Sentencing Law and Policy

A few (too few) recent COVID-influenced grants of sentence reductions using § 3582(c)(1)(A)

As regular readers know, in many prior posts since enactment of the FIRST STEP Act, I have made much of the provision that allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I have long considered this provision a big deal because I have long thought that, if applied appropriately and robustly, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.

A few weeks ago before the COVID-19 outbreak became the most urgent of stories, I was starting to notice on Westlaw a growing number of rulings granting sentencing reductions using 3582(c)(1)(A).  I listed some of these pre-COVID positive cases in this March 23 post.  While writing that prior post, I was thinking it might be only a matter of days before a lot more courts granted a lot more sentence reductions using § 3582(c)(1)(A) because of the "extraordinary and compelling" public health crisis created by COVID-19.  Somewhat disappointingly, I have only so far been able to locate a handful of recent COVID-influenced grants of sentence reductions using § 3582(c)(1)(A):

United States v. Campagna, No. 16 Cr. 78-01 (LGS), 2020 WL 1489829 (SDNY Mar. 27, 2020) ("Defendant’s compromised immune system, taken in concert with the COVID-19 public health crisis, constitutes an extraordinary and compelling reason to modify to Defendant’s sentence on the grounds that he is suffering from a serious medical condition that substantially diminishes his ability to provide self-care within the environment of the RCC.")

United States v. Powell, No. No. 1:94-cr-00316 (ESH) (DDC Mar. 28, 2020) (available here) ("Defendant is 55-years-old, suffers from several respiratory problems (including sleep apnea and asthma), and has only 3 months remaining on his 262-month sentence. The government does not oppose the relief sought. In addition, the Court finds that requiring defendant to first seek relief through the Bureau of Prisons’ administrative process would be futile because defendant has an open misdemeanor case in Superior Court which the Bureau of Prisons has advised defense counsel renders defendant ineligible for home confinement.")

United States v. Muniz, No. 4:09-CR-0199-1, 2020 WL 1540325 (SD Tex. Mar. 30, 2020) ("Because Defendant is at high-risk for severe illness from COVID-19 and because inmates in detention facilities are particularly vulnerable to infection, the Court finds that Defendant has demonstrated an extraordinary and compelling reason for compassionate release.")

United States v. Gonzales, No. 2:18-CR-0232-TOR-15, 2020 WL 1536155 (Ed Wash. Mar. 31, 2020) ("Defendant is the most susceptible to the devastating effects of COVID-19. She is in the most susceptible age category (over 60 years of age) and her COPD and emphysema make her particularly vulnerable.... The Court was aware of Defendant’s underlying medical condition and took that into consideration at the time of sentencing. In normal times, Defendant’s condition would be manageable. These are not normal times, however.")

I am fairly confident that this list does not represent all, and I hope it does not even capture most, of the sentence reductions granted by federal district courts in the past week or so.  Readers are encouraged to use the comments or send me emails to supplement this list as new ruling are handed down or become available.

Prior recent related posts:

• Notable recent (pre-COVID) grants of sentence reductions from coast to coast using § 3582(c)(1)(A) ... as FAMM urges thousand more filings in response to coronavirus
• Documenting early federal court COVID jurisprudence in response to various release requests from federal defendants and inmates 

UPDATE: I am pleased to report that I just received from a helpful reader a copy of a new 24-page opinion handed down just today in United States v. Rodriguez, No. 2:03-cr-00271-AB-1 (ED Pa. Apr. 1, 2020) (available for download below). The start of this new opinion highlights why it is a must-read for anyone working on 3582(c)(1)(A) motions these days:

We are in the midst of an unprecedented pandemic. COVID-19 has paralyzed the entire world. The disease has spread exponentially, shutting down schools, jobs, professional sports seasons, and life as we know it. It may kill 200,000 Americans and infect millions more. At this point, there is no approved cure, treatment, or vaccine to prevent it. People with pre- existing medical conditions — like petitioner Jeremy Rodriguez — face a particularly high risk of dying or suffering severe health effects should they contract the disease.

Mr. Rodriguez is an inmate at the federal detention center in Elkton, Ohio.  He is in year seventeen of a twenty-year, mandatory-minimum sentence for drug distribution and unlawful firearm possession, and is one year away from becoming eligible for home confinement. Mr. Rodriguez has diabetes, high blood pressure, and liver abnormalities. He has shown significant rehabilitation in prison, earning his GED and bettering himself with numerous classes. He moves for a reduction of his prison sentence and immediate release under the “compassionate release” statute, 18 U.S.C. § 3582(c)(1)(A).  He argues that “extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. §3582(c)(1)(A)(i).

For Mr. Rodriguez, nothing could be more extraordinary and compelling than this pandemic. Early research shows that diabetes patients, like Mr. Rodriguez, have mortality rates that are more than twice as high as overall mortality rates.  One recent report revealed: “Among 784 patients with diabetes, half were hospitalized, including 148 (18.8%) in intensive care.  That compares with 2.2% of those with no underlying conditions needing ICU treatment.”

These statistics — which focus on the non-prison population — become even more concerning when considered in the prison context. Prisons are tinderboxes for infectious disease. The question whether the government can protect inmates from COVID-19 is being answered every day, as outbreaks appear in new facilities. Two inmates have already tested positive for COVID-19 in the federal detention center in Elkton — the place of Rodriguez’s incarceration.  After examining the law, holding oral argument, and evaluating all the evidence that has been presented, I reach the inescapable conclusion that Mr. Rodriguez must be granted “compassionate release.”

Download Rodriguez Memorandum

ANOTHER UPDATE: I am pleased to report that I just received from another helpful reader another new opinion handed down just today in United States v. Perez, No. 17 Cr. 513-3 (AT) (SDNY Apr. 1, 2020) (available for download below).  This opinion includes an important discussion of the need to waiver the exhaustion/30-day requirement for a motion for sentence reduction. Here are excerpts:

On March 26, 2020, Perez submitted to the BOP his application for a sentence modification. ECF No. 96 at 4. To date, the BOP has not acted on that request. The Court holds, however, that Perez’s exhaustion of the administrative process can be waived in light of the extraordinary threat posed—in his unique circumstances—by the COVID-19 pandemic. And the Court agrees with the parties that this threat also constitutes an extraordinary and compelling reason to reduce Perez’s sentence to time served. Accordingly, Perez’s motion is GRANTED....

Here, delaying release amounts to denying relief altogether. Perez has less than three weeks remaining on his sentence, and pursuing the administrative process would be a futile endeavor; he is unlikely to receive a final decision from the BOP, and certainly will not see 30 days lapse before his release date. Perez asks that his sentence be modified so that he can be released now, and not on April 17, 2020, because remaining incarcerated for even a few weeks increases the risk that he will contract COVID-19. He has had two surgeries while incarcerated, and continues to suffer severe side effects such as ongoing pain and persistent vision problems. ECF No. 96 at 4. As the Government concedes, Perez faces a “heightened risk of serious illness or death from COVID-19 due to his preexisting medical issues.” Gov’t Letter at 3. Requiring exhaustion, therefore, would be directly contrary to the purpose of identifying and releasing individuals whose circumstances are “extraordinary and compelling.”

Download Perez-Order-Compassionate-Release

Justice Sotomayor gets in (last) shot complaining about the Supreme Court's unwillingness to take up challenges to old (vague?) guidelines

In this post a few months ago I flagged an article noting that in "at least 27 cases, Justices Sonia Sotomayor and Ruth Bader Ginsburg have gone out of their way to dissent from their colleagues’ rejection of petitions by 'career offenders'" arguing that the Johnson vagueness ruling made their (pre-Booker) guideline sentences unconstitutional. (The Justices in Beckles decided that post-Booker sentences were not constitutionally problematic because the guidelines were advisory.)

In this morning's SCOTUS order list, these two dissent in another such case, though it seems this may be the last time they will:

19-7755 PATRICK, SCOTT M. V. UNITED STATES

The petition for a writ of certiorari is denied. Justice Sotomayor, with whom Justice Ginsburg joins, dissenting from the denial of certiorari: I dissent for the reasons set out in Brown v. United States, 586 U. S. ___ (2018) (Sotomayor, J., dissenting).  Recognizing that the Court has repeatedly declined to grant certiorari on this important issue — whether the right recognized in Johnson v. United States, 576 U. S. 591 (2015), applies to defendants sentenced under the mandatory Sentencing Guidelines — I will cease noting my dissent in future petitions presenting the question.  I hope, however, that the Court will at some point reconsider its reluctance to answer it.

Prior related posts:

• Noticing that two Justices keep noticing challenges to old (vague?) guidelines

Broad coalition urges Prez Trump to commute the federal sentences in response to coronavirus crisis

A whole bunch of public policy and civil rights groups have just sent this short letter urging Prez Trump to utilize his clemency power to commute the federal sentences of those "who could benefit from compassionate release, and other populations that are exceptionally vulnerable to coronavirus."  The letter details the COVID-19 emergency emerging in prisons and jails and closes with this ask:

We call upon you to commute the federal sentences of individuals who could benefit from compassionate release, including those who: 

• Are older and elderly; 
• Have a terminal medical condition; 
• Have a debilitated medical condition; 
• Suffer from a chronic medical condition; or 
• Have suffered a death of a family member who is a primary caregiver to a child of the person incarcerated.

In addition to commuting the federal sentences of individuals who could benefit from compassionate release, we call upon you to use your clemency power to release those incarcerated at the federal level who are elderly and/or particularly vulnerable to serious illness or death from COVID-19 due to underlying health conditions as identified by the Centers for Disease Control and Prevention, including: 

• Blood disorders; 
• Chronic kidney disease; 
• Chronic liver disease; 
• Compromised immune system (immunosuppression); 
• Current or recent pregnancy; 
• Endocrine disorders; 
• Metabolic disorders; 
• Heart disease; 
• Lung disease; 
• Neurological and neurologic and neurodevelopment conditions; and 
• Hypertension.

As we work to combat the spread of the coronavirus pandemic, it is essential that we not forget about the millions of Americans currently incarcerated and working in jails, prisons and detention centers, and that we take action to protect those who are the most vulnerable to COVID-19. Again, we ask you to commute the sentences for those populations at the federal level most vulnerable to coronavirus.

UPDATE: It is worth noting here that this call to Prez Trump to use his clemency powers to move people out of federal prisons could and should also be directed, on similar terms, to Governors across the nation.  Helpfully, I just got word from Margy Love that the Collateral Consequences Resource Center has a new resource on state clemency posers. This CCRC post provides the details and other helpful links:

At this time of pandemic, we have been following the discussions of how jail, prison, and immigration detention conditions are highly concerning, including the very useful collection of links provided by Professor Doug Berman, the demands published by advocacy organizations, and the collection of policy responses by the Prison Policy Institute.  We agree that every available legal mechanism must be enlisted to secure the release of prisoners and detainees who pose little or no threat to public safety, and whose health and safety are themselves severely threatened by their enforced captivity.  This includes the great constitutional powers given to governors and pardon boards.  We therefore commend our newly revised pardon resources to advocates and policy makers to support their advocacy and action.

While our pardon-related research focuses primarily on how the power is used to restore rights and status to those who are no longer in prison, much of our information about how the pardon process is structured and operates is relevant to how the power might be used (or is already being used) to commute prison sentences during the pandemic.  Our revised pardon resources are part of a major revision of the CCRC Restoration of Rights Project, not only to make sure its information is current in light of the many recent changes in the law, but also reorganizing and revising its resources for clarity and easier access.  In the process, we have updated and revamped our state-by-state material on how the pardon process operates in each jurisdiction, noting that the process has become more regular and productive in a few states in the past several years.

Our 50-state pardon comparison is organized into four sections:

• Section 1 provides a chart comparing pardon policy and practice across jurisdictions.
• Section 2 lists jurisdictions by frequency and regularity of their pardon grants.
• Section 3 sorts jurisdictions by how the administration of the power is structured.
• Section 4 provides state-by-state summaries of pardon policy and practice, with links to more detailed analysis and legal citations.

Notable recent (pre-COVID) grants of sentence reductions from coast to coast using § 3582(c)(1)(A) ... as FAMM urges thousand more filings in response to coronavirus

As regular readers know, in lots of prior posts since enactment of the FIRST STEP Act, I have made much of a key provision that Act which allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I have long considered this provision a big deal because I have long thought that, if applied appropriately and robustly, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.

A few weeks ago before the COVID-19 outbreak became the most urgent of stories, I was starting to notice on Westlaw a growing number of rulings granting sentencing reductions using 3582(c)(1)(A).  I was drafting a detailed post on this topic when COVID started taking up all of my attention, but it now seems wise to just list some of the positive cases from the last few weeks:

United States v. O’Bryan, No. 96-10076-03-JTM, 2020 WL 869475 (D. Kan. Feb 21, 2020)

United States v. Mondaca, No. 89-CR-0655 DMS, 2020 WL 1029024 (S.D. Cal. March 3, 2020)

United States v. Young, No. 2:00-cr-00002-1, 2020 WL 1047815 (M.D. Tenn. March 4, 2020)

United States v. Davis, No. PJM 00-424-2, 2020 WL 1083158 (D. Md. March 5, 2020)

United States v. Perez, No. No. 88-10094-1-JTM, 2020 WL 1180719 (D. Kansas March 11, 2020)

United States v. Redd, No. 1:97-cr-00006-AJT 2020 WL 1248493 (E.D. Va. Mar. 16, 2020)

I felt compelled to post this list tonight because of notable news from FAMM detailed in this press release titled "FAMM urges most vulnerable people in federal prison to immediately apply for compassionate release":

 In response to the worldwide COVID-19 pandemic, FAMM sent a letter to nearly 40,000 federal prisoners today encouraging all federal prisoners who are most vulnerable to immediately apply for early release.  FAMM is working with the National Association of Criminal Defense Lawyers, and Washington Lawyers’ Committee for Civil Rights and Urban Affairs to assist those who apply.

“There are thousands of sick and elderly people in federal prison whose continued incarceration serves no public safety purpose.  This same population is the most vulnerable to coronavirus,” said FAMM President Kevin Ring.  “They were not sentenced to death, and they should be released immediately.”

Ring noted that people in prison cannot take the same precautions that health experts have recommended to avoid contracting the virus.  People in federal prison can’t practice social distancing.  Moreover, the prisons are not clean and many do not have adequate medical care.

The Centers for Disease Control consider the most vulnerable to include people over 65 years old, and people with a condition that affects their lungs, heart, kidney, immune system, or who have another serious chronic medical condition.  There are more than 10,000 people in federal prison who are over 60 years old.  Many are in poor health.

FAMM worked with Congress to expand the compassionate release program in the First Step Act.  One of the most important reforms gave people in prison the right to go to federal court and ask a judge to grant compassionate release if the Bureau of Prisons either denies a request or does not answer a request within 30 days.

“We are urging at-risk people to make the request to their wardens immediately.  That starts the clock.  If Congress and the president don’t act before then, the courts will have the chance to do the right thing,” said Ring.

With lives at stake, when will we start to see mass clemency and compassionate release?

I have been pleased to see some considerable action at the local level to try to reduce the jail population amidst the coronavirus crisis (most notably now via state Supreme Court mandate in New Jersey).  But, because everyone should realize that it is essential for the health of prison staff and their families, as well as for prisoners, for there to be smart efforts to reduce prison populations amidst this global pandemic, I am troubled that we are yet to see any mass clemency and compassionate release activity at either the federal or state level.  Because our nation's criminal justice system is defined by mass incarceration, the current public health crisis demands mass clemency and compassionate release.

Of course, if releasing elderly and unhealthy at-risk prisoners posed a major public safety concern, I could understand slow and deliberative action on these fronts.  But, a few years ago the Brennan Center examined our prison populations and reached the conclusion in this big report that "nearly 40 percent of the U.S. prison population — 576,000 people — are behind bars with no compelling public safety reason."  I am urging "big-time" clemency and compassionate release activity at every level of government because that's what it will take to even get a small percentage of this population home in short order so that they do not continue to contribute to the public safety hazards created in prisons where social distancing is impossible.

Helpfully, I am not the only one urging mass clemency and compassionate release activity, and here are a couple recent op-eds focused on specific (hard-hit) states:

From Jose Saldana, "Clemency is needed for incarcerated New Yorkers vulnerable to coronavirus"

From Nancy Gertner and John Reinstein, "Compassionate release now for prisoners vulnerable to the coronavirus"

For those new to these issues, this lengthy new Quartz piece, "Coronavirus risk looms large for America’s elderly and sick prison population," provides a terrific short overview of some of these issues with an emphasis on our graying prison population and the costs and challenges elderly offenders present even without the COVID-19 disaster.

Wonderfully, NYU's Center on the Administration of Criminal Law has created a great new clemency resource here to highlight that every jurisdiction has the means to address these matters using historic and existing clemency powers.  Here is the NYU discussion of its resource and a link:

Because of the crowded nature of correctional facilities and the limited resources available there, people incarcerated in jails and prisons are exceptionally vulnerable to the spread of COVID-19. Many facilities house significant elderly populations as well as other people with underlying conditions that make them more vulnerable to serious complications and/or death from the virus. 

One way to mitigate the mounting crisis in correctional facilities is by using executive clemency. Many state constitutions vest the governor with broad authority to grant relief without the need for legislation or other actors.  While governors can grant pardons or commutations that would have a permanent effect, they can also choose to issue reprieves, which are temporary delays in the imposition or resumption of a sentence.  By using reprieves to temporarily release people from prison, we may spare them from potentially life-threatening illness without affecting the length of their sentence.  It allows the system to press pause on a sentence until the danger passes. 

The Center has assembled a working document that catalogues the legal authority to grant reprieves in all fifty states.  We encourage anybody with state-specific knowledge to provide feedback, suggestions, or additions regarding the process of granting reprieves in a given jurisdiction by emailing us at prosecutioncenter@nyu.edu. 

Prior coronavirus posts highlighting need for urgent action on imprisonment amidst epidemic:

• Connecting realities of incarceration to the outbreak of coronavirus (March 3)
• Rounding up more coverage of the frightening intersection of incarceration and the coronavirus (March 12)
• When and how will federal authorities start systematically modifying federal sentencing and prison realities in response to COVID-19 outbreak? (March 16)
• Are federal prosecutors getting any guidance from Main Justice about federal sentencing policy and practice amidst coronoavirus pandemic? (March 18)
• "ACLU Demands the Release from Prisons and Jails of Communities Vulnerable to COVID-19" (March 18)
• Growing reports of growing numbers of prisoners and staffers testing positive for COVID-19 (March 19)
• Who in Trump Administration is involved in "actually looking at" using executive action to release "totally nonviolent prisoners"? (March 23)

UPDATE: After completing this post, I just happened to come across these two additional recent op-eds on this front:

From John Mills, "Release prisoners to address the COVID-19 crisis"

From Clem Murray, "To flatten the curve, Philadelphia should release all non-violent prisoners now"

Notable SCOTUS summary reversal on plain error review and brief statement on successive federal 2255 review

This mornings order list from the US Supreme Court has a brief summary reversal and an even briefer statement respecting the denial of certiorari.  The per curiam decision summary in Davis v. United States, No. 19–5421 (S. Ct. March 23, 2020) (available here), is a swift smack-down of the Fifth Circuit that substantively concludes this way:

In this Court, Davis challenges the Fifth Circuit’s outlier practice of refusing to review certain unpreserved factual arguments for plain error. We agree with Davis, and we vacate the judgment of the Fifth Circuit.

Rule 52(b) states in full: “A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”  The text of Rule 52(b) does not immunize factual errors from plain-error review.  Our cases likewise do not purport to shield any category of errors from plain-error review.  See generally Rosales-Mireles v. United States, 585 U. S. ___ (2018); United States v. Olano, 507 U. S. 725 (1993).  Put simply, there is no legal basis for the Fifth Circuit’s practice of declining to review certain unpreserved factual arguments for plain error.

In Avery v. United States, No. 19–633, Justice Kavanaugh issued this statement respecting the denial of certiorari, which wraps this way:

The text of that second-or-successive statute covers only applications filed by state prisoners under § 2254.  Yet six Courts of Appeals have interpreted the statute to cover applications filed by state prisoners under §2254 and by federal prisoners under § 2255, even though the text of the law refers only to § 2254....

After Avery’s case was decided, the Sixth Circuit recently rejected the other Circuits’ interpretation of the second-or-successive statute and held that the statute covers only applications filed by state prisoners under § 2254. Williams v. United States, 927 F. 3d 427 (2019).

Importantly, the United States now agrees with the Sixth Circuit that “Section 2244(b)(1) does not apply to Section 2255 motions” and that the contrary view is “inconsistent with the text of Section 2244.”  Brief in Opposition 10, 13.  In other words, the Government now disagrees with the rulings of the six Courts of Appeals that had previously decided the issue in the Government’s favor.

In a future case, I would grant certiorari to resolve the circuit split on this question of federal law.

Texas Court of Appeals stays a second execution for 60 days due to COVID-19

As reported in this local piece, headlined "Texas Court of Criminal Appeals stops another scheduled execution because of the coronavirus," it seems that the coronavirus outbreak has now clearly created a de facto moratorium on executions in at least one significant state.  Here are the basic details:

A Texas court has stopped a second execution because of the new coronavirus that has swept through the state and world.

The Texas Court of Criminal Appeals issued a stay Thursday for next Wednesday’s scheduled execution of Tracy Beatty, a 59-year-old man convicted more than 15 years ago of killing his mother. Earlier this week, the same court halted the execution planned Wednesday for John Hummel for the same reason.

“We have determined that the execution should be stayed at the present time in light of the current health crisis and the enormous resources needed to address that emergency,” the court said in the order Thursday. The court’s stay lasts for 60 days, after which a new execution date can be set.

Beatty’s attorney filed a motion to halt his upcoming execution shortly after the court stayed Hummel’s execution Monday, citing the “unprecedented proportions” of the pandemic....

As in Hummel’s case, prosecutors were opposed to stopping the execution, however. Smith County District Attorney Jacob Putman said in a filing that COVID-19, the disease caused by the coronavirus discovered in December 2019, has not been shown to impact the state’s ability to carry out an execution. “There has been no evidence that the ‘enormous resources needed to address that emergency’ will also include the handful of TDCJ personnel who will carry out Beatty's execution,” he wrote.

Seven other executions are scheduled in Texas through September, with two set in April.

Given the CDC has urged all of us to avoid gatherings of more than 10 people for the next eight weeks, I would expect April and even May execution dats to also get postponed in this way. And if we are not getting back to normal by May, it will be interesting to see if still further executions get delayed due to the on-going pandemic.

Prior related post:

• "Appeals Court Delays Texas Execution Due To Coronavirus Outbreak" 

When and how will federal authorities start systematically modifying federal sentencing and prison realities in response to COVID-19 outbreak?

I have previously already blogged here (March 3) and here (March 12) and here (March 13) on the potential impact of the coronavirus on prisons and jails, but it seems the world changes a few dozen times each day when it comes to this global pandemic.  And now it is obvious that sentencings and prisons are already being impacted dramatically, with this Crime Report piece providing just some of the details.  The piece is headlined "Corrections Authorities Eye Inmate Release, Halts in Visits, to Prevent Virus Spread," and here are excerpts:

Authorities have begun focusing on America’s overcrowded prisons and jails — environments where “social distancing” can be problematic — as critical danger points for the spread of Covid-19.  Actual infections and fear of the coronavirus have begun to grind the scales of justice to a halt in pockets of the U.S. under states of emergency as judges and lawyers struggle to balance the constitutional rights of defendants against the concerns that the public institutions could unwittingly become contamination sites, CNN reports.

“The whole system is coming to a halt,” said New York City criminal defense lawyer Gerald Lefcourt. “I’m sure everybody is wait-and-see at the moment,” he added, saying he wouldn’t be surprised if prosecutors and defense lawyers seek to resolve cases outside of a trial, either through plea bargains or dropped cases....

In Ohio, dozens of inmates were released from jail sooner than expected to help reduce the population inside the Cuyahoga County jail, as a way to minimize potential virus outbreaks inside jails. The Ohio county judges held a rare court session to hear cases involving low-level, non-violent offenders on Saturday, according to Channel 11 News. Some 38 inmates were released from the Cuyahoga County jail after they appeared in court.

In Michigan’s Kent County, bond and sentence modifications are being discussed to allow some inmates to be released. “We are taking precautions, like everyone else, and making arrangements to deal with what is presented to us,” Kent County Sheriff Michelle LaJoye-Young told ABC 13.

And in Minnesota, the state’s public defender recommened that nonviolent offenders should be released from jail because of the threat of coronavirus. “I am no doctor, but I think it’s better for them to be on quarantine at home,” said Bill Ward told the Pioneer Press on Sunday. “The request is to treat them humanely.” Two jails in southern Minnesota have each had one inmate with a confirmed case of the disease, Ward said. Diseases from the common cold to the flu spread more quickly in prisons — so coronavirus poses a greater risk for inmates.

Efforts to limit the spread of disease in the nation’s corrections systems also included suspending or curtailing visits to prisoners.

This new New York Times commentary effectively details why many working in the criminal justice arena have been thinking about this issue for some time already.  The extended piece should be read in full, and its full headline highlights the themes: "An Epicenter of the Pandemic Will Be Jails and Prisons, if Inaction Continues: The conditions inside, which are inhumane, are now a threat to any American with a jail in their county — that’s everyone."  Here are passages:

In America’s jails and prisons, people share bathrooms, laundry and eating areas. The toilets in their cells rarely have lids. The toilet tank doubles as the sink for hand washing, tooth brushing and other hygiene. People bunked in the same cell — often as many as four — share these toilets and sinks. Meanwhile, hand sanitizer is not allowed in most prisons because of its alcohol content. Air circulation is nearly always poor. Windows rarely open; soap may only be available if you can pay for it from the commissary.

These deficiencies, inhumane in and of themselves, now represent a threat to anyone with a jail in their community — and there is a jail in every county in the United States. According to health experts, it is not a matter of if, but when, this virus breaks out in jails and prisons. People are constantly churning through jail and prison facilities, being ushered to court hearings, and then being released to their communities — nearly 11 million every year.

“We should recall that we have 5,000 jails and prisons full of people with high rates of health problems, and where health services are often inadequate and disconnected from the community systems directing the coronavirus response,” said Dr. Homer Venters, former chief medical officer of the New York City jail system. “Coronavirus in these settings will dramatically increase the epidemic curve, not flatten it, and disproportionately for people of color.”

Jails are particularly frightening in this pandemic because of their massive turnover. While over 600,000 people enter prison gates annually, there are about 612,000 people in jail on any given day. More than half of the people in jail are only in there for two to three days. In some communities, the county jail or prison is a major employer. Jail staff members are also notoriously underpaid, may not have paid sick leave and are more likely to live in apartments, in close and frequent contact with neighbors. They return home daily to aging parents, pregnant partners or family members with chronic conditions.

Our penal system should have received more comprehensive guidance and material support from the Department of Justice, far earlier in this crisis. Like much of the federal level response, it is falling short....

American officials can learn from the harrowing story of South Korea’s Daenam Hospital. In late February, South Korea had already reported more than 3,150 confirmed cases, and of these, 101 were from patients in the Daenam psychiatric ward.  Seven of these patients have now died.  All but two patients in the ward contracted Covid-19. The ward was put on lockdown, in an attempt to confine the spread of the virus. Instead, the lockdown issued was a death sentence to many inside....

Aging people who are released after serving long sentences have a recidivism rate close to zero.  Governors and other public officials should consider a one-time review of all elderly or infirm people in prisons, providing immediate medical furloughs or compassionate release to as many of them as possible.

Though this NY Times commentary makes a pitch to "Governors and other public officials," I strongly believe criminal justice advocacy groups should be focusing advocacy now toward President Trump, Congress and federal judges.  For starters, if the federal government leads with a strong proactive response, many states and localities are likely to follow suit.  And it seems there are plenty executive branch tools already available under current law ranging from (mass) clemency relief for older and at-risk prisoners, to the Justice Department and the Bureau of Prisons (BOP) recommending (mass) compassionate release or release to home confinement for older and at-risk folks or perhaps for everyone who has served, say, 75% of their prison time.

Congress can and should get involved ASAP by enacting emergency legislation that could, for example, give BOP discretion to release any and every prisoner that has been scored at low-risk under the FIRST STEP Act's new risk tools.  Or, perhaps better yet, Congress could authorize the creation of a new "emergency agency" tasked with immediately devising the most effective and humane and just way to reduce the number of persons, in both the federal system and in state systems, now seemingly subject to having a jail or prison sentence turned into a possible death sentence by COVID-19.

Federal judges can and should be proactive here as well. In addition to re-calibrating their 3553(a) sentencing analysis given the ugly new reality of prison life, judges should sua sponte reconsider any and all past denied compassionate release motions because times surely have changed.  I think every single federal prisons has an argument that the coronavirus has created ""extraordinary and compelling reasons" that warrant a sentence reduction, and I wonder if anyone has thoughts about seeking a national class action on behalf of all federal prisoners under the statutory provisions of 18 U.S.C. § 3582(c)(1)(A) in order to at least establish a baseline of eligibility for sentence modifications. 

I could go on and on, and I likely will in some coming posts.  But the title of this post asks "when and how" not "if" our normal rules will change because I sense some federal judges and prison officials are already working on COVID responses in various scattered ways -- in part because everyone realizes that it is essential for the health of federal prison workers, as well as for prisoners, for there to be smart efforts to reduce prison populations amidst this global pandemic.  At some point, these scattered efforts will become a systematic plan, I sure hope that happens sooner rather than later.

Prior coronavirus posts:

• Connecting realities of incarceration to the outbreak of coronavirus 
• Rounding up more coverage of the frightening intersection of incarceration and the coronavirus
• Eager for stories and thoughts on the impact of the coronavirus on criminal justice, crime and punishment 

With death penalty repeal legislation, Colorado Gov contemplating commutations for three now on death row

This local article, headlined "Gov. Polis Supports Death Penalty Repeal, But He Has A Big Decision To Make Before Signing It," highlights the notable clemency issue facing the new Governor of Colorado. Here are the basics:

After years of debate, the era of capital punishment in Colorado is poised to end any day now with the signature of Gov. Jared Polis.  The Senate has sent over a bill to repeal the death penalty to the governor, meaning it will reach his desk any day. Once the legislature sends a bill over, he has ten days to sign or veto it, or else it becomes law without his signature.

State legislative leaders last month passed a repeal bill in historic votes, but delayed delivering it to the governor for nearly two weeks.  They decided to pause the action, according to House Speaker KC Becker, to give the governor more time to consider a weighty question: what to do about the three men currently on death row. 

The bill does not apply retroactively, leaving it in the governor's hands whether to commute their sentences to life without parole.  “I think there are a lot of discussions going on about clemency in general. And I have no idea what his plans are," Becker said Monday. “There are a lot of people reaching out to the governor about that right now.”

Late Tuesday night though, a spokesman for the governor told CPR News: “The Governor will sign the bill when it arrives and no decision has been made on any individual case."  As governor, Polis has the broad and sole authority to grant clemency in capital cases.

The topic is especially painful within the halls of the Colorado State Capitol.  Two of the state's death row inmates were convicted for the 2005 murders of Javad Marshall-Fields and Vivian Wolfe, the son and future daughter-in-law of Sen. Rhonda Fields.

Fields urged Polis to approach the question thoughtfully.  Both are Democrats.  “I really don’t have anything more to add to what’s already been said … I just hope that the governor would be strategic and thoughtful about the decisions he would be making as it relates to victims and the members that sat on those juries,” she said.

Fields said the governor should “do the right thing” by properly notifying victims’ families if he moves to commute any of the sentences.  The senator was starkly opposed to the repeal of the death penalty.

Polis has showed support for clemency.  He said in 2019 that repealing the death penalty would be “a strong indication that those who are currently on death row should have their sentences commuted to life in prison.”...

The third man on death row is Nathan Dunlap, who murdered four people in 1993 at a Chuck E. Cheese restaurant in Aurora. Former Gov. John Hickenlooper granted him an indefinite reprieve in 2013, a decision that could be reversed by a future governor.

Big group of US Representatives urges Acting Pardon Attorney to make sure "trial penalty" is part of clemency considerations

Via email I received this interesting note headed "U.S. Reps. Ask Justice Dept. to Review Trial Penalties in Clemency Considerations."  The note reports on this bipartisan letter from nearly 50 US Representatives to the Acting Pardon Attorney urging that she use here "authority when reviewing requests for clemency to consider individual criminal sentences that are significantly harsher than the original sentence offered by the prosecuting attorney in exchange for a guilty plea." Here is more from the letter:

These harsher sentences — also referred to as the “trial penalty” — can be imposed when a criminal defendant decides against accepting a guilty plea.  Instead of accepting a guilty plea, a criminal defendant decides to pursue their 6th Amendment right to a jury trial.  The trial penalty results in a significantly longer prison sentence than those imposed on more culpable defendants who voluntarily waive their constitutional right to a jury trial.

The “trial penalty” also impacts the criminal justice system when criminal defendants plead guilty to avoid a threatened or perceived consequence of going to trial.  These criminal defendants may have valid claims or a defense that could be raised at a trial.  However, these defendants are made aware of or are advised that taking the chance to go to trial could lead to unduly harsh penalties.

Harsher trial sentences have been used to deter people from exercising their 6th Amendment right to a trial.  A 2018 study by the National Association of Criminal Defense Lawyers found that 97% of criminal cases are resolved in a plea.  This strongly suggests that the risk of going to trial is too great for all but 3% of federal criminal defendants.

We therefore request that, when reviewing individual petitions for clemency, you request information from U.S. Attorneys on what sentencing offers were extended to the defendant as part of any plea deal.  This information can be compared with the sentence that the criminal defendant received to determine if they received a “trial penalty.” The “trial penalty” should be considered in clemency petitions by the President.

I am very pleased to see reference to the big 2018 NACDL report (blogged here), especially because it provides another to promote follow-up 2019 Federal Sentencing Reporter double-issue that included 16 original pieces on various aspects of "The Trial Penalty" (first blogged here).

A few prior related posts:

• "The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How To Save It" 
• Latest (double) issue of FSR covers "The Tyranny of the Trial Penalty": An introduction 
• Two new open access articles from FSR issue on "The Tyranny of the Trial Penalty"
• Two more open access articles from FSR issue on "The Tyranny of the Trial Penalty"  
• Another two more open access articles from FSR issue on "The Tyranny of the Trial Penalty" 

SCOTUS grants cert on a Mississippi case on the application of Miller to replace dismissed Malvo case

In this new order list, the Supreme Court this morning granted certain in one case, Jones v. Mississippi, No. 18-1259.  Here is the straight-forward question presented in Jones' cert petition:

Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.

As explained in this post and this post, after Virginia enacted new legislation to make all juvenile offenders eligible for parole, SCOTUS had to dismiss, more than four months after oral argument, the Malvo case which concerned whether infamous DC sniper Lee Malvo was constitutionally entitled to be considered for resentencing for a series of murders committed when he was 17.  It was expected that the Justice would be inclined to take up a "replacement case," and that now appears to be the Jones case.

Notably, the facts and legal realities surrounding the Jones case are strikingly different that the Malvo case.  Lee Malvo was just shy of 18 when he was involved is a high-profile series of thrill killings; Brett Jones had just turned 15 when he stabbed to death his grandfather in an altercation in which Jones claimed (unsuccessfully) he acted in self-defense.  In addition, the Malvo case involved the extra complications of federal habeas review of (unclear) state procedures; the Jones case involves a direct appeal from the state court on the question of what process or finding is required to impose a discretionary life without parole sentence on a juvenile killer.

Because of the somewhat simpler facts and simpler procedural posture, it would seem that Jones will present an interesting opportunity to essentially relitgate a range of issues left behind in the wake of the Miller and Montgomery cases.  I suspect some amici may argue, for example, that is is now time for the Eighth Amendment to be interpreted to categorically ban all juve LWOP (or at least to ban all LWOP sentences for crimes committed under the age of 16).  Some other amici might argue, however, that no particular finding or process should be required for before any juve LWOP sentence is imposed despite suggestions otherwise in Montgomery.

Importantly, because of the timing of all these developments, the oral argument in this case will not be until the Fall and we ought not expect an opinion before early 2021.

Making the case for an improved and independent federal clemency process

Cynthia Roseberry, who testified this past week at a House hearing about clemency, has this extended Hill commentary on the topic under the headline "If applied equitably, clemency power can begin to fix damage caused by a broken system." Here are its closing passages:

The clemency process must be completely independent of the system employed to incarcerate millions of people.  A first step is an independent commission with representation from all stages of the criminal justice system, including those who are formerly incarcerated, prosecutors, defense lawyers, corrections experts, and members of the public with appropriate resources to review the inevitable deluge of petitions from the masses.  Independence would ensure that one actor could not put a thumb of the scales of justice, as is the case in our current system, where the same person who prosecuted the case in the Department of Justice has this power.

This commission would promulgate clear and equitable criteria for release.  Applicants would have notice of the evidence necessary to successfully support a petition for clemency. Newly incarcerated persons would have an incentive to immediately work to achieve necessary rehabilitation.  The general public would understand and believe that the system is just and broadly available, and not reserved for a privileged few under a secret process.

Paramount among the criteria would be the consideration of anyone suffering under a sentence because of a failure to retroactively apply reform.  If we, the people, determine that we are no longer willing to seek incarceration for certain acts, then those who were previously incarcerated for those acts must go free in order for equal justice under the law to have meaning. Categorical clemency could be granted, for example, to those serving enhanced sentences where the penalty no longer applies and for those serving long sentences because of a trial penalty after electing to exercise their constitutional right to trial. Although there is a mechanism for compassionate release, it is underutilized and when employed, release is often denied.  The clemency commission could be used to clear this backlog of the elderly or inform who deserves to be released.

The executive has the opportunity to remove the scourge of mass incarceration from our justice system.  That scourge informs one in three black boys born today that they can expect to be incarcerated.  That scourge prevents $80 billion from being spent on their education because it is being spent to incarcerate.  When historians look back on what we did during our watch, let them record that we were enlightened; may they extol the virtue of our quest for equal justice for all and may they marvel at the expediency with which it was achieved.

Federal prosecutors and hundred of victims write in opposition to Bernie Madoff's compassionate release motion

Last month, as noted in this post, Bernie Madoff filed a motion for compassionate release thanks to a provision of federal law modified by the FIRST STEP Act.  This week, filings in response came from federal prosecutors.  This USA Today piece has the filing and reports on it  starting this way:

Federal prosecutors on Wednesday night objected to Ponzi scheme mastermind Bernard Madoff's bid for release from prison, arguing that the reviled and ailing ex-financier should continue serving his 150-year sentence.

Charging that the 81-year-old convict who ran one of history's biggest scams has "demonstrated a wholesale lack of understanding of the seriousness of his crimes and a lack of compassion for his victims," the U.S. Attorney's Office for the Southern District of New York urged a judge to keep him in prison.

"Madoff's crimes were 'extraordinarily evil.' His sentence was appropriately long. It should not be reduced," Assistant U.S. Attorneys Drew Skinner and Louis Pellegrino wrote in the filing to U.S. Circuit Court Judge Denny Chin, who sentenced Madoff more than a decade ago.

I think the first paragraph of the filing is effective:

The Government respectfully submits this memorandum of law in opposition to defendant Bernard L. Madoff’s request for 92% reduction in his sentence.  The nature of Madoff’s crime — unprecedented in scope and magnitude — wholly justified the 150-year sentence this Court imposed and is by itself a sufficient reason to deny Madoff’s motion.  Furthermore, since his sentencing, Madoff has demonstrated a wholesale lack of understanding of the seriousness of his crimes and a lack of compassion for his victims, underscoring that he is undeserving of compassionate release himself.  Finally, the Section 3553(a) factors weigh heavily against his release.

This CNBC piece report on some of the victim letters opposing Madoff's motion. Here is how this article gets started:

Hundreds of victims of Ponzi scheme kingpin Bernie Madoff really don’t want him to get out of prison despite his claim that he is dying. They recently told a judge their reasons in often-heartbreaking letters.

“Our lives, and not just financially, also emotionally, mentally, and physically . . . were Destroyed,” wrote one victim, who noted that her husband lost $850,000 to Madoff.

Another woman wrote, “I lost all my money and my husband of 40 years committed suicide because of his horrific crimes. As far as I am concerned, he should spend the rest of his life in jail,” she wrote to Judge Denny Chin in U.S. District Court in Manhattan.

Releasing Maddoff, a third victim told Chin, “would be to put another knife in the hearts of his victims.”

Those three letters are among the approximately 520 that Madoff victims sent Chin on the heels of Madoff’s court filing last month seeking early release from his 150-year prison sentence because he has terminal kidney disease.

Prior related posts:

• Terminally ill, Bernie Madoff is latest high-profile fraudster to seek compassionate release from federal prison thanks to FIRST STEP Act
• Spirited (but problematic?) advocacy for Bernie Madoff to receive compassionate relief
• "Madoff Wants Leniency. My Dad Received None. Why should the Ponzi scheme king get out to die, when the judges imprisoned my father with just weeks to live?" 

"The Saga of Pennsylvania’s 'Willie Horton' and the Commutation of Life Sentences in the Commonwealth"

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

In 1994, Reginald McFadden’s sentence of life without the possibility of parole was commuted by the governor of Pennsylvania, and he was shipped to New York to be supervised by a bunch of amateurs.  Within roughly 90 days, he murdered two people, raped and kidnapped a third, and possibly murdered a fourth. McFadden proved to be Lieutenant Governor Mark Singel’s “Willie Horton.”  Singel, who had voted for McFadden’s release as a member of the Board of Pardons, lost the gubernatorial election to his Republican opponent who ran on a “life-means-life” platform. Compounding the tragedy of McFadden’s actions, the Pennsylvania Constitution was amended to require a unanimous vote of the pardon board for the commutation of life sentences.

In the last 25 years, only 25 lifers have won commutation, 19 of whom were freed by the current chief executive, Governor Wolf.  Drawing on materials culled from the state archives and right-to-know requests, this article, which has the makings of a serial podcast, explores the bureaucratic blunders and biased judgments that have left a large number of aging rehabilitated lifers to await death by incarceration.  The Article ends with proposals for reform the commutation process to counter the fear of the “Willie Horton Effect” experienced by public officials involved in pardon decisions.

US House Judiciary Committee to hold hearing March 5 to explore "Presidential Clemency and Opportunities for Reform"

I am quite pleased to see that the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the Committee of the Judiciary of the US House of Representatives has this hearing scheduled for 9am on the morning of March 5, 2020 to address ""Presidential Clemency and Opportunities for Reform."  I am even more pleased to see, from this witness list, who will be the scheduled witnesses:

Ms. Rachel Barkow, Vice Dean and Segal Family Professor of Regulatory Law and Policy and Faculty Director, Center on the Administration of Criminal Law, New York University School of Law<

Mr. Mark Osler, Professor and Robert and Marion Short Distinguished Chair in Law, University of St. Thomas School of Law

Ms. Cynthia Roseberry, Deputy Director, National Policy Advocacy Department, American Civil Liberties Union

Ms. Kemba Smith Pradia, Founder, Kemba Smith Foundation

"Trump's three-track clemency process just might work"

The title of this post is the headline of this new Hill commentary authored by Mark Osler. I recommend the full piece, and here are excerpts:

Once upon a time, there was only one way to have the president consider your petition for a pardon (which mitigates the effects of a conviction) or a commutation (which shortens a sentence) — and it was terrible.  That process required that a petition go through seven levels of sequential review, mostly within the Department of Justice.  It was so inefficient and biased towards rejection that even President Obama, who seemed to have genuine concern for those in prison, granted just one commutation in his first five years in office.

Eventually, Obama got fed up and forced through over 1,700 commutations by cranking the broken machine harder and attempting to marshal an army of volunteer lawyers to advocate for petitioners.  Unfortunately, though, he did not repair or replace that machine itself, and left to his successor a process which remains in the clutches of the very body of prosecutors who sought over-long sentences in the first place.

That successor, of course, was Donald Trump. Within his first year in office he had set a template for action by pardoning Joseph Arpaio, the former sheriff in Maricopa County, Ariz.  This was the beginning of a second track for clemency within the Trump administration, one which favored right-wing heroes whose cases had been trumpeted by Fox News and Trump advisors like Alan Dershowitz and Rudy Giuliani.  That second track developed even as the official path, or first track, continued to flounder and nearly 14,000 petitions piled up in the broken system.

Most recently, that second track produced clemency for eight people on Feb. 18.... In a remarkable press release, the Trump administration actually listed the celebrity insiders who endorsed each grant... For the normally opaque field of federal clemency, that press release displayed remarkable transparency. We may be unsettled by this method of discernment, but it is consistent with the character and history of the man we elected president.

Hidden beneath those high-profile grants of mercy, though, was the emergence of a third track to clemency — one which should give hope to those of us who would like the pardon power to address the chronic over-sentencing of poor and working-class people who don’t have access to the media or celebrities.

Crystal Munoz, Tynice Hall, and Judith Negron — women who have little in common with the likes of Michael Milken — were all granted commutations from long prison terms.  According to an investigative report by the Washington Post, Trump has assembled a small group of advisors who are feeding him the cases of people like Munoz, Hall, and Negron, who were not Fox News darlings.  This could be the start of something very good.

NYU Professor Rachel Barkow and I have long advocated that the clemency process be taken out of the Department of Justice and put in the hands of a bipartisan commission that would make recommendations directly to the president.  The informal group gathered by Trump has some of the characteristics of what we have suggested, and the potential to grow into something of historic significance....

The problem with this working group, though, is that it leaves in limbo the nearly 14,000 people who followed the rules and submitted their petitions to the Pardon Attorney through the official first-track system.  These petitions sit in purgatory, ignored, even though many are for people similar to Munoz, Hall, and Negron.

The solution should be to enlarge the clemency working group and give it the resources it needs to address that backlog systemically.  Trump should sign an executive order that takes the Acting Pardon Attorney and her staff out of the Department of Justice and brings them into the White House, to report directly to the clemency working group. Meanwhile, that working group should be given official status by executive order, and allowed to continue the good work they began on Feb. 18.

President Trump did not invent discord over clemency.  But, somehow, he has created what can be a path to a better way. That path should be followed.

A few prior related posts:

• "Trump grants clemency to 11, including former junk bond king Michael Milken" 
• Recognizing historic modern first-term commutation work by Prez Trump in a single day 
• Lots of notable clemency news and notes and commentaries after Prez Trump's flourish of mercy

SCOTUS grants cert in Borden ACCA case to replace Walker case after death of petitioner

As noted in this prior post, back in November the Supreme Court granted cert in Walker v. United States to consider whether a criminal offense that can be committed with only a reckless mens rea can qualify as a "violent felony" under the Armed Career Criminal Act.  After seeing the facts in the Walker, case, which involved to possession of ammunition and not the possession of a gun, I reached out to some law professor colleagues and we filed this this SCOTUS amicus brief in US v. Walker in early January.

But Mr. Walker died in late January, and so his petition for a writ of certiorari was dismissed.  Today SCOTUS took up a replacement case, Borden v United States, which will given the Justices another chance to decide whether a crime that can be committed by being reckless can be a “violent felony” for purposes of the Armed Career Criminal Act.  Disappointingly, the Borden case involves gun possession, not just ammunition possession, so our amicus brief won't quite work for this new case.  Bummer.

In any event, though sentencing fans have to be excited about yet another ACCA case on the docket, the truly big SCOTUS cert news today concerns ACA, not ACCA.

Another timely reminder of NY Gov Cuomo ugly clemency record

This recent New York Daily News piece, headlined "Cuomo, miserly on clemencies: Thousands of elderly New Yorkers who pose no risk are locked in state prison," provides another reminder that New York's Gov continues to fail to lead on the clemency front after having talked big in the past.  Here are excerpts:

President Trump’s recent announcement of clemency for a handful of white-collar offenders was a reminder that proudly progressive New York shows much less mercy than the Trump administration to people on the wrong side of the law.

“Donald Trump commuted the sentences of four people in federal prison; representing more commutations than Gov. Cuomo has issued in 2019 and 2020 combined,” said a statement from the advocacy group Release Aging People in Prison. “With more than 9,000 New Yorkers in prison serving life sentences and over 10,000 incarcerated older adults languishing behind bars, there is ample opportunity for Cuomo to do the right thing.”

As the state Legislature heads into the thick of the annual bargaining over funding various programs, lawmakers should press Cuomo to save taxpayer money — and also make a statement of New York values — by granting clemency to more than a tiny handful of state prisoners and taking steps to release sick, aging prisoners who post no threat to public safety.

Right now, nearly 20% of the approximately 46,000 people in New York prisons are serving life sentences.  Many are getting old and sick, needing medical care. Health-care spending on the most seriously ill elderly inmates can exceed $130,000 per patient, according to a 2015 report by the Center for Justice at Columbia.

A lot of these prisoners, mostly men, were convicted of horrific, violent crimes decades ago.  Everything we know about violent crime — including records stretching back to the 1920s — confirms that senior citizens who have been locked away for 20 or 30 years are extremely unlikely to commit additional offenses. So why are we paying top dollar for the increasingly expensive medical care and incarceration of elderly people?...

Better yet, the Legislature should pass the Elder Parole Act, which died in committee last session.  The bill would allow prisoners over 55 — who have served at least 15 years behind bars — to go before the state parole board and argue for their release....

Our state has allegedly eliminated the death penalty, yet we have effectively sentenced people to death by incarceration.  New York’s governor boasts of being progressive, but is showing less mercy than Donald Trump.  And at a time when we face a multi-billion-dollar deficit, New York continues to lock up reformed and rehabilitated people in the name of vengeance.  Surely we can do better.

Prior related posts:

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

Notable new survey and resources concerning sentencing second looks and second chances

Fair and Just Prosecution and The Justice Collaborative this week released a new survey and additional materials on the hot topic of sentencing reviews and how prosecutors might approach second-look sentencing. This report, titled "Policies & Polling On Reducing Excessive Prison Terms," has these passages in its Executive Summary setting out the context and previewing some of the contents:

In recent years, despite an emerging bipartisan consensus around the need for criminal justice reform, there has been insufficient action to address people serving lengthy sentences who no longer pose a serious risk to public safety.  To gauge popular support for policies that provide opportunities for people serving long prison terms to seek release and return to their communities, we conducted a national survey of American voters.

Our results indicate that such policies have overwhelming support among American voters, regardless of ideology or party affiliation.  Voters believe that sentencing policies and practices should be closely connected to public safety — and that people who can be safely returned to their communities should not be warehoused because of excessive prison terms that waste taxpayer dollars and fail to reflect current values.  Voters believe that people deserve a second chance, and they support sentence-review policies that can provide it.

On the whole, voters believe that reviewing and reducing lengthy sentences serves a variety of important policy goals, including: bringing U.S. sentencing more in line with international standards, addressing racial disparities, reducing costs, correcting older excessive sentences that are out of step with current practices, and ensuring that people who pose little risk of committing crimes are not growing old behind bars, separated from their families and communities.

We sought public sentiment on two policies for sentence review that are gaining increased attention and that are the subject of a new policy brief, “Revisiting Past Extreme Sentences: Sentencing Review and Second Chances,” released today by Fair and Just Prosecution.  Those mechanisms include “second-look” legislation (see Appendix A) and sentence review by elected prosecutors (see Appendix B).  The survey results found strong support for both of these reforms:

• Overall, 69% of voters support “second look” legislation that allows for “the reexamination of old sentences to provide a second chance for people who have been in prison for more than ten years and who can be safely returned to the community.”
• Support for these reforms is bipartisan and cuts across geography and ideology. Support among “very conservative” voters for second-look legislation is 63% while support among “very liberal” voters is 82%. These numbers track support along party lines, with 81% of Democrats and 64% of Republicans supporting.
• Similarly, two-thirds (67%) of voters support “elected prosecutors reexamining past sentences to provide a second chance to people who have been in prison for ten years or longer and who can be safely returned to the community.”

In addition to the Fair and Just Prosecution's policy brief, The Justice Collaborative has also released another great document titled "Model District Attorney Sentence Review Guidelines."  Here I will provide links to these two important new second look documents:

• "Revisiting Past Extreme Sentences: Sentencing Review and Second Chances"
• "Model District Attorney Sentence Review Guidelines"

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

Will SCOTUS take up another case to address other post-Miller JLWOP issues now that Malvo has gone away?

As noted in this post , earlier this week Virginia enacted new legislation to make all juvenile offenders eligible for parole.  One effect of that new legislation was to moot, more than four months after oral argument, the Supreme Court's consideration of the Malvo case which concerned whether infamous DC sniper Lee Malvo was constitutionally entitled to be considered for resentencing since he was given LWOP for a series of murders committed when he was 17.  Many were wondering whether and how the Justices might use the Malvo case to address broader Eighth Amendment concerns, because the Malvo case touched on, but did not necessarily require resolution of, various issues related to past SCOTUS jurisprudence concerning juvenile sentencing.

Though the dispute in Malvo has gone away, the array of questions about how properly to apply Miller and related SCOTUS precedents in sentencing juveniles to extreme sentencing terms has not.  And it seems quite possible that some Justices, having become sufficiently involved in working through draft opinions for resolving Malvo, may now be eager to now take up a replacement case.  Kent Scheidegger sure seems eager for SCOTUS to take up a replacement case, as he has two new posts over at Crime & Consequences highlighting the range of potential replacements for Malvo:

• Next JLWOP Case on Conference List for Friday
• Additional Malvo Replacement Candidates

Because I am always keen for SCOTUS to take up more sentencing issues and to clarify its constitutional jurisprudence, I am hopeful we will see SCOTUS take up another case to address post-Miller issues ASAP.  But SCOTUS often has a way of dashing my hopes (e.g., its recent acquitted conduct cert denials), so I make no firm predictions.

Is Prez Trump legally unable to grant clemency to Roger Stone?

The question in the title of this post is prompted by this new Politico Magazine piece by Corey Brettschneider headlined "Why President Trump Can’t Pardon Roger Stone."  Here are excerpts:

Speculation that President Donald Trump might pardon Roger Stone has reached a fever pitch after Stone’s sentencing by a federal judge and the president’s repeated hints that he thinks the verdict unfair.  But fortunately, the Constitution’s framers imagined this nightmare scenario — a suspected criminal president pardoning a co-conspirator — and they put in the Constitution language to legally prohibit the pardon power in exactly this kind of case.

Both the plain meaning of the Constitution’s text and the historical evidence show that once a president has been impeached, he or she loses the power to pardon anyone for criminal offenses connected to the articles of impeachment — and that even after the Senate’s failure to convict the president, he or she does not regain this power.

Under Article II, Section II of the Constitution, the president is given the “power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.”  Pardons are supposed to be used as acts of mercy.  The framers thought of the pardon power as a “benign prerogative”—prerogative because it was mostly unchecked by courts or Congress, but benign because presidents would use it for the public good.

But the framers knew not to place blind trust in the president to wield the power justly. That’s why they explicitly forbade a president from exercising the pardon power in “cases of impeachment.”  The clause prevents the worst abuse of the pardon power: a president’s protecting cronies who have been convicted of crimes related to the president’s own wrongdoing....

The limit on pardons for co-conspirators wouldn’t affect many of the president’s pardons. Pardoning convicted criminals like former Illinois Governor Rod Blagojevich might be ill-advised, but it is still permitted.  By contrast, pardoning longtime adviser Roger Stone would not be permitted, as his crimes relate directly to the impeachment case....

Inevitably, some will argue that an impeached president should regain the power to grant clemency to his alleged co-conspirators in cases of acquittal by the Senate.  That ignores not only the framers’ clear intent, but also the plain text of the Constitution.

The framers deliberately used the phrase “cases of impeachment,” not “conviction.” One reason why is simple: A president convicted by the Senate would be removed from office, and thus unable to pardon anyone. As such, there would be no reason for the Constitution to curb a convicted president’s pardon power. No exception to the pardon power needs to be granted, because no such power exists.

Moreover, the framers provided no explicit avenue for him to regain the power they took away after a House impeachment vote.  Time limits are common in the Constitution—think of the president’s four-year term — and the absence of one connected to the pardon power suggests that the power is not in fact lost for a limited duration.  In the absence of an explicit reinstatement of pardon power in the text, the strong presumption has to be that it is still lost.

I am generally chary about any efforts to place novel limits on clemency powers, but this commentary is making an interesting textualist and originalist-based claim here. In the end, I think political interest, not legal concerns, will shape how Prez Trump uses his clemency power here (and elsewhere). But if Prez Trump does give some form of clemency to Stone, we now can see the terms of inevitable legal challenges to that effort.

Prior related posts:

• For Roger Stone, federal prosecutors advocate for within-guideline sentence of 7.3 to 9 years in prison ... which Prez Trump calls a "miscarriage of justice!" 
• DOJ now says "sentence of incarceration far less than 87 to 108 months [for Roger Stone] would be reasonable under the circumstances"  
• Would it be improper for a President to write a character letter for a defendant facing federal sentencing?
• Just some (of lots and lots of) commentary about Roger Stone(d) federal sentencing process 
• Over 1000 former DOJ employees calling for Attorney General William Barr to resign
• Roger Stone case generating some useful reflections on federal sentencing challenges and problems and lessons
• Roger Stone gets 40-month federal prison sentence ... but will he ever actually serve it? 

SCOTUS unanimously clarifies (in narrow way) that no special words are needed to preserve substantive reasonableness review

In this post when cert was granted in Holguin-Hernandez last June, I rejoiced because it has been nearly a decade since SCOTUS has said anything significant about reasonableness review.  But, recognizing that the case concerned only an appellate procedural issue, I was prepared for the ultimate ruling to be a narrow one.  And this morning in Holguin-Hernandez v. United States, No. 18–7739 (S. Ct. Feb. 26, 2020) (available here), the Justices through a unanimous opinion said about as little as possible while ruling for the defendant.  Here are some key excerpts from Justice Breyer's opinion for the Court, with my favorite and least favorite passages bolded (and lots of cites removed):

Congress has instructed sentencing courts to impose sentences that are “‘sufficient, but not greater than necessary, to comply with’” (among other things) certain basic objectives, including the need for “just punishment, deterrence, protection of the public, and rehabilitation.” Dean v. United States, 581 U.S. ___, ___ (2017)... If the trial court follows proper procedures and gives adequate consideration to these and the other listed factors, then the question for an appellate court is simply, as here, whether the trial court’s chosen sentence was “reasonable” or whether the judge instead “abused his discretion in determining that the §3553(a) factors supported” the sentence imposed....

Judges, having in mind their “overarching duty” under §3553(a), would ordinarily understand that a defendant [advocating for a shorter sentence] was making the argument (to put it in statutory terms) that the shorter sentence would be “‘sufficient’” and a longer sentence “‘greater than necessary’” to achieve the purposes of sentencing. Nothing more is needed to preserve the claim that a longer sentence is unreasonable.

We do not agree with the Court of Appeals’ suggestion that defendants are required to refer to the “reasonableness” of a sentence to preserve such claims for appeal.  The rulemakers, in promulgating Rule 51, intended to dispense with the need for formal “exceptions” to a trial court’s rulings....  The question is simply whether the claimed error was “brought to the court’s attention.” Rule 52(b).  Here, it was.

The Court of Appeals properly noted that, to win on appeal, a defendant making such a claim must show that the trial court’s decision was not “reasonable.” Gall, 552 U.S., at 56.  But that fact is not relevant to the issue here.  Our decisions make plain that reasonableness is the label we have given to “the familiar abuse-of-discretion standard” that “applies to appellate review” of the trial court’s sentencing decision. Id., at 46 (emphasis added); ... The substantive standard that Congress has prescribed for trial courts is the “parsimony principle” enshrined in §3553(a).  Dean, 581 U.S., at ___ (slip op., at 4).  A defendant who, by advocating for a particular sentence, communicates to the trial judge his view that a longer sentence is “greater than necessary” has thereby informed the court of the legal error at issue in an appellate challenge to the substantive reasonableness of the sentence.  He need not also refer to the standard of review.

The Government and amicus raise other issues.  They ask us to decide what is sufficient to preserve a claim that a trial court used improper procedures in arriving at its chosen sentence.  And they ask us to decide when a party has properly preserved the right to make particular arguments supporting its claim that a sentence is unreasonably long.  We shall not consider these matters, however, for the Court of Appeals has not considered them.  We hold only that the defendant here properly preserved the claim that his 12-month sentence was unreasonably long by advocating for a shorter sentence and thereby arguing, in effect, that this shorter sentence would have proved “sufficient,” while a sentence of 12 months or longer would be “greater than necessary” to “comply with” the statutory purposes of punishment. 18 U.S.C. §3553(a).

I am pleased to see that this decision clarifies, yet again, that district judges under Booker are duty-bound to impose sentences that are "sufficient, but not greater than necessary, to comply with" statutory requirements.  A full 15 years after Booker, more than a few courts still talk about their obligation to impose a "reasonable" sentence even though this is an appellate standard of review.  Kudos to SCOTUS for stressing in this case that "the substantive standard that Congress has prescribed for trial courts is the 'parsimony principle' enshrined in §3553(a)."

But I am displeased to see that this decision refuses to address any other reasonableness review issues.  I respect the Court's decision to be circumspect in a case only raising a small issue, but there are thousands of sentence appeals each year that could benefit from additional clarity about how reasonableness review should proceed and how various issues are properly (or improperly) preserved.

Interestingly, and perhaps not surprisingly, Justice Alito (joined by Justice Gorsuch), feels compelled to write a short concurring opinion in order "to emphasize what we are not deciding."  His opinion asserts that "the plain-error rule serves many interests" and he suggests that there are many ways even after Holguin-Hernandez to apply this limited review standard to various sentencing claims on appeal.

SCOTUS unanimously rejects effort to narrow ACCA-predicate drug crimes in Shular

Much of the never-ending Armed Career Criminal Act litigation concerns the reach of ACCA's "violent felony" definitions as predicate priors for applying the statute's extreme 15-year mandatory minimum term.  But the Supreme Court addressed unanimously today in Shular v. United States, No. 18–6662 (S. Ct. Feb. 26, 2020) (available here), the reach of the ACCA predicate provision defining "serious drug offense."  And while defendants have often prevailed on challenges to broad application of "violent felony," the unanimous opinion by Justice Ginsburg in Shular turns away a defense effort to limit what qualifies as a "serious drug felony."  Here is the full start to the Court's opinion:

The Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e), mandates a 15-year minimum sentence of imprisonment for certain defendants with prior convictions for a “serious drug offense.”  A state offense ranks as a “serious drug offense” only if it “involv[es] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” §924(e)(2)(A)(ii).  This case concerns the methodology courts use to apply that definition.

While the parties agree that a court should look to the state offense’s elements, they disagree over what the court should measure those elements against.  In the Government’s view, the court should ask whether those elements involve the conduct identified in §924(e)(2)(A)(ii) — namely, “manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.”  Petitioner Eddie Lee Shular, however, contends that the terms employed in the statute identify not conduct, but offenses.  In his view, those terms are shorthand for the elements of the offenses as commonly understood.  According to Shular, the court must first identify the elements of the “generic” offense, then ask whether the elements of the state offense match those of the generic crime.

Under the approach he advances, Shular argues, his sentence is not subject to ACCA enhancement.  The generic offenses named in §924(e)(2)(A)(ii), as Shular understands them, include a mens rea element of knowledge that the substance is illicit.  He emphasizes that his prior convictions were for state offenses that do not make knowledge of the substance’s illegality an element of the offense; the state offenses, he therefore maintains, do not match the generic offenses in §924(e)(2)(A)(ii).

The question presented: Does §924(e)(2)(A)(ii)’s “serious drug offense” definition call for a comparison to a generic offense?  We hold it does not.  The “serious drug offense” definition requires only that the state offense involve the conduct specified in the federal statute; it does not require that the state offense match certain generic offenses.

Even for hard-core ACCA fans (and you know who you are), there does not seem to be all that much of great significance in Shular (beyond a reminder that rulings for prosecutors can still sometimes garner unanimity from this Court).  There is an intriguing coda to the Shular ruling in the form of a three-page concurrence by Justice Kavanaugh in order to "elaborate on why the rule of lenity does not apply here."  In his elaboration, Justice Kavanaugh seems mostly just to reiterate basic doctrinal statements about the rule of lenity from past SCOTUS cases, so I am not quite sure what the separate opinion was designed to achieve (beyond giving the Justice an excuse to cite his own Harvard Law Review article: "Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2016)).

"Madoff Wants Leniency. My Dad Received None. Why should the Ponzi scheme king get out to die, when the judges imprisoned my father with just weeks to live?""

The title of this post is the full headline of this notable new Bloomberg Opinion commentary in which Ian Fisher reflects, in a personal way, on compassion and compassionate release.  I recommend the piece in full, and here are excerpts:

I cannot remember the name of the chaplain who called from the Butner correctional facility, perhaps the nation’s premier federal prison for sick white-collar prisoners. But he was a pro.  He talked slowly, in gentle circles about how my father had been very ill and how they did their best.  This verbal shuffling was all so I could figure out before the chaplain said the actual word that my father, Albert Ernest Fisher III, was dead. He was 78.

So it hit me with unexpected emotion, complicated now as a financial journalist, when I read that Bernie Madoff, 81, my father’s Butner prisonmate, is asking for compassionate release. He says he is dying.  I use “he says” as journalistic distancing and to signal that it may not be wise to believe everything that the engineer of the world’s biggest Ponzi scheme tells you....

After Madoff’s request, I’ve learned that the penal system is trending toward compassion — as well as a more hard-headed desire to unclog prisons and work toward fairness in drug sentencing.  The 2018 First Step Act, passed too late for my father, allows judges more flexibility to release federal prisoners. So when Bernard Ebbers, sent to prison for 25 years for $11 billion in accounting fraud, asked for compassionate release last year, it hardly raised a stir.  He was let out in December and died at home in Mississippi on Feb. 2, just around the time Madoff made his own request.

Still, when your own family life collides with larger forces embodied in First Step, the feelings are less abstract.  My dad was not in Madoff’s league, but there are parallels.  Both ran Ponzi schemes.  The crimes of each caused real damage, from life savings vaporized to student funds for room and board squandered in Bermuda and Neiman Marcus.  Neither was a violent threat to society, but the actions of each incurred a debt to it.  Those actions cost, in explicit ways....

My immediate reaction to Madoff’s request was a personal one: Why should he get out to die, when the judges imprisoned my father with just weeks to live? Madoff’s lawyers say he has maybe 18 months left in him. He’s been in prison nearly 11 years.

I don’t wish to be cruel. I wince seeing the terminally ill suffer in jail, my dad, Madoff or anyone else.  First Step seems like a reasonable attempt at reducing mass incarceration in the United States — case by case, on their merits, under specific guidelines.

But Madoff’s request has unexpectedly forced me to face something basic about being a citizen: Can you live with what you think is abstractly good even if is not good for you personally?  In my case, can I say it’s fine that Madoff may get to die freely when my father could not — even if I believe that people like him should be shown compassion?

Honestly, it’s not going down very well.  To me, Madoff is not a matter of public policy, brushing prison shoulders with my father: a better criminal, richer and more famous, who could glide free simply because times have changed.

Prior related posts:

• Terminally ill, Bernie Madoff is latest high-profile fraudster to seek compassionate release from federal prison thanks to FIRST STEP Act
• Spirited (but problematic?) advocacy for Bernie Madoff to receive compassionate relief

Voting 5-4 on predictable lines, SCOTUS approves of appellate reweighing of aggravating and mitigating circumstances to uphold a death sentence

The Supreme Court this morning handed down a notable (and notably short) opinion in the capital case of McKinney v. Arizona, No, 18-1109 (S. Ct. Feb. 25, 2020) (available here), which rules that an appeals court can, and a jury need not, reweigh aggravating and mitigating circumstances to uphold a death sentence. The court split 5-4 with Justice Kavanaugh writing the majority opinion and with Justice Ginsburg authoring a dissent joined by Justices Breyer, Sotomayor, and Kagan.

Key passages from McKinney should be of interest not only to those who follow capital punishment jurisprudence, but also those who care about jury trial rights and the reach of precedents like Apprendi and Ring.  Here are excerpts from the seven-page majority opinion:

Nearly 20 years [after James McKinney was sentenced to death], on federal habeas corpus review, an en banc panel of the U.S. Court of Appeals for the Ninth Circuit decided by a 6 to 5 vote that, in sentencing McKinney, the Arizona courts had failed to properly consider McKinney’s posttraumatic stress disorder (PTSD) and had thereby run afoul of this Court’s decision in Eddings v. Oklahoma, 455 U.S. 104 (1982)....  McKinney contends that after the Ninth Circuit identified an Eddings error, the Arizona Supreme Court could not itself reweigh the aggravating and mitigating circumstances.  Rather, according to McKinney, a jury must resentence him.

McKinney’s argument does not square with this Court’s decision in Clemons...  [which held] that “the Federal Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by harmless-error review.”  The Court explained that a Clemons reweighing is not a resentencing but instead is akin to harmless-error review in that both may be conducted by an appellate court...

In deciding whether a particular defendant warrants a death sentence in light of the mix of aggravating and mitigating circumstances, there is no meaningful difference for purposes of appellate reweighing between subtracting an aggravator from one side of the scale and adding a mitigator to the other side.  Both involve weighing, and the Court’s decision in Clemons ruled that appellate tribunals may perform a “reweighing of the aggravating and mitigating evidence.”  In short, a Clemons reweighing is a permissible remedy for an Eddings error....

Under Ring and Hurst, a jury must find the aggravating circumstance that makes the defendant death eligible. But importantly, in a capital sentencing proceeding just as in an ordinary sentencing proceeding, a jury (as opposed to a judge) is not constitutionally required to weigh the aggravating and mitigating circumstances or to make the ultimate sentencing decision within the relevant sentencing range....  Ring and Hurst did not require jury weighing of aggravating and mitigating circumstances, and Ring and Hurst did not overrule Clemons so as to prohibit appellate reweighing of aggravating and mitigating circumstances.

McKinney ... asserts that the Arizona Supreme Court’s 2018 decision reweighing the aggravators and mitigators constituted a reopening of direct review. Because this case (as McKinney sees it) is again on direct review, McKinney argues that he should receive the benefit of Ring and Hurst — namely, a jury resentencing with a jury determination of aggravating circumstances.

But the premise of that argument is wrong because the Arizona Supreme Court’s reweighing of the aggravating and mitigating circumstances occurred on collateral review, not direct review. In conducting the reweighing, the Arizona Supreme Court explained that it was conducting an independent review in a collateral proceeding.... Under these circumstances, we may not secondguess the Arizona Supreme Court’s characterization of state law.  As a matter of state law, the reweighing proceeding in McKinney’s case occurred on collateral review.

And here is how Justice Ginsburg's seven-page dissent gets started (with cites and footnotes removed):

Petitioner James Erin McKinney, convicted in Arizona of two counts of first-degree murder, was sentenced to death in 1993.  At that time, Arizona assigned capital sentencing to trial judges.  To impose a death sentence, the judge had to find at least one aggravating circumstance and “no mitigating circumstances sufficiently substantial to call for leniency.” Ariz. Rev. Stat. Ann. §13–703(E) (1993).  In 2002, in Ring v. Arizona, 536 U.S. 584 (2002), this Court held Arizona’s capital sentencing regime unconstitutional....  Here in dispute, does Ring apply to McKinney’s case?  If it does, then McKinney’s death sentences — imposed based on aggravating factors found by a judge, not a jury — are unlawful.

The Constitution, this Court has determined, requires the application of new rules of constitutional law to cases on direct review.   Such rules, however, do not apply retroactively to cases on collateral review unless they fall within one of two exceptions.  This Court has already held that Ring does not fall within those exceptions.  Thus, the pivotal question: Is McKinney’s case currently on direct review, in which case Ring applies, or on collateral review, in which case Ring does not apply?  I would rank the Arizona Supreme Court’s proceeding now before this Court for review as direct in character.  I would therefore hold McKinney’s death sentences unconstitutional under Ring, and reverse the judgment of the Arizona Supreme Court.

Ending JLWOP, Virginia makes all juvenile offenders eligible for parole (and thereby moots SCOTUS consideration of Malvo case)

As effectively reported here by Daniel Nichanian at The Appeal: Political Report, Monday brought big news out of Virginia that had an echo effect on the Supreme Court's docket. The report is headlined "Virginia Makes All Children Eligible For Parole, A Major Shift For This Punitive State," and here are the details:

Virginia will give hundreds of people who have been incarcerated for decades, ever since they were kids, a shot at petitioning for release. House Bill 35 will make people who have been convicted of an offense committed before the age of 18 eligible for parole after 20 years in prison. The legislature adopted the bill last week and the governor signed it into law [on Monday], effective July 1.

In practice, the bill abolishes sentences of life without the possibility of parole for minors; minors sentenced to sentences that amount to life in prison would also get some chance at parole. “It’s a huge victory,” Heather Renwick, legal director of the Campaign for the Fair Sentencing of Youth, told me. Besides banning life without the possibility of parole for minors, “the bill will provide broader relief and parole eligibility for all kids sentenced in the adult system,” she said.

Still, a major question looms over the concrete effect that the reform would have. It will only make people eligible to go in front of a parole board, with no guarantee that anyone gets paroled. And the recent history of Virginia’s board is to quasi-systematically deny the applications it receives. This signals the importance of strengthening the parole process alongside reforms that expand eligibility.

HB 35 also will not address the expansive mechanisms that lead minors to be prosecuted as adults in Virginia, and that trigger lengthy sentences in the first place. But the legislature is also considering separate bills to at least narrow those mechanisms....

In some ways, this bill is a modest reform. For one, it brings Virginia in line with many of its peers. With HB 35 signed into law, Virginia becomes the 23rd state (plus D.C.) to end sentences of life without the possibility of parole for minors. Oregon passed a similar bill last summer, and such proposals are on the table in other states as well.

HB 35, moreover, is a less expansive change than we’ve seen in other states. When neighboring West Virginia adopted a similar law in 2014, it made minors eligible for parole after 15 years, rather than the 20 that HB 35 stipulates. (Oregon’s law also stipulated 15 years.) And when Illinois established new parole rules for youths last year, it made people up to age 21 eligible to apply, affirming that considerations of youth do not just stop when someone is a day over 18. HB 35 still sets a cutoff at age 18.

The bill also better aligns Virginia on the U.S. Supreme Court rulings, such as Miller v. Alabama, which ended mandatory life without parole sentences for minors. The state has been slow at granting resentencing, and there is also litigation on whether the other mechanisms that impose extreme sentences on minors are any more constitutional. HB 35 addresses such concerns by retroactively conferring parole eligibility to minors sentenced to de facto life sentences.

When the bill becomes effective, it will affect 720 currently-incarcerated people, according to a legislative analysis....

Virginia may also soon pass a bill to make about 300 people sentenced between 1995 (when it ended parole) and 2000 (when it began informing juries of this change) eligible for parole.

Expanding eligibility may not by itself change much for anyone, though, including for minors. That’s because Virginia’s parole board has been denying the vast majority of applications it receives.

According to a Capital News Services analysis of Virginia’s parole board published in December, the vast majority of parole applications are denied: 94 percent since 2014. The rate of denial was above 90 percent for all age groups. Earlier analyses have found similar numbers.

This ABC News article explains the echo effect of this new Virginia law on a high-profile Supreme Court case argued last October:

D.C. sniper Lee Boyd Malvo asked the Supreme Court to dismiss his appeal on Monday after a change to Virginia state law now makes him eligible for parole....  In a letter to the Court signed by Malvo's attorney and an attorney for the state of Virginia, both sides agreed the case is now moot and should be dismissed.  Malvo will retain his sentences and remain behind bars, the letter says.

Over at Crime & Consequences, Kent Scheidegger has two posts in this wake of these developments, the first suggesting an alternative case for the Court to now take up and the second urging the Court to think about how best to dismiss the Malvo case:

• Virginia Legislature Moots D.C. Sniper, Jr. Case
• Malvo, Mootness, and Munsingwear

Without any comment, SCOTUS quickly denies cert on two big cases raising the constitutionality of acquitted conduct sentencing

For a number of months, I have been keeping an eye on two certiorari-stage cases being briefed to the Supreme Court, Asaro v. United States and Michigan v. Beck.  Asaro is a not-too-uncommon case involving a federal defendant whose sentence was enhanced on the basis of so-called "acquitted conduct,” Beck is a somewhat unusual case involving a split Michigan Supreme Court finding due process precludes acquitted conduct being used to enhance a sentence. 

The fact that the state was appealing in Beck, as well as various past comments by newer Justices Gorsuch and Kavanaugh, had me thinking maybe enough current members of the Supreme Court would be prepared to take up these important and challenging issues that have been churning with uncertainty in the wake of Fifth and Sixth Amendment rulings like Watts, Apprendi, Blakely and Booker.  But, via this lengthy order list, SCOTUS on its very first opportunity and without any comment from any Justice, quickly denied certiorari in both Asaro and Beck. 

I am a lot disappointed, and I suppose a little bit surprised, that these cases did not even generate a relist or any comment from any Justice.  I welcome spculation from others about why the Court seems so very eager to avoid taking up these issues.

Via statement after cert denial, Justice Sotomayor makes lengthy case highlighting doubts about guilt of Texas capital defendant

In the middle of a lengthy order list with mostly just cert denials of interest to criminal justice fans (two of which I will discuss in a coming post), Justice Sonia Sotomayor issued this lengthy statement respecting the denial of certiorari in the capital case of Reed v. Texas, No. 19–411.  The bulk of the seven-page statement discusses the evidence raising doubts about the guilt of Rodney Reed, and here are the Justice's closing paragraphs:

In the instant petition for a writ of certiorari, Reed has presented a substantial body of evidence that, if true, casts doubt on the veracity and scientific validity of the evidence on which Reed’s conviction rests.  Misgivings this ponderous should not be brushed aside even in the least consequential of criminal cases; certainly they deserve sober consideration when a capital conviction and sentence hang in the balance.  In the pending tenth state habeas proceeding, however, Reed has identified still more evidence that he says further demonstrates his innocence.  It is no trivial moment that the Texas courts have concluded that Reed has presented a substantive claim of actual innocence warranting further consideration and development on the merits.  While the Court today declines to review the instant petition, it of course does not pass on the merits of Reed’s innocence or close the door to future review.

In my view, there is no escaping the pall of uncertainty over Reed’s conviction.  Nor is there any denying the irreversible consequence of setting that uncertainty aside.  But I remain hopeful that available state processes will take care to ensure full and fair consideration of Reed’s innocence — and will not allow the most permanent of consequences to weigh on the Nation’s conscience while Reed’s conviction remains so mired in doubt.

Prior related post:

• Texas Court of Criminal Appeals issues stay of execution so trial court can examine Rodney Reed's "Brady, false testimony, and actual innocence claims"

Whom else should Prez Trump pardon?

The question in the title of this post is prompted by this recent CNN piece by James Gagliano, headlined "This is one pardon Trump should consider." This extended piece starts and ends this way

Since pardons are something of a topic du jour, Mr. President, I have a simple request.  I'm fairly certain you've heard of former NFL star quarterback Michael Vick.  We also all noticed the news reports that you just gifted a commutation for an alum of "The Celebrity Apprentice" who was accused of shakedowns involving a children's hospital and pardoned a former police commissioner convicted for tax fraud and lying to the government.  So please, sir, hear me out -- I have a far more deserving candidate for your leniency consideration.

ESPN's two-part 30 for 30 documentary entitled "Vick" aired recently.  And to tell the complete story of the film's 39-year-old protagonist, every second of its three-hour run time was required.  Vick's tale is one of against-long-odds achievement, meteoric ascension to the pinnacle of his profession and losing it all, while falling prey to hubris and his own cripplingly poor decision-making.  It is also a story of forgiveness, second acts and deserved redemption, Mr. President....

Michael Vick made good on his second chance.  He's back working in football as a television analyst.  He's a family man. He has acknowledged his failures and atoned for them. He has blamed no one else but himself.  Michael Vick could certainly be any of us. He made some grievous mistakes.  As have we all -- including the man who currently occupies the Oval Office.  Here's hoping you'll give this pardon request some serious consideration, Mr. President.

I am sure readers have some additional ideas for clemency candidates now that Prez Trump has his pen going. I would love to hear in the comments additional suggestions.  (Amusingly, thie Fox News piece highlights a humorous suggestion from a notable source under the headline "Mark Hamill wants Trump to 'pardon' notorious 'Star Wars Holiday Special'.")

Lots of notable clemency news and notes and commentaries after Prez Trump's flourish of mercy

Unsurprisingly, a number of reporters and commentators have lots to report and comment upon in the wake of Trump's latest clemency work (basics noted here and here and here).  Here are just a few pieces that seem like must reads in full (with a taste to whet appetites):

From the Washintong Post, "White House assembles team of advisers to guide clemency process as Trump considers more pardons":

The White House is moving to take more direct control over pardons and commutations, with President Trump aiming to limit the role of the Justice Department in the clemency process as he weighs a flurry of additional pardon announcements, according to people familiar with the matter.... The group, essentially an informal task force of at least a half-dozen presidential allies, has been meeting since late last year to discuss a revamped pardon system in the White House. Jared Kushner, Trump’s son-in-law and senior adviser, is taking a leading role in the new clemency initiative and has supported the idea of putting the White House more directly in control of the process that in past administrations has been housed in the Justice Department, officials said....

Trump, who prefers granting clemency to people with compelling personal stories or lengthy sentences, is inclined to grant more pardons before facing voters in November, one official said. “He likes doing them,” the official said...  While several of the pardons Trump granted Tuesday went to well-connected or wealthy associates, the president also commuted the sentences of three women who had been convicted of nonviolent offenses — part of the new task-force effort.

The women were recommended by [Alice] Johnson, who had her life sentence for a nonviolent drug offense commuted by Trump in 2018. Johnson has been working with the White House’s new clemency effort after Trump publicly asked her last year to submit a list of names of other people who deserved commutations, officials said. She recommended Crystal Munoz, Tynice Hall and Judith Negron, who each had their sentences commuted by Trump on Tuesday. Johnson is a member of the informal network of advocates providing clemency recommendations. Former acting attorney general Matthew G. Whitaker, Democratic commentator Van Jones and Brett Tolman, a former U.S. attorney in Utah, are also part of the group, according to a senior administration official.

From the New York Times, "The 11 Criminals Granted Clemency by Trump Had One Thing in Common: Connections":

The clemency orders that the president issued that day to celebrity felons like Mr. Kerik, Rod R. Blagojevich and Michael R. Milken came about through a typically Trumpian process, an ad hoc scramble that bypassed the formal procedures used by past presidents and was driven instead by friendship, fame, personal empathy and a shared sense of persecution. While aides said the timing was random, it reinforced Mr. Trump’s antipathy toward the law enforcement establishment.

From Zak Cheney-Rice in New York, "The Valuable Lesson Trump Pardonees Learned in Prison: Prison Is Bad and Unfair":

The president is not against aggressive sentencing. His entire foray into electoral politics is a testament to the opposite. The incoherence of his shifting positions on criminal justice and imprisonment is best accounted for by a simpler principle: He bristles when people he likes or who share his ideologies are held accountable for their misdeeds, and to fend off accusations of impropriety, he has found a convenient laundering mechanism for letting them off the hook by pardoning random black people. Reports suggest that Trump’s recent efforts to recast this dubious moral position as a broader commitment to criminal-justice reform is the brainchild of Jared Kushner, his son-in-law turned adviser, whose father spent several months in federal prison for tax evasion, witness tampering, and illegal political campaign contributions. Kushner and Trump seem to have come by their recent objections to the American criminal-legal system the same way that many people do: by having been personally affected by it and witnessing firsthand how unjust and destructive it is.

A few prior related posts:

• "Trump grants clemency to 11, including former junk bond king Michael Milken" 
• Recognizing historic modern first-term commutation work by Prez Trump in a single day 

Recognizing historic modern first-term commutation work by Prez Trump in a single day

Unsurprisingly, the pardons and commutations handed out by President Trump yesterday to high-profile individuals like Michael Milken, Rod Blagojevich, Bernie Kerik and Eddie DeBartolo have been dominating the news coverage of Trump's latest clemency work (basics noted here and here).  But I wanted to take a moment to note (and, in a sense, lament) that Prez Trump's granting of four commutations yesterday — to Tynice Nichole Hall, Crystal Munoz and Judith Negron along with Blagojevich — is quite historic in modern terms.

Last summer in this post, I used the official clemency statistics here from the Office of the Pardon Attorney to set out first-term commutation scorecard for US Presidents over the last half century.  Here are the particularly disconcerting numbers for the last four men in the Oval Office before Prez Trump:

Prez                     Commutations in entire first term

George HW Bush         3

William Clinton           3

George W Bush            2

Barack Obama             1

In other words, Prez Trump's granting of four commutations in a single day amounted to more commutations than any of the last four Presidents granted throughout their entire first term in the Oval Office.  (Of course, Prez Obama got quite busy with commutations in his second term, and so his final clemency scorecard looks a heck of a lot better than it looked at the end of his first term.)  In addition, with his four commutations yesterday, Prez Trump is now already up to a total of 10 commutations, which is one more than all of the last four Presidents combined granted throughout their entire first terms in the Oval Office.  

Prez Trump setting these modern commutation records is not really a reflection of robust use of his clemency pen as much as it serves as a sad commentary on the paucity of clemency granted by the four men in the Oval Office before Trump.  That said, Prez Trump seems to have come to appreciate (perhaps only for personal reasons) Alexander Hamilton's famous statement in Federalist 74 that the administration of justice can often "wear a countenance too sanguinary and cruel."  I sincerely hope he keeps on helping folks other than just friends and vocal allies with his clemency powers.

Prior related post:

• A (depressing) first term commutation scorecard for recent US Presidents 
• "Trump grants clemency to 11, including former junk bond king Michael Milken" 

Another thoughtful and thorough opinion finds statutory reform among "extraordinary and compelling reasons" for reducing sentence under § 3582(c)(1)(A)

As regular readers know, in lots of prior posts I have made much of a key provision of the FIRST STEP Act which now allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I consider this provision a big deal because I think, if applied appropriately and robustly, it could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.

I have previously flagged here and here and here  and here some notable examples of judges finding notable reasons sufficient to reduce a sentence.  But I have not blogged lately about any recent § 3582(c)(1)(A) rulings because my Westlaw searches have largely turned up only denials rather than grants of these motions.  Thanks to a helpful reader, though, I learned of a notable recent grant in US v. Maumau,  No. 2:08-cr-00758-TC-11, 2020 WL 806121 (D. Utah Feb. 18, 2020) (also available for download below).  This decision, authored by District Tena Campbell, provides an extended, thoughtful review of recent compassionate release jurisprudence and the changes to § 3582(c)(1)(A) brought by the FIRST STEP Act. 

I recommend review of the Maumau ruling in full for anyone working on or thinking about these isssues.  Here are some excerpts from the opinion that help highlight its importance:

Having reviewed all of the above cases, this court joins the majority of other district courts that have addressed this issue in concluding that it has the discretion to provide Mr. Maumau with relief, even if his situation does not directly fall within the Sentencing Commission’s current policy statement. Under the First Step Act, it is for the court, not the Director of the Bureau of Prisons, to determine whether there is an “extraordinary and compelling reason” to reduce a sentence....

As part of the First Step Act, Congress eliminated the consecutive stacking previously required for violations of § 924(c) [which had led to a 55-year sentence for the defendant for crimes committed at age 20]... When considered together, the court is inclined to find that Mr. Maumau’s age, the length of sentence imposed, and the fact that he would not receive the same sentence if the crime occurred today all represent extraordinary and compelling grounds to reduce his sentence.

The United States points out in its opposition that Mr. Maumau’s request is unlike the vast majority of compassionate release requests because he is not suffering from any medical- or age-related physical limitations.  But the fact that such cases are uncommon does not mean that Mr. Maumau’s request must be denied.  First, the lack of such cases is, at least arguably, part of what spurred Congress to pass the First Step Act.... Finally, and perhaps most importantly here, at least one district court has modified a sentence based solely on the First Step Act’s changes to § 924(c) sentencing.... Like the Urkevich court, this court concludes that the changes in how § 924(c) sentences are calculated is a compelling and extraordinary reason to provide relief on the facts present here.

The United States objects to this conclusion because, it notes, Congress could have made its changes to § 924(c) retroactive but it chose not to do so. See Brown, 2019 WL 4942051 at *5.  While this is a relevant consideration, it ultimately has little bearing on the court’s conclusion. It is not unreasonable for Congress to conclude that not all defendants convicted under § 924(c) should receive new sentences, even while expanding the power of the courts to relieve some defendants of those sentences on a case-by-case basis.  As just noted, that is precisely the approach taken by the Urkevich court.

Based on the above, the court concludes that a combination of factors — Mr. Maumau’s young age at the time of the sentence, the incredible length of the mandatory sentence imposed, and the fact that, if sentenced today, he would not be subject to such a long term of imprisonment — establish an extraordinary and compelling reason to reduce Mr. Maumau’s sentence....

Regarding what type of sentence to impose, Mr. Maumau “urge[s] the Court to ... hav[e] him brought to the district, where he can be interviewed by Probation and perhaps have an opportunity to address the Court.” (Def.’s Reply at 1 (ECF No. 1744).)  The court agrees that this is the best way for the court to determine an appropriate sentence modification.

Accordingly, the court sets this matter for a hearing at 2:00 p.m. on April 7th.  At that time, Mr. Maumau and the United States will be permitted to present their arguments regarding what would be an appropriate sentence for Mr. Maumau in light of the above factors.  The court further orders Mr. Maumau, in advance of the resentencing hearing, to meet with the Probation Office, and for the Probation Office to prepare a new Presentence Report that addresses Mr. Maumau’s character, his danger to the public, his likelihood of rehabilitation or recidivism, the type of sentence he likely would have received had he been charged and convicted after the First Step Act had been passed, and any other relevant considerations.

Download Maumau.DistrictCourtOpinion.Feb18.2020

Some (of many) 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)
• Another notable (but ultimately disappointing) ruling about sentence reductions under 3582(c)(1)(A) after FIRST STEP Act
• Another LWOP federal drug sentence reduced under 3582(c)(1)(A) after FIRST STEP Act
• Another District Court finds statutory sentence reform among "extraordinary and compelling reasons" for reducing sentence by 40 years under 3582(c)(1)(A) 

"Trump grants clemency to 11, including former junk bond king Michael Milken"

I have previously noted in this post three of Prez Trump's the high-profile clemency recipients today — Blagojevich, DeBartolo and Kerik — and I could not help but note these three were all white men of relative privilege convicted of crimes of power.  But now I see this Los Angeles Times piece, which has the headline that serves as the title of this post, and I am learning that a total of 11 persons have received clemency from Prez Trump today:

President Trump Tuesday granted full pardons to seven convicted felons including Michael Milken, the former junk bond king who became a face of the insider trading financial scandals of the 1980s. An official White House statement praised Milken, who served two years in prison in the 1990s, was for his philanthropy.

Trump also commuted the sentence of former Illinois Gov. Rod Blagojevich, found guilty nine years ago for trying to sell an open U.S. Senate seat.  Trump announced the news at Joint Base Andrews as he embarked on a four-day west coast swing and just hours after the White House announced the first pardon, that of former San Francisco 49ers owner Edward DeBartolo, Jr., who was convicted in a gambling fraud scandal....

Trump also issued full pardons to Ariel Friedler, Paul Pogue, David Safavian and Angela Stanton. And he commuted sentences for three others: Tynice Nichole Hall, Crystal Munoz and Judith Negron. 

Here is the link to the "Statement from the Press Secretary Regarding Executive Grants of Clemency" providing lots of background on all these individuals. Because of the sentencing element, I find the commutations especially interesting and here is how they are described (with bolding in the original):

In addition, the President is commuting the sentences of four individuals who have paid their debts to society and have worked to improve their lives and the lives of others while incarcerated.

Rod Blagojevich was the Governor of Illinois from 2003 until 2009, when he was charged with, among other things, offering an appointment to the United States Senate in exchange for campaign contributions. He was convicted of those charges and sentenced to 14 years in prison. Although the Seventh Circuit reversed some of his convictions related to the Senate appointment, it did not alter his 14-year sentence. He has spent 8 years in prison. People from across the political spectrum and from varied backgrounds have expressed support for shortening Mr. Blagojevich’s sentence, including Senator Dick Durbin, Reverend Jesse Jackson, Sr., former Representative Bob Barr, Representatives Bobby Rush and Danny Davis, former Attorney General Eric Holder, and Bishop Byron Brazier. Additionally, more than a hundred of Mr. Blagojevich’s fellow inmates have written letters in support of reducing his sentence. During his confinement, Mr. Blagojevich has demonstrated exemplary character, devoting himself to improving the lives of his fellow prisoners. He tutors and teaches GED classes, mentors prisoners regarding personal and professional development, and speaks to them about their civic duties. Notwithstanding his lengthy sentence, Mr. Blagojevich also counsels inmates to believe in the justice system and to use their time in prison for self-improvement. His message has been to “keep faith, overcome fear, and never give up.”

Tynice Nichole Hall is a 36-year-old mother who has served nearly 14 years of an 18-year sentence for allowing her apartment to be used to distribute drugs. While in prison, Ms. Hall has completed a number of job-training programs and apprenticeships, as well as coursework towards a college degree. In addition, Ms. Hall has taught prison educational programs to other inmates. She has accepted responsibility for her past behavior and has worked hard to rehabilitate herself. Among those who support this grant of clemency are Clemency for All Non-Violent Drug Offenders Foundation, Alice Johnson, Dan Schneider, Matt Whitaker, Adam Brandon, Kevin Roberts, Brett Tolman, and John Hostettler.

Crystal Munoz has spent the past 12 years in prison as a result of a conviction for having played a small role in a marijuana smuggling ring. During this time, she has mentored people working to better their lives, volunteered with a hospice program, and demonstrated an extraordinary commitment to rehabilitation. The Texas A&M Criminal Defense Clinic, the Clemency for All Non-Violent Drug Offenders Foundation, Dan Schneider, Matt Whitaker, Adam Brandon, Kevin Roberts, Brett Tolman, John Hostettler, and Alice Johnson are among the many who support this grant of clemency.

Judith Negron is a 48-year-old wife and mother who was sentenced to 35 years in prison for her role as a minority-owner of a healthcare company engaged in a scheme to defraud the Federal Government. Ms. Negron has served 8 years of her sentence and has spent this time working to improve her life and the lives of her fellow inmates. Her prison warden and her counselor have written letters in support of clemency. According to her warden, Ms. Negron “has always shown herself to be a model inmate who works extremely well with others and has established a good working relationship with staff and inmates.” This grant of clemency is supported by the Clemency for All Non-Violent Drug Offenders Foundation, Dan Schneider, Matt Whitaker, Adam Brandon, Kevin Roberts, Brett Tolman, John Hostettler, and Alice Johnson, among others.

I am pretty sure based on postings at the CAN-DO site that Tynice Nichole Hall, Crystal Munoz and Judith Negron are all women of color.   Gosh darn that Prez Trump, who always seems to find a way to both confirm and refute criticisms of how he approaches criminal justice matters.

Prez Trump pardons former 49ers owner amidst talk of clemency for former Illinois Gov and former NYPD commissioner

Prez Trump has his clemency pen out again, and a number of notable names are involved as per this breaking NBC News piece headlined "Trump expected to grant clemency to former Ill. Gov. Rod Blagojevich, ex-NYPD commissioner Bernard Kerik." Here is what is being reported just before 2pm:

President Donald Trump is expected to grant clemency to former Illinois Gov. Rod Blagojevich, who was impeached and removed from office in 2009 on corruption charges, and to former New York police commissioner Bernard Kerik, two people familiar with the president's plans said Tuesday.

The news comes hours after Trump signed an executive order granting a full pardon to former San Francisco 49ers owner Eddie DeBartolo Jr. related to a decades-old corruption charge.

Blagojevich, 63, was sentenced in 2011 to 14 years in federal prison on corruption charges related to his solicitation of bribes in an attempt to "sell" the Senate seat Barack Obama left open after being elected president. Blagojevich, a Democrat, has been serving his term at the low-security Federal Correctional Institute in Englewood, Colorado.  He was a contestant on Trump’s reality TV show "The Celebrity Apprentice" in 2010.

Kerik was sentenced in 2010 to four years in prison after pleading guilty to eight felony charges, including tax fraud.

The president said in August of last year that he was "very strongly" considering giving Blagojevich a reprieve — not the first he'd publicly floated the idea. "I'm thinking about commuting his sentence very strongly," Trump told reporters aboard Air Force One then. "I think it’s enough — seven years," he added, referring the amount of time the ex-governor has already served....

In 2018, in the weeks after he pardoned conservative provocateur Dinesh D'Souza, Trump had said he’d been “thinking about” taking the action on behalf of the ex-governor. Trump told reporters in May 2018 that Blagojevich had received a lengthy sentence "for being stupid and saying things that every other politician, you know, that many other politicians say” and “that he was treated unfairly.” The remarks were likely a reference to what the then-governor was picked up saying on secret federal wiretaps about his authority to appoint someone to Obama's open Senate seat.

Blagojevich has argued he was a victim of federal prosecutors run amok — a claim Trump himself levied at former special counsel Robert Mueller’s team, which investigated Russian interference in the 2016 election and the president. “Under the legal arguments that prosecutors used to convict me, all fundraising can be viewed as bribery," the ex-governor wrote in a 2018 op-ed in The Wall Street Journal that was widely viewed as a personal appeal to Trump for clemency.

Democrats — including Sen. Dick Durbin, D-Ill., and former Attorney General Eric Holder — have said publicly in the past that they’d support efforts by Trump to commute Blagojevich's sentence.

Notably, I blogged a few days ago about  of this recent USA Today commentary authored by Professor Nora Demleitner which noted that most people given clemency by Prez Trump are not disadvantaged people of color convicted of drug crimes like Alice Marie Johnson, but rather are white men of privilege convicted of crimes of power.  Blagojevich, DeBartolo and Kerik all fit that latter description.

A few (of many) prior related posts:

• "Don't be fooled by slick ad. Most people given clemency by Trump don't look like Alice Marie Johnson."
• Prez Trump suggests to reporters there will be more episodes of "Celebrity Clemency" 

UPDATE: Here are new headlines seemingly confirming that two different forms of clemency have been granted to Blagojevich and Kerik:

• "Trump commutes sentence of former Illinois Gov. Rod Blagojevich"
• "Trump Issues Pardon for Ex-NYPD Commissioner Bernard Kerik"

So much for a speedy resolution in the DC Circuit of the injunction currently precluding federal executions

Though SCOTUS is in the midst of a long all-star break, SCOTUSblog continues to post some notable new copy.  A couple of new posts on the death penalty caught my eye and are worthy reads:

• SCOTUS for law students: The Supreme Court and the death penalty
• The federal death penalty at the Supreme Court

The latter of these two posts notes that the "Department of Justice has recently announced its intention to resume federal executions, prompting challenges that are currently pending."  That last phrase reminded me that, as reported here, back in early December the Supreme Court denied an application to lift a lower court injunction precluding federal executions while stating that it would "expect that the Court of Appeals will render its decision with appropriate dispatch."  In a companion two-page statement authored by Justice Alito (joined by Justices Gorsuch and Kavanaugh) ended this way:

The Court has expressed the hope that the Court of Appeals will proceed with “appropriate dispatch,” and I see no reason why the Court of Appeals should not be able to decide this case, one way or the other, within the next 60 days.  The question, though important, is straightforward and has already been very ably briefed in considerable detail by both the Solicitor General and by the prisoners’ 17-attorney legal team.  For these reasons, I would state expressly in the order issued today that the denial of the application to vacate is without prejudice to the filing of a renewed application if the injunction is still in place 60 days from now.

We are now 73 days from when these matters were addressed by the Supreme Court on December 6, 2019, and these issues were argued before the DC Circuit now more than a month ago.  I am still expecting that an opinion will be coming from the DC Circuit this month, but the fact that we are already two week past the 60-day "recommendation" from Justice Alito serves as yet another reminder of how slowly the wheels of capital justice can turn.

Prior related posts:

• "Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse"
• Previewing the (swift? endless?) litigation sure to ensue in wake of effort to restart the federal machinery of death
• Rounding up capital commentary in response to AG Barr's effort to restart the federal machinery of death 
• Federal judge halts pending scheduled federal executions based on contention that planned execution protocol "exceeds statutory authority" 
• How quickly could litigation over federal execution procedures get to SCOTUS?
• DC Circuit denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions 
• SCOTUS denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions
• Dispute over legality of new federal execution protocol up for argument in DC Circuit 

As Virginia and other states consider expanding parole, might the federal system do the same in a SECOND STEP Act?

In this 2017 Federal Probation article, titled "Reflecting on Parole's Abolition in the Federal Sentencing System," I imagined various ways modern federal sentencing reform might have been less problematic if some form of parole had been retained in the Sentencing Reform Act of 1984.  I also noted how the legislation that became the FIRST STEP Act served as a kind of "parole light" while also explaining why I thought reformers "troubled by the punitive policies that the SRA helped usher into the federal system ought to think about talking up the concept of federal parole anew."

This not-so-old-but-already-dated article came to mind as I saw this piece from the New York Times this week under the full headline "‘It Didn’t Work:’ States That Ended Parole for Violent Crimes Are Thinking Again; Virginia, newly dominated by Democrats, may broaden parole for the first time in a generation. Others states are watching."  Here are excerpts:

After Zenas Barnes was convicted of three robberies in the 1990s, he accepted a plea deal that stunned even veteran lawyers for its severity: 150 years in state prison. Mr. Barnes, who was 21 at the time, said that he had not realized when he took the deal that the Virginia Legislature had, only months before, abolished the most common type of parole, meaning that there was a good chance he would die in prison.

Twenty-five years later, the State Legislature, newly dominated by Democrats, is poised to broaden parole for the first time in a generation.  The move would give Mr. Barnes and thousands of other prisoners convicted of violent crimes a chance for parole, which allows inmates to be released early.

Watching closely are lawmakers across the nation, including in California, New York, Illinois and Pennsylvania.  Like Virginia those states decades ago virtually eliminated discretionary parole, granted by appointed boards on a conditional basis, during an era of surging violent crime and the imposition of progressively harsher punishments.

“We thought we were fighting crime, and it didn’t work,” said David Marsden, a Democratic state senator in Virginia, who has previously introduced bills to restore parole but was blocked by Republican majorities.  “But more recently, we’ve stopped trying to teach lessons and started trying to solve problems.  People are now more likely to believe that people deserve a second chance.”...

Even in Virginia, where Democrats won majorities in both chambers of the Legislature in November, and which also has a Democratic governor, Ralph Northam, the question of expanding parole remains politically perilous.  This month, Democrats shelved a bill that would have restored the possibility of parole for nearly 17,000 inmates — more than half the state’s prison population.  Instead, Democrats have focused on more modest efforts to restore parole to older inmates.

“The prevailing attitude of policymakers is we’ve come to the limit because they don’t want to release violent offenders,” said Marc Mauer, executive director of the Sentencing Project, a nonprofit that advocates shorter sentences and other policy changes to the criminal justice system.  There is no significant difference in violent crime rates between states that allow parole and those that do not, according to federal data.  But Mr. Mauer said many people associate parolees with recidivism and violence, and their crimes often garner significant public attention.

Republican lawmakers have warned that restoring parole would make Virginia — which has the fourth lowest violent crime rate of any state — more dangerous.  “When parole is granted, it will result in violent criminals being released into our communities,” said Robert Bell, a Republican member of the House of Delegates.  Mr. Bell added that parole “will force victims of violent crimes and their families to relive the worst day of their lives over and over again.”...

Both chambers of the Virginia Legislature have already approved a bill that would make hundreds of prison inmates eligible for parole because they were convicted by juries that were not informed by courts that defendants were no longer eligible for parole after the practice was abolished in 1995.  Governor Northam has said he will support it.

Mr. Northam has also said he supports a bill that would grant parole eligibility to prisoners who are older than 50, a group that may number in the thousands.  He has not yet said whether he would sign a measure that would restore the possibility of parole to thousands of inmates who have served 20 years or more of their sentences.  Both bills are expected to be passed by both chambers of the Legislature.  The governor has not taken a position on the shelved bill that would have restored the possibility of parole for more than half the state’s prison population.

I think it wise for any parole reform, at the state or federal level, to move forward incrementally.  Given the Supreme Court's Eighth Amendment rulings, jurisdictions ought to have general parole mechanism that are available to all young offenders sentenced to very long prison terms.  Likewise, public safety concerns would be minimized if and when parole eligibility is at least initially focused upon defendants imprisoned for long periods for non-violent offenses (especially for first offenses and for offenses without victims).

Notably, the federal prison system likely has many more defendants imprisoned for long periods for non-violent offenses than do state systems because, according to federal prison data, roughly 40% of federal prisoners are incarcerated for drug offenses and nearly half are serving terms of 10 years or longer.  In other words, I think the federal system would be one in which it would be ideal to develop a new modern (and initially modest) system of parole.

Notably, as reported in this post back in November, at a Senate Judiciary oversight hearing with the head of the federal Bureau of Prisons, Senator Lindsay Graham raised the idea of "reinstituting parole in the federal system."  I am sorry we have not yet seen any follow-up on this idea from Senator Graham or others, but I am encouraged that parole appears to no longer be a dirty word in various criminal justice reform conversations.  And, as the title of this post indicates, I think it would be a great idea to include in any SECOND STEP federal reform proposals to follow up the "parole light" elements in the FIRST STEP Act.

Terminally ill, Bernie Madoff is latest high-profile fraudster to seek compassionate release from federal prison thanks to FIRST STEP Act

As reported here a few months ago, former WorldCom CEO Bernie Ebbers secured compassionate release from federal prison thanks largely to a provision of the FIRST STEP Act and to a federal judge believing his claim that he was extremely ill.  Though federal prosecutors questioned just how ill Ebbers really was (as noted here), the judge was proven right in this case: Ebbers passed away this past weekend.

Now, as reported here in a lengthy Washington Post piece, another notable high-profile fraudster is seeking compassionate release: "Ponzi scheme king Bernie Madoff, who bilked investors out of billions, seeks medical release from prison."  Here are the details:

The man convicted of the greatest Ponzi scheme in modern American history, guilty of bilking thousands of investors in 49 states and more than 120 countries, is asking a judge to release him from a life sentence so he can die outside prison walls.  Bernie Madoff said he is in the end stages of kidney disease, must use a wheelchair and is in need of round-the-clock help.  At 81, he is too old for a transplant, and he has been moved to palliative care within the Federal Medical Center prison in Butner, N.C.  He is asking for compassionate release so he can die at home.

In phone interviews with The Washington Post, Madoff expressed remorse for his massive fraud, in which he swindled investors out of billions, and said his dying wish is to salvage relationships with his grandchildren.  He has served 11 years of the 150-year sentence he was given in 2009, after pleading guilty to 11 criminal counts, including fraud and money laundering.  “I’m terminally ill,” Madoff said.  “There’s no cure for my type of disease. So, you know, I’ve served. I’ve served 11 years already, and, quite frankly, I’ve suffered through it.”

Relatively few inmates seeking compassionate release have had their petitions approved by the Federal Bureau of Prisons since the federal program was created in 1984.  But a bipartisan criminal justice reform law passed in late 2018 gave prisoners the right to appeal denials to a federal judge, and that is what Madoff is attempting.  His attorney filed a motion late Wednesday in the Southern District of New York.

Madoff’s request will test the justice system’s capacity for compassion weighed against his unprecedented crimes.  His scheme ruined scores of lives, stole the financial futures of thousands and sent many retirees back to work after wiping out their nest eggs.   At least four people connected to Madoff have died by suicide, including his son, Mark, who hanged himself on the second anniversary of his father’s arrest. Madoff’s remaining child, Andrew, died of cancer in 2014.

Others continue to suffer. Gregg Felsen’s savings were wiped out. Now 72, Felsen works as a wedding and event photographer in Palm Springs, Calif., to make a living. He said that he will never be able to retire and that Madoff doesn’t deserve to be granted a compassionate release.   “I never got a break; why should he get a break? He’s terminally ill? I’m terminally broke,” said Felsen, who said he did not receive restitution.  “He ruined a lot of people’s lives and changed them forever. He deserves no leniency whatsoever.”

The Bureau of Prisons acknowledges that Madoff has about 18 months to live, according to his medical records.  A prison doctor diagnosed him with end-stage renal disease, hypertension, cardiovascular disease and hyperparathyroidism, among other ailments.  The Bureau of Prisons said he fits the criteria for compassionate release but rejected his application in December.“His condition is considered terminal with a life expectancy of less than 18 months,” Ken Hyle, general counsel for the Bureau of Prisons, wrote in the rejection letter.  “However, Mr. Madoff is accountable of a loss to investors of over $13 billion.  Accordingly, in light of the nature and circumstances of his offense, his release at this time would minimize the severity of his offense.”...

Madoff said he is on dialysis and takes about 10 medications a day, including amlodipine and diltiazem for high blood pressure, atorvastatin (Lipitor) for high cholesterol, and calcitriol (a man-made form of vitamin D).   He said he has been given a back brace, bed wedge, medical shoes and a lower bunk.  He said that he has pain and cramping in his thighs, hips and knees and that he rarely sleeps more than an hour at a time, often waking from leg cramps.  Prison records indicate that Madoff is Care Level 4, defined as “functioning may be so severely impaired as to require 24-hour skilled nursing care or nursing assistance.”...

Considered the most significant prison rehabilitation law in more than a decade, the First Step Act was highlighted by President Trump in his State of the Union address Tuesday.  But the law has also been criticized by some conservatives who say its leniency was misguided and opened the door for notorious criminals such as Madoff to be released.  At least 124 people were granted compassionate release in 2019, the first full year of the First Step Act, according to the Justice Department, compared with 34 in all of 2018.

Pat Nolan, director of the American Conservative Union Foundation’s Center for Criminal Justice Reform, worked with lawmakers drafting the First Step Act and said society gains nothing by letting people who are losing their physical and mental faculties languish in prison.  With their bodies and minds failing, he said, prison walls become redundant.  “For some, it’s never enough, but none of what he suffers is going to get a dime back to what he swindled or cheated,” Nolan said. “And, again, I don’t minimize at all [what Madoff has done]. But it’s the hallmark of a society to not punish somebody beyond reasonableness.”

Madoff’s attorney, Brandon Sample, said there shouldn’t be a compassionate release program if all prisoners, including Madoff, aren’t eligible.  “What does it say about us as a society? Are we going to be so insistent that it doesn’t matter, let them suffer there in prison? If that’s the case, why do we need compassionate release?” he asked.  “I don’t dispute that his conduct, his offense behavior impacted many, many people’s lives and caused harm.  There’s no dispute. But the question now is, with his present situation, what would that hypothetical jury do today faced with the Bernie Madoff who’s in a wheelchair, who’s on his last legs of life?”

In light of the extraordinary crimes of Bernie Madoff and their extraordinary consequences, I actually think a hypothetical jury might well demand that Madoff spend the rest of his dwindling day behind bars.  But, under federal law, this issue is not one for a jury to decide.  Rather, specifically pursuant to 18 USC 3582(c)(1)(A)(i), a federal judge will have to decide, "after considering the factors set forth in section 3553(a)," if she finds "extraordinary and compelling reasons warrant"  a sentence reduction for Madoff.  (Ivory tower aside: arguably a federal judge might have power to impanel an advisory jury to assist with making this judgment, but only a crazy Apprendi-addled academic like me could ever even imagine such a move.)

Notably, the judge who originally sentenced Madoff to the maximum available term of 150 years, Judge Denny Chin, is no longer a District Judge after his elevation to the Second Circuit by Prez Obama.  Consequently, some other District Judge in the Southern District of New York will resolve Madoff's motion.  I am inclined to predict that a judge may be inclined to embrace the BOP's view that "in light of the nature and circumstances of his offense, [Madoff's] release at this time would minimize the severity of his offense."  But this one will be interesting to watch.

UPDATE: Here is a copy of the motion that was filled in this matter.

Noticing that two Justices keep noticing challenges to old (vague?) guidelines

Law360 has this lengthy new piece, headlined "In Dissent: Why 2 Justices Keep Spotlighting Career Offenders," which flags the notable sentencing-related work of a couple of Justices in orderl lists. Here are the essentials:

Close watchers of the U.S. Supreme Court may have noticed a recurring theme in orders issued over the past two years.

In at least 27 cases, Justices Sonia Sotomayor and Ruth Bader Ginsburg have gone out of their way to dissent from their colleagues’ rejection of petitions by “career offenders,” or people serving extra-long sentences due to prior violent crime or drug convictions.

The petitioners claim that the U.S. Sentencing Guidelines, which were mandatory at the time of their sentencing hearings, defined violent crimes by using an unconstitutionally vague phrase.  Their argument is supported by [the 2015 Johnson] high court ruling that invalidated the exact same phrase as it was used in a separate law.  The Seventh Circuit Court of Appeals and district courts in four other circuits have explicitly agreed with their reasoning, but six appellate courts have rejected it. Sotomayor highlighted that fact in an October 2018 dissent called Thilo Brown v. U.S. — the first time she and Ginsburg publicly scolded their colleagues for refusing to take up the split.

“This case presents an important question of federal law that has divided the courts of appeals and in theory could determine the liberty of over 1,000 people,” Sotomayor wrote, citing figures in an amicus brief supporting Brown. “That sounds like the kind of case we ought to hear.”...

Despite their efforts, the two justices have had no success in peeling off peers. With the court looking unlikely to resolve the circuit split, some career offenders in places like Wisconsin, Illinois and Texas are getting out years earlier than planned. Others, in places like California, Tennessee and Kansas, have no shot at relief beyond a presidential clemency or legislative reform....

Part of the reason for the other justices’ reluctance to take up the issue could be the fact that the alleged injustice is an “issue of diminishing importance,” according to Leah Litman, a University of Michigan law professor who co-signed briefs in related cases. “No one is still being sentenced under that provision,” Litman said. “It just concerns people being resentenced. Because it won’t arise in the future, it has less purchase on the court’s time.”

A deep look into the still deeply problematic world of federal clemency

The Washington Post has this long new article about the federal clemency power headlined "Most Trump clemency grants bypass DOJ and go to well-connected offenders."  I would recommend the article in full, even though I think the piece fails entirely to note widespread criticisms of the modern failings of the Office of the Pardon Attorney and also fails to note that many Democratic candidates for Prez have proposed reforms to DOJ's clemency role.  Here are excerpts:

Under Trump, the pardon office has become a bureaucratic way station, according to government data and interviews with lawyers, criminal justice advocates, and former pardon and White House officials.  Most of Trump’s grants of clemency have gone to well-connected offenders who had not filed petitions with the pardon office or did not meet its requirements, The Post review shows.

“The joy you get finding meritorious people, working on those cases, making recommendations that go to the White House, seeing people receive the grants — you feel like you’ve done something,” said Larry Kupers, the former head of the office, who quit last year.  “If that’s not happening, it feels like you are spinning your wheels.”

Trump’s approach is perfectly legal.  The Constitution’s only restrictions on the pardon power is that it applies only to federal crimes and not to impeachment.  Trump has reveled in that clout, saying “the power to pardon is a beautiful thing,” and claiming he has the “absolute power” to pardon himself. He has used the power, however, very sparingly....

Asked what advice he would give offenders seeking leniency, Kupers said, “Find a way to get to Kim Kardashian. I’m very serious about that.”...

For decades, federal offenders filed petitions for clemency with the pardon office, which assigns a staff attorney to investigate each case.  The office may be one of the least visible and least understood corners of a federal government scorned by a president who has declared war on what he calls the “deep state.” With an annual budget of about $4.5 million, the office employs about 19 people, including 11 attorneys.

For pardons, the office looks for acceptance of responsibility and good conduct for a substantial period of time after conviction, among other considerations, according to justice department guidelines. Commutations hinge on the undue severity of a sentence, the amount of time served and demonstrated rehabilitation....

[Trump's] administration inherited a backlog of more than 11,300 petitions, according to justice department statistics. Nearly 7,600 petitions have been filed since Trump took office, as of late January. About 5,900 petitions have been closed by the pardon office during Trump’s tenure because the inmate was released, died or ineligible for clemency.

Trump’s decisions on only 204 petitions means nearly 13,000 people are waiting. A Justice Department spokeswoman declined to say how many of its recommendations are backlogged at the White House.... The current pardon attorney, Rosalind Sargent-Burns, said she was not authorized to talk to the press....

Most presidents in recent decades have faced accusations at one time or another that they exploited the pardon power. Bill Clinton issued pardons in the final hours of his presidency to his half brother, a Whitewater business partner, his former housing secretary and a fugitive commodities trader married to a major Democratic donor.

Presidents also have circumvented the formal pardon process to advance national interests, as when Obama offered clemency to seven Iranians charged with violating U.S. trade sanctions in exchange for the release of four Americans imprisoned in Iran, including Post reporter Jason Rezaian.

Under Trump, however, politically motivated grants have become the rule, not the exception....

Lawyers who specialize in clemency say the system has moved slowly for decades. The way they tell it, the pardon office is like a black box — the only updates available on petitions are “pending” and “denied.” Deputy attorneys general, who make the final determination before petitions reach the White House Counsel’s Office, tend to be reluctant to mitigate decisions made by fellow prosecutors in the criminal justice system.

As regular readers now, I am more than happy to criticize Prez Trump for his distinctive approach to the use of his clememcy powers. But he does merit praise for using the power at all, and prior Presidents have not had sounder records on this front even when paying more attention to the (often harsh and dysfunctional) advice of the Justice Department.

US Sentencing Commission publishes latest FIRST STEP/FSA resentencing data

The US Sentencing Commission today released the latest in a series of data reports titled "First Step Act of 2018 Resentencing Provisions Retroactivity Data Report."  The introduction to the report provides this context and overview:

On December 21, 2018, the President signed into law the First Step Act of 2018.  Section 404 of that act provides that any defendant sentenced before the effective date of the Fair Sentencing Act of 2010 (August 3, 2010) who did not receive the benefit of the statutory penalty changes made by that Act is eligible for a sentence reduction as if Sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the offender was sentenced.  The First Step Act authorizes the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court to make a motion to reduce an offender’s sentence.

The data in this report represents information concerning motions for a reduced sentence pursuant to Section 404 of the First Step Act which the courts have granted. The data in this report reflects all motions granted through December 31, 2019 and for which court documentation was received, coded, and edited at the Commission by January 29, 2020.

These new data from the USSC show that 2,387 prisoners have been granted sentence reductions, and that the average sentence reduction was 71 months of imprisonment among those cases in which the the resulting term of imprisonment could be determined.  Though this data is not exact and may not be complete, it still seems sound to state that this part of the FIRST STEP Act, by shortening nearly 2400 sentences by nearly 6 years, has now resulted in over 14,000 prison years saved(!).

Of course, as I have noted before, the FSA retroactivity provision of the FIRST STEP Act was only a small piece of the legislation.  But these latest data show yet again how this small piece has had huge impact that can be measure in lots of years of lots of lives.  And, of course, people of color have been distinctly impacted: the USSC data document that over 91% of persons receiving FSA sentence reductions were Black and more than another 4% were Latinx.

Effective accounting of Miller implementation four years after Montgomery made ruling retroactive

A few days ago marked four years since the US Supreme Court decided Montgomery v. Louisiana, a ruling which made retroactive the Court's prior decision in Miller v. Alabama declaring mandatory LWOP for juvenile murderers unconstitutional.  The folks at The Campaign for the Fair Sentencing of Youth marked the occasion by producing this short effective review of juve homicide sentencing past and present.  Here are some portions of the report:

When the Supreme Court decided Montgomery, over 2,800 individuals in the U.S. were serving life without parole for crimes committed as children — a sentence that the United States alone is known to impose on children. In the four years since Montgomery was decided, the number of individuals serving life without parole for crimes committed as children has been reduced by nearly 75 percent.

Fewer than 100 individuals have been resentenced to life without parole to date, which is less than 5 percent of all individuals whose sentences have been modified to date. And a number of those cases are on appeal.

Since Montgomery, close to 600 individuals have been released from prison who formerly were sentenced to life without parole as children, and that number continues to grow....

Today 22 states and the District of Columbia ban life-without-parole sentences for children, and in at least four additional states, no one is serving life without parole for a crime committed as a child.  Therefore more than half the country has rejected life-without-parole sentences for children in law or in practice....

Over 70 percent of all youth ever sentenced to life without parole are people of color — primarily Black and Latinx.

Strikingly, racial disparities in the imposition of life without parole on children continue to worsen.  The Supreme Court in Miller and Montgomery guaranteed all children an individualized sentencing hearing before life without parole can be imposed.  Yet despite the now-discretionary nature of life without parole, and the Supreme Court’s unequivocal language that the penalty may be imposed only if a child has no capacity for rehabilitation, racial disparities have increased under this new framework.

Of new cases tried since Montgomery, approximately 70 percent of children sentenced to life without parole have been Black — as compared to approximately 61 percent before Montgomery...

With little guidance from the Supreme Court in Miller and Montgomery on the specifics of the resentencing process, states have varied significantly in the procedural protections afforded.  This patchwork of interpretations raises a high risk that resentencings to life without parole will be arbitrary, based more on the jurisdiction and the idiosyncrasies of individual judges than on whether the individual is capable of positive change.

Some states — including Georgia, Louisiana, Ohio, and Michigan — have continued to sentence children to life without parole in new cases at a rate that far outpaces the rest of the country, and in contravention of the constitutional mandate established in Miller and Montgomery that the sentence be uncommon.

Approximately 1,600 of the individuals whose sentences have been modified following Montgomery will go before a parole board, and the likelihood of release through the parole process varies greatly by state.  For example, Henry Montgomery — who was deemed a model prisoner by the Supreme Court in Montgomery v. Louisiana — has been denied parole twice by the Louisiana parole board.

Rehearing petition (and guest post) in Mississippi Supreme Court case upholding 12-year prison term for mere possession of cell phone in jail

In this post earlier this month, I noted a disheartening ruling by the Mississippi Supreme Court upholding 12-year prison term for mere possession of cell phone in jail.  Will Bardwell, an attorney in the Mississippi office of the Southern Poverty Law Center, last week sent me a copy of a motion for rehearing that he helped file in the case (which can be accessed below).  I asked Will if he might want to do a guest posting to go along with my posting of the motion, and here is what he sent my way:

On its edges, sentencing law can be a bit of a technical thicket — difficult to navigate for laymen, or even for practitioners who don’t often work in that field. But at its heart, sentencing law — and the constitutional demands under which it exists – embodies our society’s sense of fairness. Above all else, sentencing demands that punishment must fit the crime.

It is not news that a consensus has developed among Americans that our criminal justice system’s priorities must be recalibrated. Nor is it news that our laws have failed to keep pace with that consensus. Unfortunately, though, the human toll of that failure does continue to make news.

In early January, the Mississippi Supreme Court added another ignominious chapter to that story when it affirmed the 12-year prison sentence of my client, Willie Nash.  In 2017, Willie was arrested for a misdemeanor in Newton County, Mississippi. The county jail’s policy is to strip-search all arrestees, but when Willie arrived, the jail violated that policy — so the cell phone that a search would have uncovered remained with Willie.  Willie never lied about the phone or made any effort to conceal it.  And guards might never have discovered the phone if Willie had not offered it up and provided the passcode to unlock it.

For this, Willie was convicted of taking a cell phone into a jail — and sentenced to an astonishing 12 years in prison.  No fewer than 36 states punish cell phone possession in a correctional facility with no more than five years in prison.  If anyone in American history has ever gotten 12 years for doing what Willie did, then my partners and I at the Southern Poverty Law Center are unaware of it. 

When Willie’s sentencing judge announced that decision, he pointed to Willie’s two prior burglary convictions some two decades earlier and explained that, if prosecutors had indicted Willie as a habitual offender, then Willie could have received 15 years — “so I want you to consider yourself fortunate,” the judge said.

It is no exaggeration to say that the Mississippi Supreme Court’s affirmance of that sentence shocked the world: the decision made headlines as far as way as New Zealand. And you don’t need a law degree to be as alarmed by the Mississippi Supreme Court’s reasoning as by its result.

Like Willie’s sentencing court, the Mississippi Supreme Court rested its decision heavily on Willie’s prior convictions. It pointed out the sentencing judge’s reliance on “evidence of Nash’s criminal history;” and it distinguished authority favorable to Willie by explaining that “Nash’s prior felony convictions subjected him to fifteen years’ imprisonment, to be served day for day, had the State charged him as a habitual offender.”

Like Willie’s sentencing judge, the Mississippi Supreme Court seems to think that Willie should consider himself lucky. But I’ve been in a room with Willie. I’ve looked into his tired eyes, heard his quiet voice, and seen how his oversized prison uniform hangs over his thin, slumping frame.

Willie doesn’t feel lucky.  And the many Mississippians that I’ve spoken to, from the widest imaginable political perspectives, don’t think Willie is lucky.

In fairness, the Mississippi Supreme Court must view Willie’s case through a different lens than most people.  For most of us, the shock to our consciences has been enough for us to know that Willie’s punishment does not fit his actions. For the Mississippi Supreme Court, though, that question has been complicated by the United States Supreme Court’s contorted precedent concerning the Eighth Amendment’s proportionality requirement.

That the Eighth Amendment requires proportionality is no longer up for debate.  Aside from its existence, though, the Court’s decisions over the past 40 years have left nearly every other detail of the proportionality requirement unsettled.  Seemingly irreconcilable decisions have been left unreconciled, and ambiguities have been left unclarified. In recent years, the Court has seemed content to keep its silence on the issue, perhaps hoping that lower courts will clarify what it has muddled.

But the outcome in lower courts has been predictably chaotic.  These unanswered questions are not merely fodder for academic debate.  There are human beings languishing in prison because of this case law jumble. Willie is one of them.

In particular, one unanswered question lies at the heart of Willie’s case: the Mississippi courts’ use of his prior convictions to justify his sentence.  Despite his two burglary convictions nearly 20 years ago, Willie was not charged as a habitual offender.  Mississippi’s courts relied on those convictions anyway -- and urged him to “consider yourself fortunate.”

But none of the United States Supreme Court’s proportionality decisions hold that prior convictions contribute to a crime’s gravity when the defendant was not charged as a recidivist.  In Ewing v. California, the Court insisted that “weighing the gravity of Ewing’s offense” required it to “place on the scales not only his current felony, but also his long history of felony recidivism.” But Ewing had been sentenced under California’s “three strikes” law. Likewise, the defendants in Rummel v. Estelle and Lockyer v. Andrade – both of whose challenges to their life sentences failed – were sentenced under habitual offender statutes.

But Willie wasn’t charged as a habitual offender. And if Mississippi courts wanted to sentence him like a habitual offender, then prosecutors should have charged him as a habitual offender.  But they didn’t.

Not surprisingly, lower courts have taken this unworked detail in different directions.  In 2016, for example, the South Dakota Supreme Court held that “[f]or purposes of challenging the constitutionality of a sentence in a noncapital case, it appears that a defendant’s criminal history is only relevant when the sentence is enhanced under recidivism statutes.”  That court is not alone in its view. Obviously, Willie’s case illustrates that the Mississippi Supreme Court has reached the opposite result; neither is it alone.

I’m hopeful that the Mississippi Supreme Court will correct the injustice of Willie’s case [based on the rehearing motion below] without the need to petition the United States Supreme Court.  Willie’s case certainly does not rely on novel legal theories; even under the proportionality requirement’s framework as unsettled as it is, Willie’s sentence is grossly disproportionate.  If, instead of taking a cell phone into jail, Willie instead had committed second-degree arson or poisoned someone in an effort to kill them, Mississippi law would have imposed a shorter sentence than the one he is serving today.  A 12-year sentence for something so much more innocuous simply doesn’t pass the straight-face test.

But even if the Mississippi Supreme Court reconsiders Willie’s case, our society’s sense of basic fairness cries out for the United States Supreme Court to begin cleaning up the mess that its predecessors have made of the proportionality doctrine.  The cost of that confusion is human lives like Willie’s.  And that cost is growing.

Download Nash v State - Motion for Rehearing (filed)

Prior related post:

• Mississippi Supreme Court upholds 12-year prison term for mere possession of cell phone in jail 

Reflecting on the meaning of "life" after Graham and Miller

Eli Hager has an extended new piece (at The Marshall Project and Slate) concerning the legal churn over the application of Miller and Graham.  The full headline of this piece highlights its themes: "What’s the Meaning of “Life” When Sentencing Kids?: The Supreme Court ended automatic life without parole for children. What replaces it remains unclear." I recommend the full piece and here are excerpts: 

How long a sentence would the judge have to hand down for it to feel essentially the same as being sent to prison for life?

States have been wrestling with this question over the past decade in the wake of multiple U.S. Supreme Court rulings that automatically sentencing juveniles to life in prison without the possibility of parole is unconstitutional, because kids have a unique ability to grow and change and therefore deserve a second chance down the road. That forced courts and legislatures to consider what number of years to hand down instead to the more than 2,000 current prisoners nationwide who were originally sentenced as juveniles to mandatory life without parole....

[Certain] states have determined that locking up a juvenile for 25 years is tantamount to a life sentence. Some have put the number at 40 years. But one Louisiana court ruled that even a 70-year sentence is not equivalent to life in prison. Another in Florida said that having a possible parole date in the year 2352—more than three centuries from now—is still less than an automatic lifetime behind bars.

“It really is a philosophical question,” said Marsha Levick, chief legal officer at the Juvenile Law Center, an advocacy group. “These are children who entered prison before having finished high school, who never got a chance to achieve maturity, to have relationships, have a family, a career. Does releasing them at 70 or 80 or 90 years old, when they are geriatric, really give them that second chance at an actual life?”...

It’s hard to estimate how many juveniles are serving long sentences equivalent to life. In most states, no agency is mandated to count how many kids are sent away until they will likely die, though youth advocates in Louisiana, for example, estimate there are more than 200 in that state’s penitentiaries alone.Pennsylvania has made perhaps the most concerted effort to get a large number of prisoners originally sentenced to automatic life without parole re-sentenced and then sent home, following the Supreme Court’s reasoning. More than 200 former juvenile lifers there have been let out in recent years, most to the Philadelphia area.

Contesting LWOP in Louisiana for selling a joint thanks to a a "quad bill" and the trial penalty

I just came across this press piece, headlined "Louisiana Supreme Court to review life sentence over $30 marijuana sale at Tulane hearing," on a notable extreme state sentencing case just argued before a state high court. The details are as troubling as headline:

The weight of marijuana in a typical joint is what Derek Harris handed an undercover agent who knocked on his door in Abbeville in 2008.  Harris, a military veteran, handed the agent .69 grams of the drug and pocketed $30 in return.  Four years later, a judge found Harris guilty of marijuana distribution, a Vermilion Parish prosecutor invoked the state’s habitual-offender law, and the judge sentenced Harris to life in prison with no chance at parole as a four-time loser.

Harris’ prior convictions dated back to 1991, 17 years before that minor pot bust, and a conviction for dealing cocaine, according to court filings. He was convicted of simple robbery in 1993 and again in 1994. Three years before the ill-fated marijuana sale, in 2005, Harris was convicted again, on a charge of theft under $500.

If the life sentence seemed to some to be excessive — though 15th Judicial District Judge Durwood Conque claimed he had no choice after prosecutors unleashed a “quad bill” on Harris — his trial attorney skipped some key legal steps to seek a lower one and keep the issue alive for an appeal [and] the Louisiana Supreme Court hear[d] oral arguments over whether it's too late for Harris to claim his lawyer botched his sentencing....

Harris’ attorneys are asking the Supreme Court to upend a 24-year-old decision in which the high court ruled that a challenge to a sentence as being excessive can’t be raised after a defendant’s direct appeals have run out. Harris’ attorneys with the New Orleans-based Promise of Justice Initiative argue that he should be allowed to go back and prove his attorney failed him, in spite of that blanket rule.

District Attorney Keith Stutes’ office argues that the Supreme Court has been clear, and that Harris’ attorneys are barking up the wrong legal tree. Conque, the trial judge, told Harris at his initial sentencing that he didn’t think a 30-year maximum sentence was warranted. Instead, he handed Harris 15 years. But after prosecutors invoked the habitual-offender law, Conque said his hands were tied....

It appears prosecutors initially offered Harris a seven-year sentence, but he wanted three years, and the offers got worse for him from there. Harris has claimed he never got the offer. Stutes' office argues that the number doesn't matter, in the end. Any number would have netted life for Harris under the habitual-offender law, and a decision on whether to invoke that is left solely to the prosecutor's discretion.

Prosecutors outside of the New Orleans area rarely wheel out the habitual-offender law to jack up a prison sentence, state data collected by the Pew Charitable Trusts show. But when they do, it is often to follow through on a pre-trial threat aimed at pushing a defendant to take a guilty plea rather than go to trial.

One of three state 3rd Circuit Court of Appeal jurists on a panel that earlier rejected Harris’ appeal offered a blistering dissent. Judge Sylvia Cooks cited Harris’ service as a veteran of Operation Desert Storm and his drug addiction while calling his life sentence “shocking to my conscience.”  The state’s high court has set a high bar in deciding when a sentence is unconstitutionally severe. It reserves those decisions for punishment that “shocks the conscience“ amounting to “nothing more than the purposeful imposition of pain and suffering grossly disproportionate to the severity of the crime.”

In one notable case, the high court refused to lower a 13-year sentence handed to Bernard Noble, a New Orleans man caught with the equivalent of a few joints of marijuana. The court found that Noble’s case wasn’t shocking enough to overrule the Legislature’s tough sentencing laws at the time. Harris’ sentence, though, means he'll die in prison.

I find it so sad that even with all the positive sentencing reform momentum in recent years, there are still so many of these extreme sentencing stories of LWOP for the most minor of marijuana offenses or, as noted here, 12 years for harmlessly having a cell phone when booked into jail. As I said before, I fear it is still way too routine for way too many judges and prosecutors to be comfortable with sending people off to live in cages for years and decades without deep reflection on just what these sentences really mean for the defendant and what they say about American as a nation. Sigh.

"Financial Hardship and the Excessive Fines Clause: Assessing the Severity of Property Forfeitures After Timbs"

The title of this post is the title of this new paper authored by Beth Colgan and Nicholas McLean now available via SSRN.  Here is its abstract:

In the wake of the Supreme Court’s decision in Timbs v. Indiana — which held that the Fourteenth Amendment incorporates against the states the Eighth Amendment’s ban on the imposition of “excessive fines” — it is likely that state and lower federal courts around the nation will be called upon to further develop Excessive Fines Clause doctrine.  The Court’s historical exegesis in its Timbs opinion, as well as aspects of existing Eighth Amendment doctrine, support an analytical framework under which courts would look to the effects of property forfeiture on individuals and their families — in particular, the infliction of financial hardship — when assessing the severity of a forfeiture in the proportionality review context.  In this Essay, we sketch the outlines of a forfeitures jurisprudence that would take into account the ways that property deprivations may restrict employment and educational access, interfere with the ability to meet basic needs (including food, shelter, and medical care), create family and social instability, and impede the ability to satisfy legal obligations.

More on the need for more robust SCOTUS criminal defense representation

I noted in this post a few weeks ago this notable new article authored by Daniel Epps and William Ortman titled "The Defender General."  Adam Liptak of the New York Times has clearly read the piece, as he has this new article discussing its proporal under the headline "A Proposal to Offset Prosecutors’ Power: The ‘Defender General’."  Here are excerpts:

Justice Elena Kagan calls it her hobbyhorse. Justice Sonia Sotomayor says it is a kind of malpractice.  Criminal defense lawyers, they say, often fail to put aside ambition and vanity when their cases reach the Supreme Court. These lawyers, the justices say, should step aside and let Supreme Court specialists handle the arguments. “Case in and case out, the category of litigant who is not getting great representation at the Supreme Court are criminal defendants,” Justice Elena Kagan said at a Justice Department event in 2014.

Studies have demonstrated that members of the elite Supreme Court bar who appear often before the justices win their cases at a substantially higher rate than novices do.  But persuading trial lawyers to cede a once-in-a-lifetime turn at the Supreme Court lectern to a fancy appellate lawyer is easier said than done.  “A lot of these cases, they’re pretty hard to win anyway. And what we see is that people are being represented by whoever the trial counsel was for a particular defendant,” Justice Kagan said in 2014. “And appellate advocacy is hard, and it takes a lot of skill and a lot of experience.”

Trial lawyers should put their clients’ interests first, Justice Sonia Sotomayor told Reuters in 2014. “I think it’s malpractice for any lawyer who thinks, ‘This is my one shot before the Supreme Court, and I have to take it,’” she said.

Making sure criminal defendants have consistently able lawyers at the Supreme Court would be a start.  But a new article published in the University of Pennsylvania Law Review by Professors Daniel Epps of Washington University in St. Louis and William Ortman of Wayne State University says more is needed.....  The problem, they say, is structural. Prosecutors can choose which cases to appeal, with an eye toward shaping the law rather than preserving every conviction.  Criminal lawyers, however skilled, must defend their individual clients.

The article, “The Defender General,” proposes the creation of a new office to counterbalance that of the solicitor general, the Justice Department official who represents the federal government in the Supreme Court. The solicitor general’s office is particularly skilled at making strategic litigation choices, and it plays a role in about three-quarters of criminal cases heard by the court.

In federal cases, the solicitor general represents the prosecution.  In state cases, it very often files briefs supporting the prosecution and is granted separate argument time to make its points.  In all, the solicitor general’s office has sided against criminal defendants more than 95 percent of the time.  The defender general’s office envisioned by the article would sometimes represent individual criminal defendants or file supporting briefs on their behalf.  More important, it would represent the interests of criminal defendants generally, even when they diverged from the interests of the particular defendant in the case....

The proposed defender general’s office is more thought experiment than realistic prospect.  But it sheds light on an authentic engine of imbalance in the criminal justice system.  The article builds on earlier work.  A 2016 article in the Minnesota Law Review by Andrew Manuel Crespo, a law professor at Harvard, proposed a partial fix. It urged the justices to appoint expert lawyers to argue as friends of the court alongside the defendants’ own lawyers. Along the same lines, Senator Cory Booker, Democrat of New Jersey, has proposed creating a Defender Office for Supreme Court Advocacy to represent criminal defendants and file supporting briefs.

Another factor may tilt the playing field against criminal defendants: Since the retirement of Justice Thurgood Marshall in 1991, the Supreme Court has not included any justices who have spent significant time working as criminal defense lawyers before ascending to the bench.

By contrast, eight of the nine members of the current court have worked in prosecutors’ offices. Six of them served in the Justice Department. Justice Clarence Thomas was an assistant attorney general of Missouri; Justice Sotomayor was an assistant district attorney in Manhattan; and Justice Brett M. Kavanaugh worked for Ken Starr, the independent counsel who investigated President Bill Clinton. The court could use some diversity in this area, Justice Sotomayor said in 2016 at Brooklyn Law School: “There is no criminal defense lawyer on the court.”

Some prior related posts:

• "The Defender General" 
• Another useful reminder of the need for more criminal justice diversity on the federal bench (from Mar 2019)
• "There hasn’t been a criminal defense lawyer on the Supreme Court in 25 years. That’s a problem." (from Mar 2016)
• Might any Prez candidate pledge to put a criminal defense attorney on the Supreme Court? (from Aug 2015)
• Noticing the biggest bias in the federal judiciary (from May 2009)
• The sad realities of SCOTUS defense advocacy (from May 2006)

"(Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People's 'Ruin'"

The title of this post is the title of this notable new piece now available via SSRN authored by Judith Resnik. Here is its abstract:

In 2019, all Justices on the U.S. Supreme Court agreed in Timbs v. Indiana that the Constitution’s prohibition on excessive fines applied to the states.  The Court’s opinion discussed the Excessive Fines Clause’s “venerable lineage” and termed its protections “fundamental.”  Justice Thomas, concurring, wrote that the English prohibition against excessive fines aimed to insulate citizens from what historians called “ruinous fines.”

This Essay puts Timbs into the context of the Court’s search for metrics to assess the legitimacy of governments’ choices about punishment.  In and after the 1960s, as convicted and incarcerated people asserted that constitutional law constrained sovereign powers, the Court repeatedly encountered challenges to punishment.  I bring together lines of cases that have sat in doctrinal silos to show the links between the concerns animating judicial limits on sentencing and judicial recognition of incarcerated people’s rights to safety, sanitation, food, medical care, access to courts, and religious observance.  I argue that this body of law, produced through convicted individuals’ insistence that they were entitled to constitutional protection, should be read to constitute a nascent anti-ruination principle that all branches of government need to implement.

Sixth Circuit panel declares one-day prison sentence (plus 10 years on supervised release) for large child porn possession substantively unreasonable

In a series of rulings in recent years, most notably United States v. Bistline, the Sixth Circuit has found sentences for child porn possession that lacked some significant prison time to be unreasonable.  Another such ruling was handed down this past on Friday in United States v. Demma, No. 18-4143 (6th Cir. Jan 24, 2020) (available here).  The 15-page panel ruling, authored by Judge Gilman, gets started this way: "This is yet another case raising the issue of whether a one-day sentence for a defendant convicted of possessing child pornography is reasonable. For the reasons set forth below, we determine that it is not."  The full opinion is worth a read, and here are some key passages:

At the sentencing hearing, the district court focused almost entirely on Demma’s individual characteristics in deciding not to impose a term of incarceration. It relied, in particular, on the testimony of Dr. Peterson and Dr. Tennenbaum, both of whom opined that Demma’s use of child pornography was directly caused by his service in the military and his resulting PTSD.

To be sure, the district court did not err by recognizing Demma’s military service and PTSD diagnosis under § 3553(a)(1) as considerations relevant to his sentence.  See United States v. Reilly, 662 F.3d 754, 760 (6th Cir. 2011) (explaining that the defendant’s military service and lack of criminal history were “permissible considerations in the ‘variance’ determination under 18 U.S.C. § 3553(a)”).  But the court in the present case gave these considerations unreasonable weight in deciding to vary downwards to an essentially noncustodial sentence....

Moreover, in focusing on the role of Demma’s military service as purportedly causing his crimes, the district court cast Demma more as the victim than the perpetrator, stating that Demma’s crimes were “the result of his voluntary service to his community and his country” and “an unintended consequence” of his decision to serve in the Army.  This court has explained, however, that “[k]nowing possession of child pornography . . . is not a crime that happens to a defendant.”  Bistline I, 665 F.3d 758, 765 (6th Cir. 2012)....

Our overall conclusion is that, based on the totality of the circumstances, the district court weighed some factors under § 3553(a) too heavily and gave insufficient weight to others in determining Demma’s sentence.  This is not to say that some other defendant possessing far fewer and less offensive images over a much shorter period of time might justify such an extreme downward variance, but that is not Demma’s case.  As this court noted in United States v. Elmore, 743 F.3d 1068 (6th Cir. 2014), a United States Sentencing Commission report states that “fully 96.6 percent of first-time child-pornography-possession convictions led to at least some prison time.” Id. at 1076 (emphasis in original).  We find no basis in the record for Demma to not become part of this overwhelming statistic.  

SCOTUS dismisses Walker ACCA case after death of petitioner (and after robust amicus efforts)

As noted in this post, back in November the Supreme Court granted cert in Walker v. United States to consider whether a criminal offense that can be committed with only a reckless mens rea can qualify as a "violent felony" under the Armed Career Criminal Act.  Even more than the average ACCA case, the Walker case caught my attention because it involved an elderly man, James Walker, who received 15 years in prison under ACCA based on his possession of 13 bullets that he had found while cleaning a house.

Though the cert grant in Walker involved ACCA statutory interpretation concerning predicate prior offenses, I have long been troubled by any application of ACCA's extreme 15-year mandatory minimum term to simple possession of a small amount of ammunition.  (Indeed, long-time readers may recall I helped file an amicus brief in the Sixth Circuit and another amicus brief in support of a cert petition in a similar case, US v. Young, a few years ago.)  After seeing the cert grant in Walker, I reached out to some law professor colleagues and we filed earlier this month this SCOTUS amicus brief in US v. Walker, and here is part of the brief's Summary of Argument:

This Court’s interpretation of the reach of the Armed Career Criminal Act (ACCA), if properly informed by constitutional principles, must avoid application to Petitioner of the ACCA’s fifteen-year mandatory minimum prison term based on his possession of thirteen bullets in violation of 18 U.S.C. § 922(g)(1).  Because mere possession of ammunition is the most passive of crimes — in fact, most States do not even criminalize this behavior and it almost never results in severe punishment — a mandatory fifteen-year prison term is arguably disproportionately harsh.  That Petitioner possessed a small amount of ammunition, that he lacked any vicious or menacing mens rea, and that his prior convictions are decades old serve as additional factors suggesting that a mandatory minimum fifteen-year federal sentence for Petitioner’s offense is constitutionally suspect under any and all jurisprudential approaches to the Eighth Amendment.

As this Court has explained, the “canon of constitutional avoidance is an interpretive tool, counseling that ambiguous statutory language be construed to avoid serious constitutional doubts.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009)....  Given extensive litigation over what predicate offenses qualify for ACCA’s enhanced penalties, there is little question that this Court confronts ambiguous statutory language in this case.  In turn, because any sound approach to the Eighth Amendment suggests serious constitutional doubts about the application of a fifteen-year mandatory sentence for “one of the most passive felonies a person could commit.”  Solem v. Helm, 463 U.S. 277, 296 (1983), the canon of constitutional avoidance provides support for the narrower interpretation of ACCA advanced by Petitioner.  Further, the absence of a modern Court application of the Eighth Amendment to a federal non-capital adult sentence suggests that this constitutional right is precisely the kind of constitutional norm that cautions judicial restraint when interpreting an ambiguous statute.

As this case highlights, broad interpretations of ACCA present a heightened risk of constitutionally questionable mandatory minimum sentences.  This Court should limit that risk by adopting the ACCA interpretation put forward by the Petitioner.

Notably, though I believe our amicus brief was the only one to raise Eighth Amendment issues, another half dozen amicus briefs were filed earlier this month supporting the petitioner.

But, sadly, petitioner's counsel filed this notice last week reporting that James Walker passed away on January 22, 2020.  In accord with its practice, the Supreme Court via this morning's order list, dismissed the writ of certiorari in this case.  I suspect that SCOTUS will before too long take up a replacement case to address the ACCA statutory issue, though I sincerely hope there are not a lot of other cases in the pipeline that also involve application of ACCA's extreme 15-year mandatory minimum term to simple possession of a small amount of ammunition.  If there are, I surely will continue to complain about this extreme sentencing provision.

Reversing state precedent, Florida Supreme Court cuts back on reach of SCOTUS Sixth Amendment capital ruling in Hurst

A little more than four years ago, the US Supreme Court declared unconstitutional Florida's death penalty procedure in Hurst v. Florida, No. 14–7505 (S. Ct. Jan. 12, 2016) (available here), and that ruling raised a host of tough questions about what Hurst meant for roughly 400 persons then on death row in Florida.  I have not been able to follow closely all the Florida state rulings seeking to apply Hurst over the last four years, but a helpful reader made sure I did not miss the latest consequential ruling from the Florida Supreme Court, Florida v. Poole, No. SC18-245 (Fla. Jan. 23, 2020) (available here), which was handed down yesterday.  This local press article, headlined "Florida Supreme Court says unanimous jury not needed for death penalty in major reversal," provides some of the details and context:

In a stunning reversal of a previous decision, the Florida Supreme Court ruled Thursday that a unanimous jury should not be required to sentence someone to death. Federal law, and every state that has the death penalty except Alabama, require unanimous juries for the death penalty, rather than a simple majority.

Florida law used to only require that a majority of the jury make a recommendation to the judge on whether to sentence a defendant to die. The judge then issues a final ruling based on that recommendation. But after a decision by the Florida Supreme Court in 2016 struck down that model in a case called Hurst v. State, the Legislature changed its law to mandate a unanimous jury.

But Thursday’s ruling opens the door for state lawmakers, if they wish, to return Florida to one of the few states that don’t require a unanimous jury to impose the death penalty. “It is no small matter for one Court to conclude that a predecessor Court has clearly erred,” the majority opinion of four justices states. But, “in this case we cannot escape the conclusion that ... our Court in Hurst v. State got it wrong.”

In the majority opinion, the justices wrote that their own court’s prior decision was made in error, because the justices at the time had misinterpreted a U.S. Supreme Court ruling that found Florida’s death sentencing process unconstitutional.

The U.S. Supreme Court’s ruling did not, in fact, mean that a jury had to unanimously sentence a person to death, they wrote. Rather, that court only said that a jury had to unanimously find that a defendant was eligible for the death penalty, because of so-called “aggravating factors,” such as if the crime was “especially heinous, atrocious, or cruel” or was committed against a child under 12. But the final decision of whether a defendant should be sentenced to die does not require unanimity, Florida’s highest court said.

What does this decision mean? For one, it means the man, Mark Anthony Poole, who brought this case to the Supreme Court after he was sentenced to death with only the majority of a jury, will once again get the death penalty, after his sentence was previously vacated. He has been convicted of first degree murder, attempted first degree murder, sexual battery, armed burglary and armed robbery.

There are 157 death row cases where the person was eligible for a new sentence under the 2016 ruling. Since then, those cases have been going through various stages of re-sentencing, according to the Washington-based Death Penalty Information Center....

In a blistering dissent, Justice Jorge Labarga said the decision by the majority will return Florida to its status as “an absolute outlier." He was the lone dissent. There are currently only five justices on Florida’s Supreme Court, because two of Gov. Ron DeSantis’ three appointments were recently promoted to federal courts.

“In the strongest possible terms, I dissent,” Labarga wrote. “Death is indeed different. When the government metes out the ultimate sanction, it must do so narrowly and in response to the most aggravated and least mitigated of murders. ... this Court has taken a giant step backward and removed a significant safeguard for the just application of the death penalty in Florida."

Labarga also noted that Florida “holds the shameful national title as the state with the most death row exonerations” — all the more reason to keep the unanimous jury safeguard in place. Twenty-nine people on death row in Florida have been exonerated since 1973, according to the Death Penalty Information Center.

Responding to Labarga’s dissent, Justice Alan Lawson wrote that this decision does not change Florida’s state law, which requires the unanimous jury. “The majority today decides constitutional questions, not political ones,” Lawson wrote. “If the Florida Legislature considers changing (the law) to eliminate the requirement for a unanimous jury recommendation before a sentence of death can be imposed, the fact that this legislative change would make Florida an ‘outlier’ will surely be considered in the ensuing political debate.”

I presume the capital defendant here, Anthony Poole, will appeal this ruling to the US Supreme Court.  Notably, SCOTUS is actively considering jury unanimity issues this term in Ramos v. Louisiana and capital sentencing procedure in McKinney v. Arizona.  So, stay tuned.