federal execution protocol and the scheduling of executions for five federal death-row inmates in December 2019 and January 2020. Perhaps the only thing this moves mean for certain is litigation over whether the new protocol is sound and whether these executions will go forward. Here are links and excerpts from a couple articles previewing the litigation to come:

From BuzzFeed News, "The Trump Administration Is Bringing Back Federal Executions. It Will Immediately End Up In Court."  Excerpt:

Megan McCracken, a lawyer involved in the case and an expert on lethal injections, told BuzzFeed News that the litigation focuses on whether a particular execution protocol is constitutional under the Eighth Amendment’s prohibition against “cruel and unusual punishment” and also whether the process is otherwise lawful.  The lawsuit could examine, for instance, whether the Trump administration followed the proper procedures in adopting the new policy.  The administration did not go through the public rule-making process that agencies normally use in adopting regulations, which includes publishing details in advance and giving the public a chance to weigh in, before making its announcement Thursday.

“The devil is really in the details, and so all of the unknowns at this point are going to be the relevant issues for whether or not this protocol is constitutional, is lawful,” McCracken told BuzzFeed News.  “That is why the litigation that’s been on hold in federal court since 2011 ... will now need to proceed and give the court opportunity to review the procedure, the drugs, the execution teams, how they plan to administer it.”

A senior Justice Department official said that former attorney general Jeff Sessions directed the Federal Bureau of Prisons to explore options for resuming federal executions when he took office. The bureau recently concluded its review and submitted the proposal to Barr, who approved it, the official said.  The department’s press release said the new protocol was similar to single-drug procedures used in Georgia, Missouri, and Texas....

The prisoners involved in the pending litigation already had execution dates scheduled, which were put on hold.  The five men now scheduled for lethal injections aren’t parties to the case — defendants without execution dates hadn’t sought to join the case while it was delayed — but the Justice Department’s notice to the court Thursday means it expects the judge to review the new protocol.

From The Hill, "Opponents vow to challenge Justice decision on death penalty." Excerpt:

Human rights and anti-death penalty groups are vowing to challenge the Justice Department’s decision to resume the federal death penalty after a 15-year hiatus.... The groups predicted the decision would set off new lawsuits opposing the Trump administration, particularly given a decades-long move against capital punishment that has seen a number of states suspend the practice....

A number of groups, including the ACLU, have indicated that they plan to challenge the new policy, whether in court or through other means. “Under no circumstances should the Justice Department be allowed to rush through executions. The federal death penalty is defined by the same problems of racial bias, geographic disparities, prosecutorial misconduct, and junk science that have led to the decline in support for capital punishment nationwide,” Cassandra Stubbs, director of the ACLU’s Capital Punishment Project, said in a statement....

Legal battles will likely center on how the policy is being implemented: Barr indicated in Thursday’s announcement that the protocol has already been formally adopted. But experts say that such a policy should have to go through a comment and notice period as required by the Administrative Procedure Act, and that sets it up to be challenged in court....

At least one of the planned executions is already being challenged by the death-row inmate it involves: Attorneys for Daniel Lewis Lee, whose execution is planned for Dec. 9 of this year, are speaking out against the move, saying that his conviction was secured despite the “demonstrated unreliability of the evidence.”

Lee’s attorney Morris Moon raised concerns about the DNA and other evidence used in the case, arguing that it “exemplifies many of the serious flaws in the federal death penalty system.” “Given the problems that undermine the fairness and reliability of Danny Lee’s conviction and death sentence, the Government should not move forward with his execution,” Moon said.

A lawyer for another one of the men, Purkey, also said Thursday that he shouldn’t be executed, claiming that “substandard representation permeated Mr. Purkey’s trial with errors and meant that his jury never had a full picture of his deep and sincere remorse or the personal circumstances that led to these tragic events.“

“The DOJ seeks to execute Mr. Purkey now, despite the myriad legal violations in his case and despite his advancing age and declining health,” attorney Rebecca Woodman said in a statement of her 67-year-old client. “The timing of this decision raises serious questions about the application of capital punishment under this administration."

As suggested by the title of this post, the really big question is whether this capital litigation will move swiftly or slowly. Obviously, the defendants now scheduled to be executed in less than six months would like this litigation to drag on for years. I assume the feds are eager and prepared to move this litigation along swiftly, but just how swiftly? Any ruling adverse to these defendants is sure to be appealed to a federal circuit court and to the Supreme Court. Is DOJ prepared to ask all these courts for expedited briefing schedules in order to try to preserve these scheduled execution dates?

Not mentioned in these pieces, but of great interest to me conceptually, is whether and how these defendants can constitutionally contest how AG Barr decided to put them in the front of the execution queue.  Notably, more than a dozen persons on federal death row were sentenced to death before Danny Lee was condemned in 2002, and more than a few were condemned more than half a decade before Lee.  Just why was he selected to be the first to be executed?  In addition, though less than half of federal death row is white (details here from DEPC), Danny Lee and two other of the condemned given the first execution dates are white. Did AG Barr think it might be politically useful to have more white defendants at the start of the execution queue, and if so wouldn't such thinking raise equal protection concerns?  (Because 8 of the 10 defendants sent to federal death row in the 1990s were black, including all three condemned way back in 1993, I think there is a circumstantial basis to believe that AG Barr may not have set executions dates chronologically because of concern that only black defendants would be scheduled to die first.  But is it constitutionally permissible for him to give race consideration this way?)

Bernie Madoff seeks from Prez Trump a commutation of his 150-year federal prison sentence for massive Ponzi scheme

Notorious Ponzi schemer Bernie Madoff has served less than 10% his 150-year federal prison sentence, but at age 81 he understandably would like to find a way not to die behind bars.  This new NBC News piece, headlined "Bernie Madoff asks Trump to reduce his prison sentence for massive Ponzi scheme," reports on this high-profile offenders making a high-profile request for clemency from Prez Donald Trump.  Here are some details and lots of context:

Bernie Madoff is asking that President Donald Trump reduce his 150-year prison sentence — a a request that Madoff’s prosecutor promptly called “the very definition of chutzpah.”

Madoff, 81, is currently locked up in a federal prison in Butner, North Carolina, for orchestrating the largest Ponzi scheme in history.

The decades-long scam conducted while he headed Bernard L. Madoff Investment Securities in New York City swindled thousands of investors out of billions of dollars. Madoff, who pleaded guilty to 11 crimes in 2009, is not asking for a pardon from the president. Instead, he is requesting clemency from Trump in the form of a sentence commutation, or reduction, according to an application filed with the Justice Department.

A search of the Justice Department’s website shows that Madoff’s clemency request is “pending.”

If Trump’s previous opinions on Madoff and his family are any indication, the uber-crook faces long odds in winning an early release from prison. Trump, in his 2009 book “Think Like a Champion,” wrote that he said “no” to Madoff’s suggestion that he invest in his fund. “I had enough going on in my own businesses that I didn’t need to be associated or involved with his,” Trump wrote in his book, according to an article at the time in U.S. News & World Report.

In that same book, Trump said he knew a number of people who had invested their life savings with the scamster. “He is without a doubt a sleazebag and a scoundrel without par,” Trump wrote.

The New York Post, citing a source close to the Madoff family, two years ago reported that after Madoff’s conviction, Trump refused to rent his wife Ruth Madoff an apartment in his Manhattan buildings when she was looking for a new place to live.

The Justice Department would not reveal when Bernie Madoff’s request for clemency was submitted. But the department noted that such an application takes between one and three months to appear on the clemency section of the website. It is not known if Trump will consider the request, or when he might do so.

Madoff’s former lawyer, Ira Lee Sorkin, told CNBC he had no information about the request. The White House referred questions about Madoff’s bid for clemency to the Justice Department.

Marc Litt, who was the lead federal prosecutor in the criminal case against Madoff, to CNBC on Wednesday, “Bernard Madoff received a fair and just sentence – one that both appropriately punished him for decades of criminal conduct that caused devastating damage to tens of thousands of victims, and sent a loud and clear message to deter would-be fraudsters.”

“Madoff’s current request is the very definition of chutzpah,” said Litt, who currently is a partner at the law firm Wachtel Missry in New York, where his office overlooks the “Lipstick Building” that formerly housed Madoff’s company. “I’m confident that the career [Justice Department] attorneys responsible for evaluating such requests will reject it out of hand.”

DOJ statistics show that the department received 1,003 petitions for pardons and another 5,657 for sentence commutations that could have been considered by Trump since he was in the White House. Trump has granted 10 pardons and just four commutations.

His pardon recipients include controversial former Arizona Sheriff Joe Arpaio, Lewis “Scooter” Libby, former chief of staff for Vice President Dick Cheney, deceased boxer Jack Johnson, conservative pundit Dinesh D’Souza, and, most recently, former media mogul Conrad Black, who wrote a biography entitled “Donald J. Trump: A President Like No Other.”

Two other pardon recipients, Oregon ranchers Dwight Hammond and his son, Steven Hammond, also had their prison sentences for arson on federal lands commuted by Trump.

Madoff’s former longtime secretary also is asking Trump for a commutation of her six-year prison term for helping facilitate the Ponzi scheme, according to the Justice Department’s webpage. In January, a federal judge rejected a separate request by that secretary, Annette Bongiorno, 70, to be released into home confinement. Bongiorno has served nearly 4½ years of her prison sentence in a federal facility in New York state.

Peter Madoff, Bernie’s younger brother, pleaded guilty in 2012 to falsifying records at the Madoff investment firm, and to conspiracy to commit securities fraud. He was sentenced to 10 years in prison, and is due to be released in October 2020. There is no record of a clemency petition from Peter Madoff on the Justice Department’s website.

Ruth Madoff in May agreed to pay $594,000 and to surrender her remaining assets when she dies as part of a settlement of claims by Irving Picard, the court-appointed trustee who for years has tried to recoup money for Madoff’s customers. Ruth Madoff was never charged in connection with her husband’s crimes.

Madoff’s scheme originally was estimated to have lost upward of $65 billion for his investors. But Picard as of last November had recovered more than $13.3 billion of the approximately $17.5 billion of claims by customers who say they were swindled by Madoff’s scheme....

Madoff’s sons have both died since he was locked up. His oldest son, Mark, hanged himself in December 2010, on the second anniversary of his father’s confession to the Madoff family of his crimes. Madoff’s other son, Andrew, died in 2014 after a long battle with a rare form of cancer. Neither Andrew nor Mark were ever charged in connection with their father’s crimes.

Eleventh Circuit panel finds federal prisoner can file a second or successive § 2255 based on SCOTUS Davis ruling

A helpful reader made sure I did not miss that an Eleventh Circuit panel issued an intricate ruling yesterday in In Re: Wissam Hammoud, No. 19-12458 (11th Cir. July 23, 2019) (available here), concerning the potential retroactive application of the Supreme Court's recent important vagueness ruling in Davis. Here is part of the opinion that highlight what it is intricate:

In his present application, Hammoud contends that his § 924(c) conviction in Count 5 is no longer constitutionally valid.  Specifically, Hammoud asserts that § 924(c)(3)(B)’s residual clause is unconstitutional, in light of the new rule of constitutional law set forth in Davis, Dimaya, and Johnson, and that his companion solicitation conviction in Count 3 could have qualified as a “crime of violence” only under § 924(c)’s now-defunct residual clause.

To determine whether Hammoud’s proposed Davis claim meets the statutory criteria, we must first address three preliminary issues: (1) whether Davis announced a new rule of constitutional law; (2) if so, whether Davis has been made retroactively applicable to cases on collateral review by the Supreme Court; and (3) whether Hammoud’s Davis claim is barred under our precedent in In re Baptiste, 828 F.3d 1337 (11th Cir. 2016).  Only after addressing these issues may we consider the merits of Hammoud’s claim

This prisoner makes it through all of these hoops, so that this opinion ends: "Accordingly, because Hammoud has made a prima facie showing of the existence at least one of the grounds set forth in 28 U.S.C. § 2255, his application for leave to file a second or successive motion is hereby GRANTED as to his Davis claim regarding his § 924(c) conviction in Count 5."

Spotlighting how some federal prosecutors are pushing back on some applications of FIRST STEP Act crack retroactivity

Reuters has this notable and lengthy new article on some skirmishes over the crack sentencing retroactivity piece of the FIRST STEP Act under the headline "As new U.S. law frees inmates, prosecutors seek to lock some back up." I recommend the piece in full, and here are excerpts:

Monae Davis walked out of prison on March 7, thanks to a new law that eased some of the harshest aspects of the United States’ war on drugs.  Now the U.S. Justice Department is trying to lock him back up.

As Davis, 44, looks for work and re-connects with his family, U.S. prosecutors are working to undo a federal judge’s decision that shaved six years off his 20-year prison sentence under the First Step Act, a sweeping criminal-justice reform signed into law by President Donald Trump last December.  “They’re prosecutors — it’s their job to make it hard on people,” he said. “Do I think it is right? No, it’s not fair.”

Even as thousands of prison inmates have been released by judges under the new law, federal prosecutors have fought scores of petitions for reduced sentences and are threatening to put more than a dozen inmates already released back behind bars, Reuters found in an analysis of these cases.  The reason: the Justice Department says the amount of drugs they handled was too large to qualify for a reduced sentence.

Davis, for example, reached a deal in 2009 with U.S. attorneys in western New York to plead guilty to selling 50 grams or more of crack, resulting in his 20-year sentence.  Under First Step guidelines, that carries a minimum sentence of five years, less than half the time he has already served.  But prosecutors say Davis should not get a break, because in his plea deal he admitted to handling between 1.5 kilograms and 4.5 kilograms, which even under current guidelines is too high to qualify for a sentence reduction.

In a statement, the Justice Department said it is trying to ensure that prisoners seeking relief under the First Step Act aren’t treated more leniently than defendants now facing prosecution.  The department said prosecutors now have a greater incentive than previously to bring charges that more closely reflect the total amount of drugs they believe to be involved. “This is a fairness issue,” the department said....

More than 1,100 inmates have been released so far under this [Fair Sentencing Act retroactivity] provision in the new law, according to the Justice Department. (Another 3,100 here are being released under a separate provision that awards time off for good conduct.)

In most of the 1,100 sentence-reduction cases, U.S. prosecutors did not oppose the inmate’s release. But in at least 81 cases, Reuters found, Justice Department lawyers have tried — largely unsuccessfully so far — to keep offenders behind bars. They argue that judges should base their decision on the total amount of drugs that were found to be involved during the investigation, rather than the often smaller or more vague amount laid out in the law they violated years ago.

The difference between the two amounts in these cases is often significant — and, depending on whether a judge agrees with prosecutors’ objections, can mean years of continued incarceration rather than immediate release.

Regional prosecutors’ offices, though they often enjoy great autonomy, have made it clear that they are operating on instructions from Washington. One prosecutor in western Virginia in April objected to nine sentence reductions she had previously not opposed, citing Justice Department guidelines.

The federal government has lost 73 of 81 cases in which the issue has arisen so far, according to the Reuters analysis. Prosecutors have appealed at least three of those decisions and indicated they intend to appeal 12 more. If they succeed, men like Davis would return to prison.

First Step Act advocates say the Justice Department is undercutting the intent of the law. “Many of these people have served in prison for five, 10, 15, 20 years and more. It’s time for them to be able to get on with their lives, and the notion the Department of Justice is just going to keep nagging at them and appealing these cases is not what we ever had in mind,” Democratic Senator Dick Durbin, one of the law’s authors, told Reuters.

Litigation over capital trials during Gov moratorium heads to California Supreme Court

In prior posts linked below, I covered on this blog the decision by California Gov Gavin Newsom to declare a moratorium on executions in his state and the echoes of that decision.  This new Los Angeles Times article reports on the latest echo under the headline "Death penalty trials have continued despite Newsom’s moratorium. The California Supreme Court could stop them."  Here are excerpts:

The attorneys were about two weeks into choosing a jury in an upcoming triple-murder trial when they had to toss out the work they’d done and send the potential jurors home.

The California Supreme Court essentially froze the death penalty trial of Jade Douglas Harris, which was set to start this month, as it decides whether it will consider an argument by his defense attorney that he can’t get a fair trial in light of Gov. Gavin Newsom’s moratorium on executions in the state.

The court has until Aug. 30 to decide whether to take up a matter that could result in essentially blocking death penalty trials in California while the moratorium is in effect during Newsom’s term.

Public defenders representing Harris, who is accused in a shooting rampage that left three people dead and two others wounded, argue that jurors must believe that when they hand down a death sentence, it will be carried out....

The attorneys say a fair decision is impossible given that Newsom granted a reprieve to the more than 700 prisoners on death row and had the state’s execution chamber dismantled — with much fanfare in front of cameras.

“It’s just really impossible for a jury to go into a jury room and say, ‘We’re going to ignore that,’” said Robert Sanger, a defense attorney who first made this argument on behalf of a defendant in an unrelated capital case in Los Angeles County.... “The jury making that order has to really believe it, because if they don’t, they could be cavalier about it and just say: ‘Well, let’s send a message.… We know [the death sentence] is never going to happen, but let’s do it anyway,’” Sanger said.

Laurie Levenson, a professor at Loyola Law School, said there’s a real risk to the accused if that is the mindset of jurors. “The question is likely to be: Is there any kind of instruction or precautionary steps that a trial judge can take to prevent that from occurring?” she said. It’s hard to predict what the court will decide, Levenson said, but its stay in the Harris case signals that the state’s highest justices are taking his petition seriously. “It’s not a frivolous issue,” she said.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said he was disappointed the court was seriously considering what he called a “meritless argument.”

“Newsom’s moratorium only lasts for the duration of his term as governor. Nobody sentenced today would be executed within the next seven years anyway,” said Scheidegger, whose organization backed a measure to speed up executions in California. “And everybody pretty much knows that.”

Prosecutors in Johnson’s case said in court papers that any of his concerns can be handled through appropriate jury instructions and during voir dire, when jurors are questioned before the trial to determine their fitness. They argued that concerns about fairness can also be assessed on appeal....

A Los Angeles County district attorney’s office spokeswoman said in a statement that the law hasn’t changed, and until it does, prosecutors will “continue to fairly evaluate all special circumstance cases and seek death against the worst of the worst offenders, including child murderers and serial killers.”...

The American Civil Liberties Union recently published a report that said all of the 22 people sentenced to death in L.A. County since Dist. Atty. Jackie Lacey took office in December 2012 are people of color. This week, a group of more than 75 law professors and scholars called on Lacey to stop seeking death penalty sentences.

Prior related posts:

• New California Gov to order moratorium on executions in his state 
• California Gov Newsom, on heels of execution moratorium order, now talking up halt to any capital prosecutions
• California DAs assail Gov Newsom's execution moratorium 
• Noting how California's prosecutors keep pursuing death sentences despite execution moratorium, and what more Gov Newsom has in mind

Federal judge gives first-person account of FIRST STEP Act's impact through retroactive crack provision

The New York Times has this notable new first-person account of the FIRST STEP Act coming from a judge who was able to reduce a life sentence thanks to the Act's crack retroctivity provisions.  The piece is authored by Robin Rosenberg, and carries the headline "In ’99 He Was Sentenced to Life. Twenty Years Later, I Set Him Free." Here are excerpts:

In January 1999, Robert Clarence Potts III was sentenced to life in prison. He was 28, and had been convicted of drug and weapons charges. The federal judge sentencing him seemed to express some regret at the gravity of the penalty. But under the law at the time, Mr. Potts faced a mandatory sentence of life imprisonment without release because of the type of offenses and his two previous convictions for drug and other offenses.

“You are facing a very tough sentence here, and it is very regrettable that you are,” the judge, James C. Paine of the United States District Court of the Southern District of Florida, told him. The judge added that “we are governed by the law and the guidelines and we are going to have to go by those.” And the law and sentencing guidelines meant “a term of life imprisonment,” he explained.

To that, Mr. Potts responded, “Sir, there is not much I can say.”  But it was what he did afterward that ultimately made the difference.

On Friday, Mr. Potts, now 49, is scheduled to be released from prison after more than 20 years — a turn of events made possible by the First Step Act, passed by Congress and signed by President Trump last year.  Among other things, the law expanded early-release programs, modified sentencing laws and allowed defendants like Mr. Potts to seek a reduction in their sentence, a step toward correcting the country’s history of disproportionate sentences.

The decision whether to reduce his sentence fell to me when I was randomly assigned his case.  The twist was that I had been Judge Paine’s law clerk in 1989, 10 years before Mr. Potts was sent away.  Now I was a federal judge in the same courthouse where Judge Paine had served and where he had sentenced Mr. Potts two decades before....

Mr. Potts had served over 20 years in a high-security federal penitentiary when the First Step Act became law last December.  The First Step Act made the Fair Sentencing Act — signed by President Barack Obama in 2010 to reduce the disparity in sentencing for powder cocaine and crack cocaine offenses — applicable to past cases.  The First Step Act also allowed a defendant like Mr. Potts to seek a sentence reduction even when the original sentence was for life.  The law provides wide discretion to the court to determine whether to reduce a sentence and by how much.

At his sentence reduction hearing, Mr. Potts had much more to say than he did back in 1999.  Before me, he was remorseful, dignified and hopeful.  He was proud of all that he had accomplished in over two decades in prison — proud of the courses he took in personal growth, responsible thinking, legal research and software, proud of his participation in nearly every health, nutrition and fitness class available.  Perhaps he derived his greatest pride from conquering a debilitating addiction and maintaining his sobriety.  As his lawyer explained to me, sobriety is not a foregone conclusion in prison, where drugs are widely available....

The true marker of a person’s character is what he does when he thinks no one is watching.  Because Mr. Potts was sentenced to life, no one had really been looking at what he had been doing.  But his unwavering dedication to improve himself over the last two decades, despite his circumstances, convinced me that his hope in his own future isn’t misplaced.

After a long hearing, I concluded that 20 years was more than sufficient as punishment for his past — and serious — crimes, and ordered his release. To help his transition, he will spend six months in a residential re-entry center.  I believe Mr. Potts’s story is one of redemption through self-improvement.  His case speaks to the importance of criminal justice reforms such as the First Step and Fair Sentencing Acts. His story illuminates the human impact of such reforms and a person’s capacity for hope and redemption.

Fascinating Fourth Circuit en banc debate over constitutional challenges to Virginia's "habitual drunkard" law

A helpful colleague made sure I saw the Fourth Circuit's split en banc ruling yesterday in Manning v. Caldwell,  No. 17-1320 (4th Cir. July 16, 2019) (available here), concerning a lawsuit challenging a peculiar Virginia law.  This AP article summarizes the ruling and provides helpful context:

A lawsuit challenging an unusual Virginia law that allows police to arrest and jail people designated as “habitual drunkards” was reinstated Tuesday by a deeply divided federal appeals court. The 4th U.S. Circuit Court of Appeals ruled that the challenge to Virginia’s so-called interdiction law can move forward.

The court voted 8-7 to allow the lawsuit to proceed, finding that Virginia’s law is unconstitutionally vague. The ruling from the full court reverses earlier rulings from a judge and a three-judge panel dismissing the lawsuit.

The Legal Aid Justice Center argues that the law targets homeless alcoholics and violates the 8th Amendment prohibition against cruel and unusual punishment. The Virginia attorney general’s office, in defending the law, argues that the state has a legitimate interest in discouraging alcohol and drug abuse.

The law allows prosecutors to ask a civil judge to declare someone a “habitual drunkard.”  Police can then arrest that person for being publicly intoxicated, possessing alcohol or even smelling of alcohol.  Violators face up to a year in jail.

In its written opinion, the court found that the law does not give homeless people who struggle with alcohol fair notice under the law.  “While necessary changes in the law may not alter the choices that they make or enhance the quality of their life, at least the government will not be compounding their problems by subjecting them to incarceration based on the arbitrary enforcement of ambiguous laws or, at best, the targeted criminalization of their illnesses,” Judges Diana Gribbon Motz and Barbara Milano Keenan wrote for the majority.

During arguments before the 4th Circuit in January, an attorney representing people designated as “habitual drunkards” argued that the law criminalizes addiction by targeting people who are compelled to drink because they are alcoholics and are forced to drink in public because they are homeless.  People without the habitual-drunkard designation can also be arrested for public intoxication, but they don’t face any jail time.

In a strongly worded dissenting opinion, Judge J. Harvie Wilkinson III chastised the majority for asking the court to find “that addiction gives rise to an Eighth Amendment right to abuse dangerous substances without the imposition of any criminal sanctions.”

“As my colleagues apparently see it, consuming alcohol, even by those with a documented history of alcohol abuse, is just not the sort of conduct that warrants criminal sanctions. Given the comprehensive body of research pointing to the harms of alcohol abuse, I cannot agree,” Wilkinson wrote....

Virginia and Utah are the only two states with interdiction laws that make it a crime for people designated as habitual drunkards to possess, consume or purchase alcohol, or even attempt to do so, according to a survey of state laws done by the legal aid center.

The full opinion runs 83 pages, so I will need some time to assess whether it is as consequential a ruling as the dissent seemingly fears. But folks who follow the intersection of criminal justice and public health will surely want to check this one out.

FAMM releases materials in support of new "Second Look Act" proposed by Senator Cory Booker

As noted in this post, Senator Cory Booker is now promoting a notable new second look provision to be added to federal sentencing laws.  The group FAMM has marked this development with this press release that includes notable new materials helping to make the case for a second look provision in federal law.  Here is part of the press release and its linked materials:

This week Sen. Cory Booker (D-New Jersey) and Rep. Karen Bass (D-Calif.) will be introducing the Matthew Charles and William Underwood Act. The bill would create a second look sentencing provision to allow judges to reduce lengthy sentences if a person has served more than 10 years, has made significant strides toward rehabilitation, and is no longer a risk to public safety.

“We have to stop throwing so many people away. People can change, and our sentencing laws ought to reflect that,” said FAMM President Kevin Ring. “Lengthy prison sentences are not always the right answer, especially when someone has proven their commitment to rehabilitation. Public safety can be improved by taking a second look at those lengthy sentences, reducing them when warranted, and redirecting anti-crime resources where they might actually do some good.”...

The bill is named in honor of Matthew Charles, a FAMM Justice Fellow and the first beneficiary of the First Step Act’s retroactive sentencing reform, and William Underwood, who is currently serving a life without parole sentence for a federal drug conviction....

In support of the new legislation, FAMM is releasing the following:

• A white paper explaining the background of and need for a second look bill;
• A short video that provides firsthand perspectives of four formerly incarcerated individuals, including Matthew Charles;
• An infographic that explains how a second look provision would work in practice.

FAMM has been a longtime supporter of expanding ways to revisit harsh sentences, including executive clemency, compassionate release, and second look. Last month, USA Today published an op-ed co-authored by Ring and former federal judge Kevin Sharp on the need for second look sentencing laws.

Philly DA argues, based on study of local capital cases, that "death penalty, as it has been applied, violates the Pennsylvania Constitution"

As reported in this local article, headlined "DA Krasner wants Pa. Supreme Court to strike down state’s death penalty and declare it unconstitutional," a notable local prosecutor has filed a notable state court brief that surely could have national consequences.  Here are the basics:

In a response to a death penalty case that could have far-reaching ramifications, the Philadelphia District Attorney’s Office is asking the Pennsylvania Supreme Court to strike down the state’s death penalty and declare it unconstitutional.  “Because of the arbitrary manner in which it has been applied, the death penalty violates our state Constitution’s prohibition against cruel punishments,” District Attorney Larry Krasner’s office wrote in a motion filed with the court Monday night....

The DA’s Office was responding to a petition filed by federal public defenders representing Philadelphia death-row inmate Jermont Cox, convicted of three separate drug-related murders in 1992 and ordered to die for one of them.  The defense attorneys, who also represent a Northumberland County inmate, Kevin Marinelli, sentenced to death for a 1994 killing, have asked the high court to end capital punishment, arguing that the death penalty violates the state Constitution’s ban on cruel punishment.

Krasner’s office agrees with that assessment.  The office’s position does not come as a surprise — Krasner had campaigned against the death penalty while running for district attorney in 2017, saying he would “never seek the death penalty” — but Monday night’s motion in the Cox case is the first time Krasner has articulated it to the state’s highest court....

The justices’ eventual decision on Cox and Marinelli could affect not just future death-penalty cases, but also the approximately 130 other inmates awaiting execution, potentially forcing the courts to resentence them.  After a June 2018 bipartisan legislative Joint State Government Commission report found troubling deficiencies in the state’s death-penalty system, Philadelphia-based federal defenders in August filed separate petitions for Cox and Marinelli, asking the state high court to find the death penalty unconstitutional.

The defense attorneys asked the high court to invoke its King’s Bench authority, which gives the court the power to consider any case without waiting for lower courts’ rulings when it sees the need to address an issue of immediate public importance.  The court consolidated the two cases in December.  In its February joint petition for Cox and Marinelli, the federal defenders asked the high court to “strike down the Commonwealth’s capital punishment system as a prohibited cruel punishment” and heavily relied on the joint commission’s report in finding problems with the death penalty....

The DA’s Office response to the defense petition was initially expected in March.  City prosecutors three times requested a deadline extension.  The high court then set a July 15 deadline. The court has set a Sept. 11 hearing date for oral arguments on the petition from Cox and Marinelli....  

Pennsylvania’s death penalty has been used three times since it was reinstated by the state in 1978.  The last person executed was Gary Heidnik of Philadelphia in 1999.

The full brief from DA Larry Krasner's office is available at this link, and it is a must-read in part because it makes much of the office's own study of Philadelphia capital cases. Here are a few paragraphs from the the brief's introduction:

To assess whether Pennsylvania’s capital sentencing regime ensures the heightened reliability in capital cases required by our Constitution, there is no better place to start than Philadelphia — the jurisdiction that has sought and secured more death sentences than any other county in the state.  In order to formulate its position in this case, the Philadelphia District Attorney’s Office (DAO) studied the 155 cases where a Philadelphia defendant received a death sentence between 1978 and December 31, 2017.

As will be detailed below, the DAO study revealed troubling information regarding the validity of the trials and the quality of representation received by capitally charged Philadelphia defendants — particularly those indigent defendants who were represented by under-compensated, inadequately-supported court-appointed trial counsel (as distinguished from attorneys with the Defender Association of Philadelphia).  Our study also revealed equally troubling data regarding the race of the Philadelphia defendants currently on death row; nearly all of them are black.  Most of these individuals were also represented by court-appointed counsel, often by one of the very attorneys whom a reviewing court has deemed ineffective in at least one other capital case....

Where nearly three out of every four death sentences have been overturned— after years of litigation at significant taxpayer expense—there can be no confidence that capital punishment has been carefully reserved for the most culpable defendants, as our Constitution requires. Where a majority of death sentenced defendants have been represented by poorly compensated, poorly supported court-appointed attorneys, there is a significant likelihood that capital punishment has not been reserved for the “worst of the worst.” Rather, what our study shows is that, as applied, Pennsylvania’s capital punishment regime may very well reserve death sentences for those who receive the “worst” (i.e., the most poorly funded and inadequately supported) representation....

As this Court observed in Zettlemoyer, our 1978 statute attempted to establish a reliable, non-arbitrary system of capital punishment. Decades of data from Philadelphia demonstrates that, in its application, the system has operated in such a way that it cannot survive our Constitution’s ban on cruel punishment. Accordingly, the DAO respectfully requests this Court to exercise its King’s Bench or extraordinary jurisdiction and hold that the death penalty, as it has been applied, violates the Pennsylvania Constitution.

Some additional good discussion of this brief and its context can be found in discussions at The Appeal and Reason.

Senator Cory Booker proposes bold "second look" resentencing law

Continuing his pattern of putting forth bold criminal justice reform proposals, Senator Cory Booker is now promoting a notable new second look sentencing law.  This new NBC News article, headlined "Cory Booker aims to give aging prisoners 'a second look': The Democratic presidential candidate is unveiling new legislation to take prison reform another step forward," provides some of the details.  Here are excerpts:

New Jersey Senator Cory Booker is unveiling new legislation that would give more federal prisoners the chance at early release, building on perviously passed criminal justice reform that some supporters say didn't go far enough.

The First Step Act, passed in 2018, was a rare bipartisan feat in Congress, bringing some of the most liberal and conservative lawmakers together with President Donald Trump to enact the biggest reforms to the criminal justice system since the tough-on-crime laws of the 1980s and 1990s.  While the new law led to the release of thousands of federal inmates, thousands more were ineligible.

William Underwood, 65 years years old, is one inmate who wasn't eligible for release under the First Step Act.  He has been in federal prison for 30 years, convicted of conspiracy, racketeering and non-violent drug-related crimes.  Although it was his first felony conviction, he was sentenced to life in prison without parole under mandatory sentencing guidelines.

Booker, who first met Underwood in 2016, says he's a prime example of the kind prisoner who should be eligible for release.  He points to Underwood's age, the time he's already served and his record of good behavior as as reasons why more reforms are needed, noting that even the prison guards have said Underwood doesn’t belong there.

Booker’s legislation would address people like Underwood.  The Matthew Charles and William Underwood Second Look Act, named after Underwood and Charles, the first person released because of the First Step Act, would give those serving long sentences a second chance.

The bill would also give people who have served more than ten years an opportunity to petition the court for release. And for prisoners over the age of 50, they would be offered the presumption of release, which means the the judge would have to show that the inmate should remain behind bars because they are a threat to society.

The measure likely faces an uphill battle in part because it would shift the burden onto the judicial system to make the case that a prisoner should remain locked up. Another component that is expected to be controversial is that there is no exclusions for certain crimes.  (The type of crimes included in the First Step Act encompassed low-level, non-violent crimes.)  Booker’s office argues that it would be much tougher for someone convicted of a violent crime to be released because a court must find that the inmate is not a risk and the inmate must show readiness to re-enter society....

“I hope that this creates a much bigger pathway for people to be released, to save taxpayer dollars, to reunite families,” Booker said.  “This system of mass incarceration that now has more African Americans under criminal supervision than all the slaves in 1850 is an unjust system, and I intend to do everything I can to tear down the system of mass incarceration."

Booker was instrumental in the passage of the First Step Act, which had the support of President Donald Trump under the direction of his son-in-law Jared Kushner, and Kim Kardashian.  As a presidential candidate he’s running against a number of candidates introducing plans revolving around criminal justice and his bill is a direct response to frontrunner, former Vice President Joe Biden, who was critical to the passage of the tough-on-crime bills of the 80s and 90s.  Biden is expected to unveil a criminal justice reform plan in the coming weeks, which is expected to include a prohibition on mandatory minimum sentences.

Prior recent related post:

• Senator (and Prez candidate) Cory Booker introduces "Next Step Act of 2019" with wide array of sentencing and criminal justice reforms 
• Senator Cory Booker sets out "Restoring Justice Initiative" focused on providing clemency relief to thousands of federal offenders 

UPDATE: Over at Crime & Consequences, Kent Scheidegger has this extended post looking into the backstory of William Underwood under the title "A Poster Boy for the Long-Sentenced, Non-Violent Drug Offender?".  Here is a snippet from Kent's review of his underlying conviction:

[Here is part of the] Second Circuit's decision on the original appeal, which is published. See United States v. Underwood, 932 F.2d 1049 (2d Cir. 1991), cert denied 502 U.S. 942 (1991):

"The government's evidence at trial showed that from the 1970's until his arrest in late 1988, Underwood supervised and controlled an extensive and extremely violent narcotics trafficking operation involving a number of murders and conspiracies to murder, a highly organized network for the street-level distribution of heroin and the importation of large quantities of heroin from Europe to the United States.  The government presented the testimony of more than 50 witnesses, including a number of former members of Underwood's street-level distribution organization, and introduced more than 250 exhibits."  Id. at 1051.

Compassionate Release Training in DC (and online) next week

This NACDL tweet flags an important training opportunity taking place in DC and online next week for folks interested in getting in on some of the most exciting legal change brought about by the FIRST STEP Act.  Here is an image with the details:

If that image does not do the trick, here is the text of a tweet from Mary Price of FAMM with the essentials:  "Calling all pro bono lawyers!  Want to learn how to help prisoners seeking Compassionate Release? We are training (live and by webinar) on Monday, July 15!  RSVP to agprobono @ akingump.com"

En banc Ninth Circuit works through Eighth Amendment jurisprudence and juvenile resentencing under federal guidelines

In this post around this time last year, I noted work on an amicus brief in support of a Ninth Circuit en banc petition in US v. Riley Briones.  The original ruling in Briones had a split Ninth Circuit panel affirming the district court's adoption of the federal sentencing guidelines as the key factor in the course imposing a life without parole federal sentence on a juvenile offender.   But after granting en banc review, the Ninth Circuit has now vacated the LWOP sentence and remanded for resentencing by a 9-2 vote.  The new majority opinion in Briones, available here, has a lot to say about Eighth Amendment jurisprudence and juvenile sentencing, and here are a few excerpts:

Taken together, Miller, Montgomery, and Pete make clear that a juvenile defendant who is capable of change or rehabilitation is not permanently incorrigible or irreparably corrupt; that a juvenile who is not permanently incorrigible or irreparably corrupt is constitutionally ineligible for an LWOP sentence; and that a juvenile’s conduct after being convicted and incarcerated is a critical component of the resentencing court’s analysis....

We reaffirm that when a substantial delay occurs between a defendant’s initial crime and later sentencing, the defendant’s post-incarceration conduct is especially pertinent to a Miller analysis. See id.; see also Montgomery, 136 S. Ct. at 736 (“The petitioner’s submissions [of his reformation while in prison] are relevant . . . as an example of one kind of evidence that prisoners might use to demonstrate rehabilitation.”).  The key question is whether the defendant is capable of change.  See Pete, 819 F.3d at 1133.  If subsequent events effectively show that the defendant has changed or is capable of changing, LWOP is not an option.

The district court’s heavy emphasis on the nature of Briones’s crime, coupled with Briones’s evidence that his is not one of those rare and uncommon cases for which LWOP is a constitutionally acceptable sentence, requires remand.  We do not suggest the district court erred simply by failing to use any specific words, see Montgomery, 136 S. Ct. at 735, but the district court must explain its sentence sufficiently to permit meaningful review.  See Carty, 520 F.3d at 992 (“Once the sentence is selected, the district court must explain it sufficiently to permit meaningful appellate review . . . . What constitutes a sufficient explanation will necessarily vary depending upon the complexity of the particular case . . . .”).  When a district court sentences a juvenile offender in a case in which an LWOP sentence is possible, the record must reflect that the court meaningfully engaged in Miller’s central inquiry.

And here is a concluding substantive paragraph from the dissent:

Thus, despite evidence of Briones’s rehabilitation, youth when the heinous crimes were committed, and youth-related characteristics, the record supports that Briones’s crimes reflect permanent incorrigibility, as opposed to transient immaturity. The district court therefore imposed a permissible sentence.  Notably, the majority does not conclude that a life without parole sentence is impermissible in this case. Instead, although the majority claims otherwise, the majority’s opinion vacates the district court’s sentence because the district court failed to find that Briones was permanently incorrigible. But as discussed above, there is no requirement for the district court to make any specific findings before imposing a life without parole sentence.  In short, the majority, citing Montgomery, states that it “do[es] not suggest the district court erred simply by failing to use any specific words,” Maj. at 19.  But in clear contravention of Montgomery, that is precisely why it has reversed. We remand for the district court to do again what it has already done.

"The Founders' Forfeiture"

The title of this post is the title of this new paper by Kevin Arlyck now available via SSRN that seems like especially good Fourth of July week reading. Here is its abstract:

Civil forfeiture is, in a word, controversial.  Critics allege that law enforcement authorities use forfeiture as means of appropriating valuable assets from often-innocent victims free of the constraints of criminal process.  Yet despite recent statutory reforms, a significant obstacle to meaningful change remains: Under longstanding Supreme Court precedent, the Constitution imposes few limits on civil forfeiture.  Relying on a perceived historical tradition of unfettered government power to seize and keep private property in response to legal violations, the Court has consistently rejected claims to constitutional protections.  Faced with an unfriendly historical tradition, forfeiture’s critics have tried to limit history’s relevance by asserting that forfeiture was traditionally used for limited purposes, but such arguments have fallen on deaf ears.

As this Article explains, forfeiture’s critics are right, but for the wrong reasons.  Based on original research into more than 500 unpublished federal forfeiture cases from 1789 to 1807, this Article shows — for the first time — that forfeiture in the Founding era was significantly constrained.  But not by judges. Instead, concern over forfeiture’s potential to impose massive penalties for minor and technical legal violations spurred Alexander Hamilton and the First Congress to establish executive-branch authority to return seized property to those who plausibly claimed a lack of fraudulent intent.  What is more, Hamilton and subsequent Treasury Secretaries understood themselves to be obligated to exercise that authority to its fullest extent — which they did, remitting forfeitures in over 90% of cases presented to them.   The result was an early forfeiture regime that was expansive in theory, but in practice was constrained by a deep belief in the impropriety of taking property from those who inadvertently broke the law.

Understanding early forfeiture’s true nature has significant implications for current debate about its proper limits.  The existence of meaningful constraints in the Founding era calls into question key historical propositions underlying the Court’s permissive modern jurisprudence, and suggests that history may offer an affirmative basis for identifying greater constitutional protections today.  This is also an opportune moment to reexamine forfeiture’s historical bona fides.  In addition to a growing public outcry over civil forfeiture, there are hints that members of the current Supreme Court may be willing to reconsider its constitutionality.

Two more notable imprisonment reductions using § 3582(c)(1)(A), one for LWOP term and another to remedy BOP's "abysmal health care"

As regular readers know, ever since the passage of the FIRST STEP Act, I have been talking up 18 U.S.C. § 3582(c)(1)(A) as a critical and valuable new mechanism to reduce problematic prison sentences in any and every case in which a defendant presents "extraordinary and compelling reasons" supporting the reductions.  Earlier this month, I posted here and posted here two notable examples of judges finding notable reasons sufficient to reduce a sentence while making clear that the new FIRST STEP Act allows a judge broad authority to "determine whether any extraordinary and compelling reasons" justified a reduction in a prison term.  US v. Cantu, No. 1:05-CR-458-1, 2019 WL 2498923 (S.D. Tex. June 17, 2019) (finding extraordinary that government urged release to home confinement); see also US v. Cantu-Rivera, Cr. No. H-89-204, 2019 WL 2578272 (SD Tex. June 24, 2019) (finding FIRST STEP Act amendment of LWOP sentences supported finding of "extraordinary and compelling reasons").

Now I see that just late last week, at least two more district court issues two more important reductions in prison terms based on § 3582(c)(1)(A).  First, in US v. Johns, No. CR 91-392-TUC-CKJ, 2019 WL 2646663 (D. Ariz. June 27, 2019), a judge decided to reduce an LWOP drug conspiracy term because the defendant was 81 years old, now 81 years old, had served almost 23 years of his sentence and is "is rapidly deteriorating due to his age." Though an emphasis on old and and health is not unusual in this setting, I think the reduction of any federal LWOP sentence is noteworthy. 

Second, and even more interesting, US v. Beck, No. 1:13-CR-186-6, 2019 WL 2716505 (M.D.N.C. June 28, 2019).  In Beck, the judge authored a lengthy explanation for her reduction of the sentence to time served, and the start and conclusion provides an overview of the court's thinking:

Angela M. Beck is a federal prisoner serving a sentence for drug and firearms offenses.  She has cancer in her left breast and the Bureau of Prisons has not provided appropriate medical care for her disease, with repeated delays that have prevented her from timely obtaining urgent tests and treatment.  In the meantime, her cancer spread to her lymph nodes and possibly to her right breast.  Ms. Beck has filed a motion under the First Step Act of 2018 seeking immediate compassionate release.  Because Ms. Beck’s invasive cancer and BoP’s history of indifference to her treatment constitute extraordinary and compelling reasons, and because the § 3553(a) factors support a sentence reduction to time served, the motion for compassionate release will be granted....

Ms. Beck committed serious drug and firearms offenses with her husband in 2012 and 2013 that warrant substantial punishment.  She has served over six years of her sentence, nearly two of them with breast cancer treated so untimely as to significantly reduce her chances of survival.  Ms. Beck’s invasive cancer and the abysmal health care BoP has provided qualify as “extraordinary and compelling reasons” warranting a reduction in her sentence to time served.  See 18 U.S.C. 3582(c)(1)(A)(i).  While the old policy statement is not directly applicable to motions filed by defendants, a reduction is consistent with its general guidance and the Sentencing Commission’s intent.  With appropriate supervision, Ms. Beck poses little risk of recidivism or danger to the community.  She has already served an arduous sentence, and the § 3553 factors support a sentence reduction.  As such, Ms. Beck is entitled to compassionate release.

Just a few more remarkable stories made possible by the FIRST STEP Act.  I know many advocates hoped and wanted for the FIRST STEP Act to go a lot further and do a lot more.  But I continue to see a number of provisions of the Act as passed, particularly 18 U.S.C. § 3582(c)(1)(A) and a few other provisions, as have a whole lot of potential to do a whole lot of good if used well.  (Indeed, I am hoping folks hoping to get retroactive relief from recent SCOTUS decisions like Rehaif and Davis and Haymond come to see the power and potential of § 3582(c)(1)(A)(i).

A few prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

• Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court? 
• Encouraging new reports about encouraging new compassionate release realities thanks to FIRST STEP Act
• Highlighting how judges can now bring needed compassion to compassionate release after FIRST STEP Act 
• Is anyone collecting and analyzing sentence reduction orders under § 3582(c)(1) since passage of the FIRST STEP Act?
• Good day for thinking hard about sentencing second looks and second chances
• New District Court ruling confirms that "any extraordinary and compelling reasons" can now provide basis for reducing imprisonment under 18 U.S.C. § 3582(c)(1)(A) 
• District Court finds statutory sentence reform among "extraordinary and compelling reasons" for reducing LWOP sentence under 18 U.S.C. § 3582(c)(1)(A)

Based on statutory proportionality review, split New Mexico Supreme Court dismiss death sentences for two murderers left on state's death row a decade after legislative abolition

As well reported in this Courthouse News Service piece, headlined "New Mexico Supreme Court Vacates Two Remaining Death Sentences," the final anti-death penalty shoe finally dropped in New Mexico a full decade after the state's legislature repealed its death penalty.  Here ere are the basics:

A divided New Mexico Supreme Court Friday set aside the death sentences of the last two men awaiting execution in the state, ruling that the penalties were disproportionate in comparison to sentences in similar murder cases.  The death penalty was abolished in New Mexico in 2009, but the death sentences of Timothy Allen and Robert Fry remained in place, because they were convicted and sentenced years before the change.

Allen and Fry were sentenced under a New Mexico law that requires the state’s highest court to review “comparative proportionality” in capital punishment cases.  State lawmakers adopted the 1976 law to ensure that the death penalty was not being imposed in ways that would violate inmates’ constitutional protections against cruel and unusual punishment.

Writing for the majority Friday, New Mexico Supreme Court Justice Barbara J. Vigil said justices found “no meaningful distinction” between the circumstances of Allen and Fry’s cases and those of similar murder cases.  “The absence of such a distinction renders the ultimate penalty of death contrary to the people’s mandate that the sentence be proportionate to the penalties imposed in similar cases,” Vigil said in the 147-page opinion.

Retired Justices Edward L. Chávez and Charles W. Daniels joined the majority decision, which did not address concerns over potential violations to Allen and Fry’s constitutional rights. Daniels wrote in a concurring opinion that “equally culpable” defendants in murder cases escaped the death penalty, adding that New Mexico has not imposed the death penalty in a “proportionate” way.  “A killer’s crimes reflect who he is,” Daniels said.  “What we do to the killer reflects who we are.”

Chief Justice Judith K. Nakamura wrote in the dissenting opinion that the majority misinterpreted the law.  “The Majority misstates the governing law and has done what our Legislature would not: repeal the death penalty in its entirety for all defendants in New Mexico,” said Nakamura, who was joined in dissent by retired Justice Petra Jimenez Maes.  “They perceive in the language authority to conclude that, because so few offenders in New Mexico have ever been sentenced to die, no offenders shall ever again be sentenced to die in New Mexico.”

The full 147-page ruling is available at this link, and here is how the Court's opinion gets started:

In this case we revisit our statutory responsibility to ensure that the death penalty is reserved for the most heinous crimes.  Since 1979, the New Mexico Legislature has directed this Court to ensure that “the death penalty shall not be imposed if . . . the sentence of death is excessive or disproportionate to the penalty imposed in similar cases.” NMSA 1978, § 31-20A-4(C)(4) (1979, repealed 2009).

In 2009, the Legislature abolished the death penalty as a sentencing option for murders committed after July 1, 2009.  Today, Petitioners Robert Fry and Timothy Allen, who committed their crimes before 2009, are the last inmates who remain on death row in New Mexico.  Fry and Allen filed Petitions for Writs of Habeas Corpus seeking to dismiss their death sentences in light of the prospective-only application of the repeal.

In this consolidated appeal of the district court’s denial of Petitioners’ motions to dismiss their death sentences, we hold that Petitioners’ death sentences are disproportionate and violate Section 31-20A-4(C)(4).  Guided by our recognition that our Legislature intended for comparative proportionality review to protect against the arbitrary imposition of the death penalty, we conclude that there is no meaningful basisfor distinguishing Fry and Allen from the many similar casesin which the death penalty was not imposed.  Because Petitioners’ death sentences are statutorily disproportionate to the penalties imposed in similar cases, we remand each case to the district court to impose a sentence of life imprisonment.

Though taking longer in New Mexico than elsewhere, this ruling continues the well-established trend of state courts finding one way or another to give retroactive effect to the statutory repeal of the death penalty even when a legislature has sought to explicitly provide for the carrying out of prior lawful death sentence.

Just how huge is the mess and challenge for lower federal courts after SCOTUS decisions in Davis, Haymond and Rehaif?

I feel like, in order to really understand their import, I will need weeks, maybe months, to reread and reflect on the three decisions that were big wins for federal criminal defendants handed down by SCOTUS in the last week.  But, of course, lower courts do not have an academic's luxury of time to make sense of US v. Davis, No. 18-431 (S. Ct. June 24, 2019) (available here; discussed here), US v. Haymond, No. 17-1672 (S. Ct. June 26, 2019) (available here; discussed here) and Rehaif v. US, No. 17-9560 (S. Ct. June 21, 2019) (available here; discussed here). 

I suspect some lower courts are already starting to get motions from federal prisoners or defendants in pending cases that are based on these rulings.  And the Supreme Court's final order list this morning has a bunch of remands based on these rulings that highlight the coming work for federal Circuit Courts as well.  (For those interested in an accounting, I counted sixth Davis GVRs, one Haymond GVR, and four Rehaif GVRs.)

I will not try in this post to sort out the likely litigation echoes of these cases, but I will try to crowd source opinions as to which of these cases will prove most impactful and consequential.  Of course, impactful and consequential can be defined lots of different ways — e.g., it might be gauged based on the number of disruptions of prior convictions and sentences, emergence of a new jurisprudence, possible legislative responses, total volume of cites and litigation, etc.  Without getting too bogged down in trying to define these terms, I just want to put the question out there for collective engagement among the always informed and thoughtful readers of this blog:

Among the trio of Davis, Haymond and Rehaif, which of these recent rulings by SCOTUS for a federal criminal defendant do you think will prove to be the most impactful and consequential?

SCOTUS, in final order of OT 2018, adds two more federal criminal cases to docket for next Term

The Supreme Court released its final order list for the Term today, and it unsurprisingly starts with a bunch of remands based on its recent big criminal rulings.  I will do a distinct post on those remands, and here will instead focus on a few of the 11+ cases in which SCOTUS granted certiorari review for hearing the cases in the fall.  Most of these cases (some of which are consolidated) deal with civil issues, but I see two that are federal criminal matters: Kelly, Bridget v. United States, No. 18-1059, and Shular, Eddie v. United States, No. 18-6662.

SCOTUSblog has this page covering Kelly, which emerges from the high-profile "Bridgegate" scandal in New Jersey and present this issue:  "Whether a public official 'defraud[s]' the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision."

And the Shular case is yet another case raising an important technical issue in the application of the Armed Career Criminal Act, with the cert petition presenting this question: "Whether the determination of a 'serious drug offense' under the Armed Career Criminal Act requires the same categorical approach used in the determination of a 'violent felony' under the Act?"

Last but not last, the SCOTUS order list ends with a cert denial in a South Carolina case, McGee v. McFadden, No. 18-7277, which prompted an eight-page dissent from Justice Sotomayor starting this way:

Pro se petitioner Shannon McGee has a strong argument that his trial and resulting life sentence were fundamentally unfair because the State withheld material exculpatory evidence.  See Brady v. Maryland, 373 U. S. 83, 87 (1963).  The state courts offered flawed rationales for rejecting that claim. Nevertheless, the District Court denied McGee federal habeas relief, and both the District Court and the U.S. Court of Appeals for the Fourth Circuit summarily declined to grant McGee a “certificate of appealability” (COA), 28 U.S.C. §2253(c), concluding that his claim was not even debatable.  Without a COA, McGee cannot obtain appellate review on the merits of his claim.  See ibid.  Because the COA procedure should facilitate, not frustrate, fulsome review of potentially meritorious claims like McGee’s, I would grant the petition for writ of certiorari and reverse the denial of a COA.

"Somewhere Between Death Row and Death Watch: How Courts Have Precluded Capital Defendants From Raising Execution-Related Claims"

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

Most discussion on capital punishment focus on the merits of the death penalty generally.  While those arguments are surely important, for as long as capital punishment remains in the United States, safeguarding defendants’ rights throughout the capital sentencing process — including through execution — is crucial.  As part of that effort, this Article identifies a portion of the often-overlooked capital appellate process that effectively divests defendants of significant claims.

This issue is illustrated by the U.S. Supreme Court’s recent decisions in Bucklew v. Precythe and Dunn v. Price, which provided insight in a lot of contexts.  Contributing to the conversation on the Court’s recent decisions, this Article explains how Bucklew and Dunn provided insight into not-so-obvious aspects of capital punishment with which defendants often struggle.  Specifically, Bucklew and Dunn illustrate the procedural predicament defendants face in raising execution- and warrant-related claims.  On one hand, courts determine that execution-related claims are not ripe, or premature, when raised before a defendant is under an active death warrant.  On the other, as in Bucklew and Dunn, when the defendant is under an active death warrant, courts determine the claims are brought too late, suspecting a game of delay.  Thus, as this Article explains, the proper time for defendants to raise execution-related claims is caught somewhere between death row and death watch, and courts have essentially precluded defendants from properly raising and being heard on these issues.

Addressing this concern, this Article canvasses potential solutions.  Ultimately, this Article concludes that the best solution is for states to enact and courts to enforce uniform warrant procedures, an example of which is outlined here. 

Taking more stock of the many shades of Justice Neil Gorsuch in criminal cases

In this post on Monday, fresh on the heels of noticing Justice Neil Gorsuch's notable votes for the claims of federal criminal defendants in US v. Gundy and Rehaif v. US and Davis v. US, I reviewed Justice Gorsuch's interesting and varied votes and role in big contested criminal cases from the SCOTUS docket this Term.  Of course, Wednesday brought another data point via the Court's ruling in US v. Haymond, a case in which Justice Gorsuch provided a key swing vote in a 5-4 ruling for another federal criminal defendant and wrote a potent plurality opinion extolling the importance of the Sixth Amendment jury trial right (basics here).

But lest one let four notable late-in-the-Term votes unduly shape one's view of Justice Gorsuch's approach in criminal cases, Leah Litman has this new Slate commentary designed to make sure nobody comes to think Justice Gorsuch is always channeling the late Justice William Brennan.  The piece is bluntly headlined "Neil Gorsuch Is No Friend to Criminal Defendants," and everyone interested in this topic should read the whole thing.  Here are excerpts:

Writers like to depict him as a friend to criminal defendants; the tone of several pieces even makes it sounds like he is among the most-criminal-defendant-friendly justices on the modern court.  And some commentators who cannot resist the blazing hot countertakes have even suggested that Gorsuch is better for criminal defendants than a Justice Merrick Garland would have been.

Where to start?  Even just a few cases from the Supreme Court’s current term make it clear that Gorsuch is no friend to criminal defendants.  The fact that he rules against the government in some number of criminal cases, and occasionally departs from his more law-and-order conservative colleagues in doing so, does not change that fact.  At most, Gorsuch is as good for criminal defendants as the least-criminal-defendant-friendly Democratic appointee.  That hardly makes him a hero.  On some cases, Gorsuch has played the villain....

It is true that Gorsuch sometimes departs from his conservative colleagues and rules for criminal defendants.  It is also true that his seemingly libertarian instincts lead him to be more friendly to criminal defendants than Justice Brett Kavanaugh....  But all of these examples hardly establish that Gorsuch is a friend to criminal defendants. The fact that his aggressive approach to constitutional law, which largely frees him from the constraints of stare decisis, occasionally leads him to reshape the law in ways that favor criminal defendants should not obscure the many times that he has reached out to reshape the law in ways that would meaningfully harm them.

Notably, Ramesh Ponnuru already has this partial response to this piece at the National Review under the headline "A Gorsuch Made Mostly of Straw." Here is how it closes:

The attention to Gorsuch’s pro-criminal defendant rulings really could create a misleading impression about his jurisprudence generally and it is worth providing a more complete sense of it.  But I am left thinking that Gorsuch’s defenders have mostly not argued for him as a friend of criminal defendants — nor should they have, since a Supreme Court justice shouldn’t approach the kind of cases that come before him with a bias for or against criminal defendants.

My quick take it that Justice Gorsuch is particularly drawn to arguments from defendants (especially federal defendants) that concern the structural elements of the Constitution and our criminal justice system that protect individual liberty.  At the same time, he seems particularly unmoved by arguments made by state defendants (especially state capital defendants) that concern when he may consider "mere" matters of justice administration that can and should be trusted to the states. In this regard, he seems to approach the criminal docket somewhat akin to the Justice he replaced, Justice Antonin Scalia, and that is enough for me to anoint him the most interesting person on the Court in criminal cases (see silly picture above).

What strikes me as particularly interesting for the Court as a whole with respect to its criminal jurisprudence is the fact that the Chief Justice and Justice Brett Kavanaugh seem to becoming the yang to Justice Gorsuch's yin.  In capital cases, Chief Justice and Justice Kavanaugh seem often at least a bit more inclined to vote in favor of a capital defendant (Madison v. Alabama and Flowers v. Mississippi) come to mind, whereas in some of the structural cases they are disinclined to rule for a federal defendant (as in Davis v. US and US v. Haymond).  Interesting times.

Prior related post:

• Accounting Justice Gorsuch's votes (and opinions) so far this SCOTUS Term in big criminal cases 

"The Future of Presidential Clemency Decisionmaking"

The title of this post is the title of this notable and timely new article authored by Paul Larkin and now available via SSRN.  Here is its abstract:

The Framers gave the president the clemency power when the federal government and the nation were in their infancy.  The president has far more demands on his time today than George Washington did in 1789.  The time necessary to make clemency decisions, even if done properly (and it has not always been done that way) alone could keep a large number of aides busy full time, let alone exhaust a chief executive troubled by the prospect that too many innocent people are rotting in prison or that too many people have been sentenced to the slow death of unnecessarily long terms of imprisonment.  Accordingly, the question is whether the president should leave clemency judgments to others, particularly ones who are professionals at sentencing.

Some scholars have suggested reinstituting some form of parole.  Yet, I think that we not will see a rebirth of parole any time soon.  The criticisms that persuaded Congress to abandon parole in the Sentencing Reform Act of 1984 have not disappeared or lost their force.  Proof can be seen in the fact that, during the debate over the First Step Act of 2018, neither the House of Representatives nor the Senate seriously considered reinstituting parole to address the overcrowding that federal prisons have witnessed over the last decade-plus.  Other scholars urge Congress to adopt a “second-look” resentencing system.  That also is unlikely.  The suggestion that Congress reinstitute some type of second-look mechanism would be scorned as the attempted resurrection of parole under an alias.  Indeed, the First Step Act approached this issue by using well-settled good-time and earned-time credit systems to decide whether and when to release prisoners, not a second-look mechanism.

A third option, however, can be found in a provision of the First Step Act modifying the gatekeeper role played by the Federal Bureau of Prisons (BOP) since the Sentencing Reform Act of 1984 went into effect.  An argument can be made that district courts now can resentence prisoners because prisoners can now go to court to argue that “extraordinary and compelling reasons” justify their early release without needing the BOP to ask a court for that relief.  That type of change to the law, however, is far from the type of interstitial fleshing out that Congress traditionally delegates to others.  Nonetheless, it remains to be seen how the Supreme Court will resolve that issue.

SCOTUS, via splintered 5-4 ruling, decides that supervised release revocation procedures used in Haymond are unconstitutional

Via a divided opinion thanks to the separate vote of Justice Breyer, the Supreme Court this morning ruled in favor of a federal criminal defendant's claim that the procedures used to revoke his federal supervised release term and send him back to prison was unconstitutional in US v. Haymond, No. 17-1672 (S. Ct. June 26, 2019) (available here).  Here is the vote/opinion break down in the case:

GORSUCH, J., announced the judgment of the Court and delivered an opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. BREYER, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS and KAVANAUGH, JJ., joined.

Here is how Justice Gorsuch's lead plurality opinion starts:

Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty.  That promise stands as one of the Constitution’s most vital protections against arbitrary government.  Yet in this case a congressional statute compelled a federal judge to send a man to prison for a minimum of five years without empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt.  As applied here, we do not hesitate to hold that the statute violates the Fifth and Sixth Amendments.

Because Justice Breyer's fifth vote is essential to the result here, his short concurring opinion demands quoting at length. So:

I agree with much of the dissent, in particular that the role of the judge in a supervised-release proceeding is consistent with traditional parole. See post, at 9–10 (opinion of ALITO, J.).  As 18 U.S.C. §3583 makes clear, Congress did not intend the system of supervised release to differ from parole in this respect. And in light of the potentially destabilizing consequences, I would not transplant the Apprendi line of cases to the supervised-release context.  See post, at 4–5....

Nevertheless, I agree with the plurality that this specific provision of the supervised-release statute, §3583(k), is unconstitutional.  Revocation of supervised release is typically understood as “part of the penalty for the initial offense.”  Johnson v. United States, 529 U. S. 694, 700 (2000).  The consequences that flow from violation of the conditions of supervised release are first and foremost considered sanctions for the defendant’s “breach of trust” — his “failure to follow the court-imposed conditions” that followed his initial conviction — not “for the particular conduct triggering the revocation as if that conduct were being sentenced as new federal criminal conduct.”  United States Sentencing Commission, Guidelines Manual ch. 7, pt. A, intro. 3(b) (Nov. 2018); see post, at 12–13.  Consistent with that view, the consequences for violation of conditions of supervised release under §3583(e), which governs most revocations, are limited by the severity of the original crime of conviction, not the conduct that results in revocation.  See §3583(e)(3) (specifying that a defendant may as a consequence of revocation serve no “more than 5 years in prison if the offense that resulted in the term of supervised release is a class A felony, [no] more than 3 years in prison if . . . a class B felony,” and so on).

Section 3583(k) is difficult to reconcile with this understanding of supervised release.  In particular, three aspects of this provision, considered in combination, lead me to think it is less like ordinary revocation and more like punishment for a new offense, to which the jury right would typically attach.  First, §3583(k) applies only when a defendant commits a discrete set of federal criminal offenses specified in the statute.  Second, §3583(k) takes away the judge’s discretion to decide whether violation of a condition of supervised release should result in imprisonment and for how long.  Third, §3583(k) limits the judge’s discretion in a particular manner: by imposing a mandatory minimum term of imprisonment of “not less than 5 years” upon a judge’s finding that a defendant has “commit[ted] any” listed “criminal offense.”

Taken together, these features of §3583(k) more closely resemble the punishment of new criminal offenses, but without granting a defendant the rights, including the jury right, that attend a new criminal prosecution.  And in an ordinary criminal prosecution, a jury must find facts that trigger a mandatory minimum prison term. Alleyne, 570 U. S., at 103.

Accordingly, I would hold that §3583(k) is unconstitutional and remand for the Court of Appeals to address the question of remedy.  Because this is the course adopted by the plurality, I concur in the judgment.

And here is how Justice Alito's dissent starts:

I do not think that there is a constitutional basis for today’s holding, which is set out in JUSTICE BREYER’s opinion, but it is narrow and has saved our jurisprudence from the consequences of the plurality opinion, which is not based on the original meaning of the Sixth Amendment, is irreconcilable with precedent, and sports rhetoric with potentially revolutionary implications.  The plurality opinion appears to have been carefully crafted for the purpose of laying the groundwork for later decisions of much broader scope.

WOW! I am surprised and disappointed that the Chief Justice and Justices Thomas and Kavanaugh all sign off on Justice Alito's dissent. I thought for sure one or more of them would be inclined to vote with the defendant in this case on at least a narrow ground.  But it seems Justice Gorsuch was so eager to swing for the Fifth and Sixth Amendment fences, he could not get any of these other Justices to stay on his team in this notable case.  I will need a few hours, probably a few days, to figure out just what this means now and for the future of Fifth and Sixth Amendment sentencing jurisprudence.  For now, I will just say WOW again.

UPDATE: I see this new post at Crime & Consequences on this ruling with this adroit title "An Odd 'Supervised Release' Law Bites the Apprendi Dust."

District Court finds statutory sentence reform among "extraordinary and compelling reasons" for reducing LWOP sentence under 18 U.S.C. § 3582(c)(1)(A)

As regular readers know, ever since the passage of the FIRST STEP Act, I have been talking up 18 U.S.C. § 3582(c)(1)(A) as a critical and valuable new mechanism to reduce problematic prison sentences in any and every case in which the defendant presents "extraordinary and compelling reasons" for the reductions.  Though to date it seems this imprisonment-reduction authority granted by 3582(c)(1)(A) has been used almost only for so-called compassionate release situations in which a prisoner was extremely ill or had an extreme family situation, I posted here yesterday a recent example of a judge finding other reasons sufficient to reduce a sentence and making clear that the new FIRST STEP Act allows a judge broad authority to "determine whether any extraordinary and compelling reasons" justified a reduction in a prison term.  United States v. Cantu, No. 1:05-CR-458-1, 2019 WL 2498923 (S.D. Tex. June 17, 2019).

Interestingly, around the time I was blogging about the Cantu ruling, another US District Court judge was issuing another important § 3582(c)(1)(A) ruling in United States v. Cantu-Rivera, Cr. No. H-89-204 (SD Tex. June 24, 2019) (available for download below).  This one, penned by Judge Sim Lake, is the first cases I have seen in which a defendant serving an LWOP sentence has had his sentence reduced to time served (30 years!) via a motion under § 3582(c)(1)(A).  This new Cantu-Rivera ruling, which runs only six pages and merits a full read, includes these notable passages:

Mr. Cantu-Rivera meets the age-related definition of extraordinary and compelling circumstances in U.S.S.G.§ lBl.13, comment. (n.l(B)).  He is 69 years old, he is experiencing serious deterioration in physical health because of the aging process (arthritic conditions in multiple joints, cataracts, diabetes, prostrate conditions), and he has served 30 years in prison....

The Court also recognizes the extraordinary degree of rehabilitation Mr. Cantu-Rivera has accomplished during the 30 years he has been incarcerated.  That rehabilitation includes extensive educational achievements, including Mr. Cantu-Rivera's completion of over 4,000 hours of teaching while in federal prison to complete a Teaching Aide apprenticeship with the Department of Labor.  The extraordinary degree of rehabilitation is also evident in Mr. Cantu-Rivera's service as a teaching assistant in several prison facilities for high-school equivalency and English-as-a­ Second-Language programs and his service in the BOP's suicide watch program, helping to care for inmates placed in solitary confinement due to suicide attempts.  Finally, the Court recognizes as a factor in this combination the fundamental change to sentencing policy carried out in the First Step Act's elimination of life imprisonment as a mandatory sentence solely by reason of a defendant's prior convictions.  § 401(a)(2)(A)(ii), 132 Stat. at 5220 (codified at 21 U.S.C. § 841(b)(1)(A)).  The combination of all of these factors establishes the extraordinary and compelling reasons justifying the reduction in sentence in this case.

Download Cantu-Rivera Opinion

A few prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

• Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court? 
• Encouraging new reports about encouraging new compassionate release realities thanks to FIRST STEP Act
• Highlighting how judges can now bring needed compassion to compassionate release after FIRST STEP Act
• Is anyone collecting and analyzing sentence reduction orders under 3582(c)(1) since passage of the FIRST STEP Act?
• Good day for thinking hard about sentencing second looks and second chances
• New District Court ruling confirms that "any extraordinary and compelling reasons" can now provide basis for reducing imprisonment under 3582(c)(1)(A)

"Which Presidential Candidate Would Give David Barren His Freedom?"

The title of this post is the title of this notable new Filter commentary authored by Rory Fleming.  I recommend the piece in full, and here are excerpts:

David Barren is a Black man from Pittsburgh who was sentenced in 2010 to life without parole in the federal criminal justice system.  That was during President Obama’s tenure — despite his heavily implying that no one should serve more than 20 years in prison for a nonviolent drug offense — and while Attorney General Eric Holder ran the Department of Justice.

Barren was accused of leading a conspiracy involving the distribution of over 150 kilograms of cocaine — though trial transcripts show that federal prosecutors, the defense attorney and the judge had huge difficulty determining how much cocaine there really was.  While the government claimed that there was $1.2 million of drug money to be seized, court documents show it was $76,000 plus Barren’s house, worth approximately $500,000.

Anrica Caldwell, Barren’s fiancée, believes that federal prosecutors on the case demanded life in retaliation for his actually taking them to trial — something of a unicorn in the federal justice system, in which 97 percent of cases end in plea deals.  At least one of his co-conspirators got only four years in prison for the conspiracy, after testifying against Barren.

Obama felt bad for him, but only to a point. He commuted Barren’s sentence to 30 years on his final day in office.  As Barren himself wrote in an email to Reason reporter CJ Ciaramella, he got a “reduction from LIFE in letters, to life in letters and numbers.”

Caldwell, an elementary school teacher in Pittsburgh, is the vice president of CAN-DO, an organization that tirelessly fights for clemency for nonviolent federal drug prisoners. “Baby, I’m gonna die in here,” Barren told her in a call from prison in January 2017.  He is currently 54, and not due to be released until 2034....

But at least one presidential candidate, Senator Cory Booker — recognizing that as things stand, nothing is going to change in time to save people like Barren — is going for broke. Indeed, Booker’s new clemency plan aims at reducing sentences for potentially tens of thousands of people serving federal time for drugs.  Unlike Obama, he said he would do it by executive order — constituting a White House clemency recommendation panel that is not hamstrung by the US Department of Justice, which currently houses the Office of the Pardon Attorney.

This would arguably represent the first time in US history that a president told federal line prosecutors to stuff their hyper-carceral, alarmist agenda.  Obama buckled significantly to their pressure by leaving many people like Barren out to dry on de facto life sentences. “People assume that Obama’s clemency initiative means 1,700 people are kicking their feet up now at home,” said Caldwell, “and that’s just not true.”

Barren’s case is pending before the Trump White House for additional clemency relief, and Caldwell hopes this could be seen as an opportunity for Trump to prove he is serious about the issue before an election year.

Two other presidential candidates could follow Booker’s ambitious clemency reasoning.  In the Queens District Attorney race, perhaps the biggest criminal justice referendum of the year, both Bernie Sanders and Elizabeth Warren have joined liberal media in endorsing Tiffany Cabán, who promises more proportional sanctions for both nonviolent and violent crime.

Sanders and Warren should talk about their plans for criminal justice reform in more detail, as it is the biggest civil rights issue of our time.  Would they give a man like David Barren a chance? Or would they, too, let his clock run out before he can see his loved ones from outside of the bars?

A few of many older and recent related posts: 

• Senator Cory Booker sets out "Restoring Justice Initiative" focused on providing clemency relief to thousands of federal offenders
• Another notable report on clemency suggesting Prez Trump will be "pardoning a lot of people — pardons that even Obama wouldn’t do"
• Will Prez Trump deliver on all the clemency "tidal wave" of hopefulness he has engendered?
• How about a few clemency grants, Prez Trump, to really honor vets in need on Veterans Day?
• New letter urges Prez Trump "to make lasting reforms to the clemency process by removing its administration from the Department of Justice" 
• "The Clemency Process Is Broken. Trump Can Fix It."
• "Searching for A Kardashian: Kim helped get clemency for Alice Johnson, who will help me?"
• Senator Klobuchar talking up "second step" criminal justice reforms with a focus on the clemency process

New District Court ruling confirms that "any extraordinary and compelling reasons" can now provide basis for reducing imprisonment under 18 U.S.C. § 3582(c)(1)(A)

As regular readers know, even since the passage of the FIRST STEP Act, I have been talking up 18 U.S.C. § 3582(c)(1)(A) as a critical and valuable new mechanism to reduce problematic prison sentences in any and every case in which the defendant presents "extraordinary and compelling reasons" for the reductions. To date, it seemed that the imprisonment reduction authority granted by 3582(c)(1)(A) had been used almost only for so-called compassionate release situations in which a prisoner was extremely ill or had an extreme family situation.

But now, thanks to this posting by Shon Hopwood, I see that District Court Judge Marina Garcia Marmolejo resentenced Conrado Cantu under this provision via a thorough and thoughtful order explaining why, in the wake of the FIRST STEP Act, "when a defendant brings a motion for a sentence reduction under the amended provision, the Court can determine whether any extraordinary and compelling reasons other than those delineated in U.S.S.G. § 1B1.13 cmt. n.1(A)–(C) warrant granting relief." United States v. Cantu, No. 1:05-CR-458-1, 2019 WL 2498923 (S.D. Tex. June 17, 2019) (reprinted opinion available for download below).

As Shon explains in this post, this Cantu case may be the first in which a federal judge has "held that nothing in the statutory text of § 3582(c), nor the Sentencing Guidelines, precludes a judge from making its own determination of what are 'extraordinary and compelling' circumstances warranting a reduction of sentence."  Shon and I think this is exactly the right reading of 18 U.S.C. § 3582(c)(1)(A) after the changes made by the FIRST STEP Act.  Before FIRST STEP, the Bureau of Prisons was the gatekeeper for what motions should be brought for a reduction of imprisonment based on "extraordinary and compelling reasons."  Congress was clearly discontent with how that was going (and for good reason), and so now judges are to decide without a gatekeeper when  a term of imprisonment should be reduced based on "extraordinary and compelling reasons."

In light of all the big federal criminal justice rulings on behalf of criminal defendants in the last few days (especially Rehaif and Davis), I am wondering and hoping litigants and judges might now start to see the value of using 18 U.S.C. § 3582(c)(1)(A) to operationalize some new precedents rather than rely only or even primarily on 2255 motions.  There are a number of problematic procedural issues that can arise when a prisoner tries to get a favorable SCOTUS ruling applied retroactively through a 2255 motion.  But if the prisoner can show that a new SCOTUS ruling is part of what provides "extraordinary and compelling reasons" for a prison reduction (and such a reduction is in keeping with the traditional 3553(a) factors), perhaps motions via 3582(c)(1)(A) will go down easier than 2255 motions.

Download United States v Cantu

A few prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

• Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court? 
• Sad start to what should become happier compassionate release tales after passage of FIRST STEP Act 
• Encouraging new reports about encouraging new compassionate release realities thanks to FIRST STEP Act
• Highlighting how judges can now bring needed compassion to compassionate release after FIRST STEP Act 
• Federal judge pens extraordinary and compelling order requesting US Attorney to vacate old stacked 924(c) conviction in extraordinary and compelling case 
• Is anyone collecting and analyzing sentence reduction orders under § 3582(c)(1) since passage of the FIRST STEP Act?
• Good day for thinking hard about sentencing second looks and second chances

Gundy, Rehaif and Davis, oh my: object lessons in results-oriented jurisprudence

With apologies to Dorothy and with uncertainty about just which Justices should be cast as the Tin Man, Scarecrow and Cowardly Lion, the title of this post is meant in part to reflect how I am feeling overwhelmed trying to process the results and votes in three big federal criminal justice cases over the last three workdays, namely Gundy v. US, 17-6086 (S. Ct. June 20, 2019) (available here; discussed here), Rehaif v. US, No. 17-9560 (S. Ct. June 21, 2019) (available here; discussed here), and US v. Davis, No. 18-431 (S. Ct. June 24, 2019) (available here; discussed here). 

Beyond being overwhelmed by 150+ pages of dense SCOTUS text, I am also struck by my sense that so many of the Justices in these cases have had their opinions shaped by the likely or feared results of a ruling one way or another.  To this end, this passage from the majority opinion penned by Justice Gorsuch today in Davis caught my eye:

In the end, the dissent is forced to argue that holding §924(c)(3)(B) unconstitutional would invite “bad” social policy consequences.  Post, at 34.  In fact, the dissent’s legal analysis only comes sandwiched between a lengthy paean to laws that impose severe punishments for gun crimes and a rogue’s gallery of offenses that may now be punished somewhat less severely.  See post, at 1–2, 30–34.  The dissent acknowledges that “the consequences cannot change our understanding of the law.”  Post, at 34.  But what’s the point of all this talk of “bad” consequences if not to suggest that judges should be tempted into reading the law to satisfy their policy goals?

I am not inclined to use this post to rail against results-oriented jurisprudence, in part because I think all jurisprudence is results-oriented in one sense or another.  But with Gundy, Rehaif and Davis all so new and raw, and with surely lots of fall-out and follow-up to flow from these decisions, I could not resist a post spotlighting a little (Emerald City) legal realism.  And with Haymond still in the works, perhaps even the Sixth Amendment Wizard will be revealed before too long.

P.S.:  If anyone is eager to cast certain Justices as the Tin Man, Scarecrow and Cowardly Lion (or the Wicked Witch or Glinda or the Wizard or Auntie Em or even Toto), feel free to have at it in the comments.

UPDATE: Here are links to the SCOTUSblog analyses of these opinions:

On Gundy by Mila Sohoni, "Court refuses to resurrect nondelegation doctrine"

On Rehaif by Evan Lee, "Felons-in-possession must know they are felons"

On Davis by Leah Litman, "Vagueness doctrine as a shield for criminal defendants"

Accounting Justice Gorsuch's votes (and opinions) so far this SCOTUS Term in big criminal cases

I am going to need a few hours (and days and weeks) to fully process the latest huge vagueness ruling from SCOTUS today in US v. Davis (basics here).  But Justice Gorsuch's latest decision to serve as the fifth vote (and to write the opinion for the Court) in this major ruling for a federal criminal defendant has me now eager to do a (too) quick accounting of his work in this space this Term.  Though we still await two more notable criminal rulings this Term — US v. Haymond and Mitchell v. Wisconsin — I do not think it is too early to start reviewing the Term that was and Justice Gorsuch's particularly interesting role in the criminal docket.

I am going to focus here on major contested criminal justice ruling from OT 2018 (going in the order argued), and I welcome feedback on this accounting as I start taking stock:

US v. Gundy, 5-3 ruling for feds, Justice Gorsuch in dissent for federal defendant

Madison v. Alabama, 5-3 ruling for state capital defendant, Justice Gorsuch in dissent for state

Stokeling v. US, 5-4 ruling for feds, Justice Gorsuch in majority

Garza v. Idaho, 6-3 ruling for state defendant, Justice Gorsuch in dissent for state

Bucklew v. Precythe, 5-4  ruling for state in capital case, Justice Gorsuch authors majority

Gamble v. US, 7-2 ruling for feds, Justice Gorsuch in dissent for federal defendant

Mont v. US, 5-4 ruling for feds, Justice Gorsuch in dissent for federal defendant

Flowers v. Mississippi, 7-2 ruling for state capital defendant, Justice Gorsuch in dissent for state

Davis v. US, 5-4  ruling for federal defendant, Justice Gorsuch authors majority

Rehaif v. US, 7-2 ruling for federal defendant, Justice Gorsuch in majority

Assembling this abridged list of notable criminal justice rulings this Term confirms my instinct that state capital defendants ought not be looking to get a vote from Justice Gorsuch (with the Chief Justice and Justice Kavanaugh seeming the most likely to swing), while federal defendants ought to be reasonably hopeful to get his vote in contested cases.  Though I hope and expect I the fine folks at SCOTUSblog and others can and will be do a more rigorous accounting on these matters at some point, I am eager to prime on-going conversations about how the current Court continues to be so very interesting and somewhat unpredictable on so many criminal cases.

SCOTUS, ruling 5-4, finds part of 924(c) unconstitutionally vague in Davis

This morning the Supreme Court in US v. Davis, No. 18-431 (S. Ct. June 24, 2019) (available here), has issues another huge ruling finding an important federal criminal statute unconstitutionally vague. The majority opinion in Davis is authored by Justice Gorsuch and starts this way:

In our constitutional order, a vague law is no law at all.  Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them.  Vague laws transgress both of those constitutional requirements.  They hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct.  When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.

Today we apply these principles to 18 U. S. C. §924(c).  That statute threatens long prison sentences for anyone who uses a firearm in connection with certain other federal crimes. But which other federal crimes?  The statute’s residual clause points to those felonies “that by [their] nature, involv[e] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” § 924(c)(3)(B).  Even the government admits that this language, read in the way nearly everyone (including the government) has long understood it, provides no reliable way to determine which offenses qualify as crimes of violence and thus is unconstitutionally vague.  So today the government attempts a new and alternative reading designed to save the residual clause. But this reading, it turns out, cannot be squared with the statute’s text, context, and history.  Were we to adopt it, we would be effectively stepping outside our role as judges and writing a new law rather than applying the one Congress adopted.

Justice Kavanaugh authors a very lengthy dissent for himself and three other Justices that starts this way:

Crime and firearms form a dangerous mix. From the 1960s through the 1980s, violent gun crime was rampant in America.  The wave of violence destroyed lives and devastated communities, particularly in America’s cities.  Between 1963 and 1968, annual murders with firearms rose by a staggering 87 percent, and annual aggravated assaults with firearms increased by more than 230 percent.

Faced with an onslaught of violent gun crime and its debilitating effects, the American people demanded action. In 1968, Congress passed and President Lyndon Johnson signed the Gun Control Act.  That law made it a separate federal crime to use or carry a firearm during a federal felony. Despite that and other efforts, violent crime with firearms continued at extraordinarily dangerous levels.  In 1984 and again in 1986, in legislation signed by President Reagan, Congress reenacted that provision of the 1968 Act, with amendments.  The law now prohibits, among other things, using or carrying a firearm during and in relation to a federal “crime of violence.” 18 U. S. C. §924(c)(1)(A).  The law mandates substantial prison time for violators.

Over the last 33 years, tens of thousands of §924(c) cases have been prosecuted in the federal courts. Meanwhile, violent crime with firearms has decreased significantly.  Over the last 25 years, the annual rate of murders with firearms has dropped by about 50 percent, and the annual rate of nonfatal violent crimes (robberies, aggravated assaults, and sex crimes) with firearms has decreased by about 75 percent.  Violent crime in general (committed with or without a firearm) has also declined. During that same time period, both the annual rate of overall violent crime and the annual rate of murders have dropped by almost 50 percent.  Although the level of violent crime in America is still very high, especially in certain cities, Americans under the age of 40 probably cannot fully appreciate how much safer most American cities and towns are now than they were in the 1960s, 1970s, and 1980s.  Many factors have contributed to the decline of violent crime in America. But one cannot dismiss the effects of state and federal laws that impose steep punishments on those who commit violent crimes with firearms.

Yet today, after 33 years and tens of thousands of federal prosecutions, the Court suddenly finds a key provision of §924(c) to be unconstitutional because it is supposedly too vague. That is a surprising conclusion for the Court to reach about a federal law that has been applied so often for so long with so little problem.  The Court’s decision today will make it harder to prosecute violent gun crimes in the future.  The Court’s decision also will likely mean that thousands of inmates who committed violent gun crimes will be released far earlier than Congress specified when enacting §924(c). The inmates who will be released early are not nonviolent offenders.  They are not drug offenders.  They are offenders who committed violent crimes with firearms, often brutally violent crimes.

Supreme Court grants cert on AEPDA rules limiting habeas petitions

The Supreme Court this morning via this order list granted cert on a number of cases, one of which, Banister v. Davis, 18-6943, concerns federal habeas procedures.  Here is how the grant appears on the order list:

The motion of petitioner for leave to proceed in forma pauperis is granted, and the petition for a writ of certiorari is granted limited to the following question: Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby, 545 U.S. 524 (2005).

Were lawyers busy all weekend drafting "Rehaif motions" seeking relief for "tens of thousands of prisoners" potentially impacted by the SCOTUS decision?

The question in the title of this post is prompted by the dire claims appearing in Justice Alito's dissent in Friday's Supreme Court ruling in Rehaif v. US, No. 17-9560 (S. Ct. June 21, 2019) (available here).  At the start of his dissent, Justice Alito frets that the Court's ruling in Rehaif "will create a mountain of problems with respect to the thousands of prisoners currently serving terms for §922(g) convictions" and that "[a]pplications for relief by federal prisoners sentenced under §922(g) will swamp the lower courts."  At the end of his dissent, he returns to this lament (with cites removed):

Although the majority presents its decision as modest, its practical effects will be far reaching and cannot be ignored. Tens of thousands of prisoners are currently serving sentences for violating 18 U.S.C. § 922(g).  It is true that many pleaded guilty, and for most direct review is over.  Nevertheless, every one of those prisoners will be able to seek relief by one route or another.  Those for whom direct review has not ended will likely be entitled to a new trial.  Others may move to have their convictions vacated under 28 U.S.C. § 2255, and those within the statute of limitations will be entitled to relief if they can show that they are actually innocent of violating §922(g), which will be the case if they did not know that they fell into one of the categories of persons to whom the offense applies.  If a prisoner asserts that he lacked that knowledge and therefore was actually innocent, the district courts, in a great many cases, may be required to hold a hearing, order that the prisoner be brought to court from a distant place of confinement, and make a credibility determination as to the prisoner’s subjective mental state at the time of the crime, which may have occurred years in the past.  This will create a substantial burden on lower courts, who are once again left to clean up the mess the Court leaves in its wake as it moves on to the next statute in need of “fixing.”...

The majority today opens the gates to a flood of litigation that is sure to burden the lower courts with claims for relief in a host of cases where there is no basis for doubting the defendant’s knowledge.

Though I am not sure that the litigation following the Court's decision in Rehaif will amount to a flood, I am sure that it will be interesting to see just how this ruling echoes through the lower courts in the weeks and months ahead.

"Judges should be able to take a 'second look' at prison sentencing"

The title of this post is the title of this recent USA Today op-ed authored by Kevin Sharp and Kevin Ring. Based on the title alone, regular readers should know I am keen on the ideas in this piece, and here are excerpts:

It’s time we took bold steps that would give most prisoners an incentive to work hard to change their lives and successfully reintegrate into society, making us all safer when they do. It’s time for Congress and state legislatures to adopt broad “second look” sentencing laws.

We have both worked with people who have taken extraordinary steps to rehabilitate themselves in prison. One of us is a former federal judge who resigned, in large part, because he could no longer stand to impose the excessive and unjust prison terms Congress mandates in so many cases. The other is a former prisoner and the leader of a national organization that works with thousands of families directly impacted by harsh federal and state sentencing laws.

We know that implementing second-look laws, which would allow judges to review every offender’s sentence after a certain period — say 10 or 15 years — could reform our criminal justice system in a way that would recognize the capacity for rehabilitation, ensure public safety and reduce excessive sentences.

Second-look laws would give any individual hoping for a second chance more than enough time to show that he or she has earned it. Knowing that an opportunity for resentencing exists would very likely improve morale and behavior inside prisons, benefiting prisoners and corrections officers alike.

There is nothing more frightening than living in an environment where there is no hope. Moreover, there is ample evidence to suggest that lengthier sentences do not make us safer, yet our country continues to impose some of the harshest prison terms in the Western world....

Although presidents and many governors have the authority to shorten excessive sentences and reward extraordinary rehabilitation, they rarely use it. Over the past 40 years, executives have been loath to take any risks with their political futures. We need to move beyond short-term fear and follow what we know to be true about human nature and people’s capacity to change. Enacting second-look laws would allow us to reduce the unnecessary harm we are causing to some of our fellow citizens and improve public safety for all of us.

Under second-look laws, public safety would be preserved by ensuring that prosecutors, probation officers and pretrial services, along with prison officials, are involved in any resentencing in order to make the court aware of a given individual’s rehabilitation, or lack thereof. It’s more likely that adopting second-look laws would make our communities safer and decrease the strain on our prison system by preventing us from wasting our limited anti-crime resources warehousing people who pose little or no safety risk.

If we want to safely reduce our nation’s prison population, we need to stop throwing people away and start recognizing the human capacity for rehabilitation and redemption. We need to commit to second chances, and we can start by promising to give everyone a second look.

A few of many, many prior related posts and related writings:

• Good day for thinking hard about sentencing second looks and second chances 
• "For Justice and Decarceration, Enact Second-Look Sentencing" 
• Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court? 
• Federal judge pens extraordinary and compelling order requesting US Attorney to vacate old stacked 924(c) conviction in extraordinary and compelling case 
• "Re-Balancing Fitness, Fairness, and Finality for Sentences"
• "Reflecting on Parole's Abolition in the Federal Sentencing System"
• "Encouraging (and Even Requiring) Prosecutors to be Second-Look Sentencers"
• FSR issue on "second look" sentencing reforms now on-line 
• Strong arguments for second-look sentencing reforms from SCOTUS concurrences
• "Eight Keys to Mercy: How to shorten excessive prison sentences"