Sentencing Law and Policy

Pennsylvania Supreme Court hears constitutonal challenges to mandatory LWOP for felony murder ... not long after Colorado Supreme Court rejects similar claims

As reported in this local article, the Pennsylvania Supreme Court yesterday heard oral arguments in a case challenging the state's mandatory life without parole sentencing scheme for all defendants convicted of second degree felony murder.  Here is a snippet from the report:

The Supreme Court agreed in February to consider the appeal of former Allegheny County resident Derek Lee, who was sentenced to life in prison without parole for a 2014 murder committed by his accomplice in a robbery.  Grote said Lee’s punishment is disproportionately harsh given the lack of intent to kill inherent in the crime and argued that it does little to deter others. He urged the court to find that the punishment violates both the Pennsylvania and U.S. Constitutions....

Lee, 36, was convicted of second-degree murder, robbery, and conspiracy in the Oct. 14, 2014, shooting death of Leonard Butler in Pittsburgh. Lee and another man entered the home Butler shared with his longtime girlfriend and forced them at gunpoint into the basement.  After Butler gave Lee his watch, Lee left the basement and the other man remained. Butler’s long-term partner Tina Chapple testified that Butler lunged at the man and she heard a gunshot. Butler was struck and died from his injuries, according to court filings.

Allegheny County Assistant District Attorney Kevin McCarthy noted that the felony murder rule has been Pennsylvania law since 1794 and that the penalty has been revised from death to include the option of a life sentence and most recently to require life without parole in 1974....  “Each and every member who participates is responsible to the same degree and can be punished to the same degree,” McCarthy said.

During the arguments, the Supreme Court justices grappled with the potential impact of a ruling that life without parole is unconstitutional and whether it should be retroactive.  More than 1,100 people are serving such sentences in Pennsylvania and finding them unconstitutional could require the state’s courts to revisit each person’s case.

Interestingly, similar constitutional claims about LWOP sentencing for felony murder were considered and recently rejected by a unanimous Colorado Supreme Court in Sellers v. Colorado, 2024 CO 64 (Colo. Sept. 30, 2024) (available here).  Here is how that opnion begins:

Petitioner Wayne Tc Sellers IV asks us to consider whether a life without the possibility of parole (“LWOP”) sentence for felony murder is categorically unconstitutional or, alternatively, grossly disproportionate to the offense of felony murder following the General Assembly’s 2021 reclassification of that offense.

Based on objective indicia of societal standards and evolving standards of decency as expressed in legislative action and state practice, as well as the exercise of our independent judgment, we now conclude that an LWOP sentence for felony murder for an adult offender is not categorically unconstitutional.

We further conclude that, even assuming without deciding that felony murder is not per se grave or serious, Sellers’s offense here was, in fact, grave and serious. Thus, his LWOP sentence, although severe, does not run afoul of the Eighth Amendment or article II, section 20 of the Colorado Constitution and therefore was not grossly disproportionate.

Certain offense facts might distinguish the case in Pennsylvania from the one in Colorado, and the Pennsylvania Supreme Court has broad authority to interpret its state constitution differently than how other state courts interpret their state constitutions. But the unanimous ruling by the Justices of the Colorado SUpreme Court, who were all appointed by Democratic governors, highlights the enduring challenge adult defendants face when seeking to challenge prison terms on certain constitutional terms.  

Previewing SCOTUS's latest Glossip argument

Richard Glossip already has a significant Supreme Court ruling associated with his name; nearly a decade ago, SCOTUS considered and then rejected his Eighth Amendment challenge to Oklahoma's lethal injection protocol.  In addition, as the start of this AP article notes, Glossip has had eventful decades on death row after his conviction related to a 1997 murder-for-hire scheme: "Oklahoma has set execution dates nine times for death row inmate Richard Glossip.  The state has fed him three 'last meals.'  Glossip has even been married twice while awaiting execution."

Now, Glossip's case is coming before the Supreme Court again, and this thorough SCOTUSblog preview highlights the latest complicated chapter in an eventful capital punishment procedural.  Here is how that post starts and its framing of the key issues before SCOTUS:

Twice in the past decade the Supreme Court has blocked Oklahoma from executing Richard Glossip. Now the state has joined Glossip to argue that newly uncovered evidence shows prosecutors violated his rights at trial. But even with the Oklahoma’s rare confession of error, both the state’s highest court for criminal cases and te state’s pardon and parole board turned down Glossip’s pleas for relief. On Oct. 9, two former U.S. solicitors general -- Seth Waxman, representing Glossip, and Paul Clement, representing Oklahoma’s attorney general -- will appear before the justices, seeking to persuade them to set aside Glossip’s conviction and death sentence and order a new trial.

Oklahoma Attorney General Gentner Drummond told the court that the state is not looking for an exoneration “by fiat (or at all)” but that “justice would not be served by moving forward with a capital sentence that the State can no longer defend.”

In 1997, Barry Van Treese was bludgeoned to death with a baseball bat in the room he was staying in at his Oklahoma City motel, where Glossip worked as a manager. Another one of Van Treese’s employees, Justin Sneed, confessed to killing him while on meth. He is serving a life sentence. Glossip has maintained he had no part in the murder and is innocent over the decades he has been on death row.

The only evidence implicating Glossip in Van Treese’s death was testimony from Sneed, who worked as a handyman at the hotel. Sneed told jurors that Glossip paid him up to $10,000 to kill Van Treese. In exchange for his testimony, prosecutors promised Sneed that he would not face the death penalty....

In granting the case, the justices added a question for the parties to address: Whether the Supreme Court has the power to review the decision by the Oklahoma Court of Criminal Appeals at all, or whether it is instead barred from doing so because the decision rests on an “adequate and independent state ground.”...

The second question before the court goes to the heart of the case: Whether the justices should invalidate Glossip’s conviction and sentence because prosecutors failed to correct false testimony by Sneed and turn over evidence that might have helped to clear Glossip.

Because any grant of cert by the Justices in a case of this nature usually means more than a few are concerned about the rulings below, I suspect that both the claims of innocence and his support from Oklahoma's AG has prompted some of the more conservative members of the Court to want to take this new look at this long-running case. And yet, the more conservative member of the Court have, generally sepaking, been much more comfortable showing much more deference to state court capital procedings. It will be interesting to see which Justices at oral argument seem most troubled by Glossip's case.

A few GVRs and lots of cert denials in first full SCOTUS order list of OT 2024

The Supreme Court formally kicks off its new term, October Term 2024, with oral arguments in two cases this morning.  But its first official product of OT 2024 is this 50-page order list with more cert denials than I can count.  The order list begins with a few G(ranted), V(acated), R(emanded) cases in federal criminal matters based on Rahimi and Erlinger, and I am a bit surprised that the GVR list is not longer. 

I am not at all surprised that the cert denial list is extreme long, and I suspect there may be a few surprises therein.  Readers are encourage to comment on any cases in (or not in) the denials that catch their eye.

The only big criminal case to be argued during the first SCOTUS sitting of OT 2024 is the capital case Glossip v. Oklahoma.  I hope to round up some of the press coverage and commentary on this case in the coming days.

Making a robut case for robust legal representation for the incarcerated

Inquest has this notable new essay on a topic that I think merits a lot more attention, namely on the needs of the incarcerated for legal assistance.  The piece, authored by Jennifer Soble, is headlined "Lawyerless No More: Once a person is imprisoned, indigent defense stops. But the gravity of mass incarceration demands legal representation to the very end." I recommend the full essay, and here are some excerpts:

Some of the most vulnerable incarcerated people are denied counsel even in proceedings explicitly designed to help them because of their vulnerability. For example, although most states have a process for releasing incarcerated people who are terminally ill or disabled, almost no state provides lawyers to people who are eligible for this relief. Under these schemes, people eligible for medical release — many of whom are actively dying, or who live with paralysis, or who are experiencing severe cognitive decline — are expected to not only draft compelling legal filings, but are also expected to find their own housing and outside medical care, all from behind prison walls.... Expecting sick and dying incarcerated people to represent themselves undermines the very existence of these laws.

People who have suffered some of the most extreme harms of the criminal legal system—such as unconstitutional conviction or a sentence that is punctuated by a serious medical diagnosis—need improved access to legal assistance. But so do people who have been harmed in quieter, more common ways. Few people outside the system know that departments of corrections have enormous power to both lengthen and reduce sentences. Prison systems can award sentencing credit for participation in programs, in work assignments, and sometimes for no reason at all. Conversely, and perniciously, prison systems can take that sentencing credit away. Prison officials use this power capriciously, sometimes for significant incidents of misconduct, sometimes for technical rule violations, and sometimes for seemingly no reason at all.... Legal advocates can significantly move up an incarcerated person’s release date simply by advocating to ensure that they get the sentencing credit that they deserve, while ensuring that credit is not taken away illegally or unjustly....

For [some], the only hope of freedom [is] clemency, an act of “grace” that is usually held exclusively by state governors or, for those in the federal system, the president. Unencumbered by the burdensome rules that govern other forms of post-conviction relief, clemency has historically been a nimble vehicle to correct excessive sentences, unjust prosecutions, or criminal legal events that feel unjust years or decades after the fact. Governors and presidents used to grant clemency routinely, but it has become extremely rare since the 1950s.

However, while the use of clemency has plummeted, the number of people for whom clemency is the only possible avenue for freedom has skyrocketed. Before the 1970s, only seven states authorized life-without-parole sentences, and even those states rarely imposed them. Today every state allows life or virtual life sentences, and more than 200,000 people are currently serving these draconian prison terms. For them, clemency is the most probable path out of prison, and it is generally the only way for an incarcerated person to ask for release from prison based on their rehabilitation and personal growth.

There are many reasons that clemency applicants should have representation. Clemency is a slow process, subject to rules that feel both pointless and burdensome. Successfully navigating it often depends on receiving help from someone with experience in clemency. Still, the right to counsel does not extend to clemency, leaving most incarcerated people to pursue their only hope for freedom on their own.

Kim Kardashian advocates reconsidering Menendez brothers' LWOP sentences just as Los Angeles DA begins to do so

As reported in this new NBC News piece, "Prosecutors in California are reviewing the convictions of the Menendez brothers, who were found guilty in the 1989 killing of their parents, to determine whether they should be resentenced and potentially released, officials said Thursday." Here is more:

Los Angeles County District Attorney George Gascón said his office is also reviewing possible evidence included in petitions the brothers filed last year alleging molestation by their father.  Gascón said that the allegations are under review and that none of the information has been confirmed. A hearing is scheduled for Nov. 26....

That evaluation in the brothers' case is ongoing, he said, adding: "Until we get there, we’re not sure yet which direction this will go."

Joseph “Lyle” Menendez, now 56, and Erik Menendez, now 53, were convicted in 1996 in the shotgun murders of their parents at their Beverly Hills homes seven years before.  After two trials, they were sentenced to life in prison without parole and remain incarcerated in a California prison.

In their initial trials, the brothers said their father sexually abused them for years.  Prosecutors accused them of killing their parents to inherit a fortune.  The proceedings ended in a mistrial.  The abuse allegations were limited at their second trial. The brothers were convicted and sentenced to life without the possibility of parole....

The district attorney's announcement came amid controversy over a new Netflix series about the case, “Monsters: The Lyle and Erik Menendez Story."  In a statement released by his wife, Erik Menendez said that the series included "blatant lies" and that it was "ruinous" for his brother....

The district attorney, Gascón, is up for re-election.  He said at Thursday's news conference that more than 300 people have been resentenced during his term and that only four have gone on to commit crimes again.

Intriguingly, today Kim Kardashian also authored this "personal essay" in which she states that her "hope is that Erik and Lyle Menendez’s life sentences are reconsidered." Here is a portion of her essay:

According to Erik and Lyle, they were physically, sexually and emotionally abused by their parents since childhood, and their father repeatedly raped them when they were just little boys.  Many people believe the crimes the brothers committed are unforgivable — but what about the decades of alleged abuse they suffered as children?

I have spent time with Lyle and Erik; they are not monsters.  They are kind, intelligent, and honest men.  In prison, they both have exemplary disciplinary records.  They have earned multiple college degrees, worked as caregivers for elderly incarcerated individuals in hospice, and been mentors in college programs — committed to giving back to others.  When I visited the prison three weeks ago, one of the wardens told me he would feel comfortable having them as neighbors.  Twenty-four family members, including their parents’ siblings, have released statements fully supporting Lyle and Erik and have respectfully requested that the justice system free them.

The killings are not excusable.  I want to make that clear.  Nor is their behavior before, during or after the crime.  But we should not deny who they are today in their 50s.  The trial and punishment these brothers received were more befitting a serial killer than two individuals who endured years of sexual abuse by the very people they loved and trusted.  I don’t believe that spending their entire natural lives incarcerated was the right punishment for this complex case.  Had this crime been committed and trialed today, I believe the outcome would have been dramatically different.  I also strongly believe that they were denied a fair second trial and that the exclusion of crucial abuse evidence denied Erik and Lyle the opportunity to fully present their case, further undermining the fairness of their conviction.

Another federal ruling that aspects of Michigan's sex offender registry is unconstitutional

As detailed in this local article, in the past week a "federal judge in Detroit has ruled parts of Michigan’s Sex Offenders Registration Act are unconstitutional."  (Disclosure: I have worked with a group of law professors on amicus briefing in these matters.)  Here is more about yet another ruling finding various constitutional and other problems with Michigan’s law:

Last Friday, U.S. District Judge Mark Goldsmith ruled on a lawsuit the ACLU filed in February 2022 on behalf of several Michigan sex offenders over the state law, which was first passed in 1994 but changed in 2021. The suit named Gov. Gretchen Whitmer and then-Michigan State Police Commander Col. Joseph Gasper as defendants.

The 2022 lawsuit was the fourth time the organization challenged the state's sex offender registry in the past decade.  "This decision once again shows that Michigan’s sex offender registry is not only bloated, costly, and ineffective, but does not hold up to constitutional scrutiny and must be overhauled by state lawmakers," Miriam Aukerman, ACLU of Michigan senior staff attorney, said in a statement....

The ACLU of Michigan said when it filed its 2022 lawsuit that it was challenging the parts of the state's sex offender registry law that treat all registrants as high risks to public safety without consideration of the circumstances of their offense, the passage of time, their age, their rehabilitation, their health, or their cognitive and physical abilities.  It also said elements of the registry are being unconstitutionally applied retroactively, reporting requirements compel speech in violation of the First Amendment and that the system lacks individual risk assessment, which violates due process and equal protection.

On Monday, ACLU officials said Goldsmith agreed with them on several of its arguments in the suit, including:

∎ Retroactively extending registration terms from 25 years to life violates the Constitution;

∎ People who were not convicted of a sexual offense cannot be subjected to the law without a judicial hearing;

∎ Michigan cannot impose harsher registration requirements on people with out-of-state convictions than on people with state convictions;

∎ The law's requirements for registrants to report internet identifiers like email and social media accounts violate their First Amendment rights;

∎ Forcing registrants to attest that they understand the sex offenders registration act, even if they do not, is unconstitutional compelled speech.

The judge also ruled against the ACLU on three claims involving individualized review, opportunities to petition for removal, and reporting requirements, they said. The court also found that one claim was moot and another might require additional briefing.

More than 45,000 people are on the state's sex offender and the list is the fourth largest in the country, according to the ACLU.  Officials said under the court's decision, about 17,000 people will be removed after they complete 25 years on the registry without another registrable offense. In addition, more than 3,000 people with out-of-state convictions will be entitled to a judicial determination of their registration requirements.

They also said if the state seeks to keep about 300 people on the registry based on convictions for non-sex offenses, then a judicial hearing will be required.  Furthermore, the in-person reporting requirements will change for about 31,000 people and the internet reporting requirements will change for about 14,000 people, the group said.

The full 115-page ruling from the District Court is available at this link.

Pennsylvania Supreme Court finds legal error when sentencing court "relied upon prior arrests as a sentencing factor"

A helpful colleague made sure I did not miss an interesting new opinion from the Pennsylvania Supreme Court in Commonwealth v. Berry, No. 16 EAP 2023, J-9A-2024 (Pa. Sept. 26, 2024) (available here).  Here is how the unanimous 24-page ruling gets started:

James Berry was convicted of several crimes arising from his sexual abuse of two young family members. For purposes of tabulating the applicable recommended sentencing range under the under the Pennsylvania Sentencing Guidelines, Berry had no prior convictions or juvenile adjudications, which resulted in a “prior record score” of zero.  The sentencing court ultimately imposed a sentence that deviated significantly upward from the standard sentencing range recommended by the sentencing guidelines.  Explaining its reasons on the record, the court stated that Berry’s arrest record (which the court characterized as “previous other contacts” with the criminal legal system) essentially negated Berry’s absence of a prior criminal record.

Challenging the discretionary aspects of this sentence, Berry appealed to the Superior Court, which affirmed.  Upon allowance of appeal, we must decide whether a sentencing court lawfully may consider Berry’s record of prior arrests, which did not result either in juvenile adjudications or adult convictions, as a factor at sentencing.  Because arrests without conviction “happen[ ] to the innocent as well as the guilty,” they offer nothing probative about a defendant’s background at sentencing.  Thus, the sentencing court misapplied the law by predicating the sentence in part upon Berry’s arrest record. Accordingly, we reverse the order of the Superior Court and we remand for resentencing.

There is considerable nuance in this opinion, as the court avoided reaching the defendant's constitutional claim based in due process by ruling in his favor as a matter of state stautory law. In addition, the court also avoided addressing prosecutors' arguement that it would be proper for a sentencing judge to consider conduct underlying an arrest because the "sentencing court provided no indication on the record that, as to Berry’s arrest record, it considered anything other than the fact of prior arrests."

"Solitary Confinement, Human Dignity, and the Eighth Amendment"

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

The harms of solitary confinement have been well-documented for centuries, yet the practice persists.  Despite recent efforts to reform the use of solitary confinement in certain states and localities, over 120,000 people are currently confined in solitary conditions in American prisons and jails.  In part, America’s addiction to solitary remains incurable because the doctrine governing whether a particular punishment practice is constitutional — that is, the doctrine interpreting the Eighth Amendment’s cruel and unusual punishments clause — fails to adequately recognize the harm caused by solitary.  To be sure, modern Eighth Amendment doctrine recognizes specific deprivations attendant to solitary (i.e., deprivations of human interaction, environmental stimulation, sleep, and outdoor exercise).  But by requiring an atomization of the harm of solitary into these singular deprivations, current Eighth Amendment doctrine fails to capture the breadth, depth, and significance of the harm caused to people experiencing these deprivations in combination.  In other words, modern Eighth Amendment doctrine’s focus on singular deprivations overlooks the harm to personhood that solitary inflicts.

This Article proffers human dignity as a novel conceptual vehicle for capturing and articulating solitary’s harm to personhood.  Starting from the Supreme Court’s edict that “the basic concept underlying the Eighth Amendment is nothing less than the dignity of man,” the Article employs a construct of dignity as integrity — or wholeness — of personhood.  Using dignity-as-integrity as a conceptual vehicle to encompass the physical, psychological, and social harms of solitary, the Article provides a doctrinally and theoretically coherent construct for understanding solitary’s deprivations and the harm those deprivations inflict on personhood.  By utilizing the dignity-as-integrity construct, the Article not only provides a more coherent frame to understand the harms of solitary confinement, it also helps better understand how conceptions of dignity shape Eighth Amendment doctrine.  For if the touchstone of the Eighth Amendment is truly “nothing less than the dignity of man,” an understanding of dignity that encompasses integrity of personhood is critical to providing meaningful parameters on the State’s power to punish.

Notable example of clemency as another form of second-look sentencing in Arizona

Most modern discussions of what is often called "second-look" sentencing typically focus on the opportunities and processes for judges to reconsider on various grounds the duration of the prison sentences they previously imposed.  But there is, of course, a kind of second-look sentencing mechanism with a much longer history and a constitutional pedigree, namely executive clemency.  And this new local story from Arizona, headlined "Arizona man sentenced to 292 years for nonviolent crimes released from prison," provides a notable example of state clemency as a kind of second-look sentencing.  Here are some of the particulars:

After serving 10 years of a 292-year sentence for nonviolent offenses, an Arizona man has been released from prison. Atdom Patsalis, who was recently granted clemency and sentenced to home arrest, was greeted by family and supporters as he walked out of a community reentry building in Phoenix Thursday morning.

He said it felt surreal to finally be free. "I had absolutely accepted the fact that I would spend the rest of my life in prison," Patsalis said. "So this feels like a dream."

In 2015, Patsalis was convicted on 25 felony counts stemming from a string of residential burglaries in Bullhead City over three months in late 2013 and early 2014. He was in his early 20s at the time, homeless and struggling with drug addiction. The judge ordered all convictions to run consecutively, turning a series of lesser sentences into a life sentence.

Patsalis spent years appealing the convictions but was ultimately unsuccessful. With the help of the Arizona Justice Project, a Phoenix-based nonprofit that advocates for the innocent and wrongly convicted, Patsalis recently secured a shortening of his sentence through the clemency process.

After a final hearing earlier this month, the Arizona Board of Clemency agreed to release Patsalis to home arrest, subject to electronic monitoring....

Shawnee Ziegler, the Arizona Justice Project's director of operations, worked on Patsalis' case and credited the Arizona Board of Executive Clemency for looking at who Atdom had become, not just the person who committed the crimes. "Atdom's case was one of the worst cases of manifest injustice that we had seen in the 26-year history of our project," she said. "So being here today to watch him walk out is just a miracle."...

In four months, Patsalis will have an opportunity to go before the Clemency Board again to potentially be given general parole without any monitoring. Eventually, he could see an absolute discharge of his sentence.... "I don't think that the justice system is supposed to be about locking people up and taking people's hope away," Pastalis said. "It's about giving people the opportunity to make different choices and decisions. Giving them an opportunity to have a second chance."

Making the case that "Biden Needs to Work on His Clemency Legacy"

The quoted portion of the title of this post is the headline of this New York Times commentary authored by Rachel Barkow and Mark Osler.  I recommend the piece in full, and here are excerpts:

End-of-term clemency chaos has become an unfortunate presidential tradition, as presidents scramble after ignoring this crucial power for most of their time in office. That is how we ended up with Bill Clinton unloading 140 pardons on his last day in office, including one to the wholly undeserving Marc Rich, a fugitive financier; George W. Bush wrecking his relationship with Dick Cheney by refusing at the last minute to give a full pardon to Scooter Libby, Mr. Cheney’s chief of staff, for obstructing a federal investigation; and Donald Trump issuing pardons to undeserving cronies and celebrities.

Mr. Biden has granted 25 pardons and commuted the sentences of 131 other people, according to the most recent Justice Department data. That is a mere 1.4 percent of the petitions he has received, based on our analysis. No modern U.S. president, going back to Richard Nixon, has had a rate so low; though of course, Mr. Biden is still in office.

In addition, he has granted pardons by proclamation to people convicted of the possession and “simple use” of marijuana on federal lands and in the District of Columbia, and to about 2,000 veterans who were convicted of engaging in gay sex under a military code that outlawed the behavior for more than 60 years. (Pardons by proclamation to a class of people are not included in Justice Department data.)...

Hopefully, Mr. Biden will avoid the missteps made by some of his recent predecessors (particularly by Mr. Trump) and focus on the pending petitions filed by people who followed the rules and submitted them through official channels. If there is a petition at the White House with a positive recommendation, it should be granted without further deliberation. It has already run a gauntlet of review that included the U. S. attorney for the district where the petitioner was convicted, the U.S. Deputy Attorney General, the staff at the Domestic Policy Council and the White House counsel. Isn’t that review enough?

Recent related post from MLP&R:

• Making the case to Prez Biden with candidates for cannabis clemency

Any recommendations for Amendments needing SCOTUS attention on this Constitution Day?

In this post on this day 15 years ago, I used the occasion of Constitution Day to encourage discussion of parts or provisions of the Constitution that seem under-appreciated.  That post and its comments were amusing to review for various reasons, and I figured today might call for a variation on that theme.  Specifically, with the Supreme Court's new Term just a few weeks away, I wonder if anyone might be eager to flag some Amendments that they wish SCOTUS would give some more attention.

As I have noted before, in recent X/Twitter postings, Orin Kerr has bemused and on-going hand-wringing about the fact that the Supreme Court has now completed "three straight Terms of deciding no Fourth Amendment cases."  To make him happy and for other good reasons, I would certainly like to see SCOTUS get back to giving attention to various aspects of the Fourth Amendment's application in our modern digital age.  And, of course, regular readers know that the Fifth and Sixth Amendment issues implicated by acquitted conduct sentencing are matters that I consider long overdue for more Supreme Court attention.  The Eighth Amendment got some attention in the Grants Pass case last Term, but in a quirky setting, and I can never get enough of the Justices' explanation of the limits of the Cruel and Unusual Punishments Clause.

In a post here a few months ago, I noted Kent Scheidegger's insightful lament about the "high court’s apparent lack of interest in the constitutional criminal procedure cases that once made up a large part of its docket."  In that post, I set out my theory that some of the conservative current Justices may be fearful about where their originalist inclinations could take them in the constitutitional criminal procedure cases that used to be a mainstay of the SCOTUS docket.  The quick "evolution" from Bruen to Rahimi, as well as the continued churn in lower courts over the new originalist turn in Second Amendment jurisprudence, is a clear indication that forging new originalist jurisprudence in the criminal law arena creates considerable uncertainty (and fuels all sort of new litigation by convicted persons).  That also proved the (still on-going) story surrounding the originalist Sixth Amendment turns from Crawford and Blakely two decades ago.

With the long conference just weeks away, I hope there are all sorts of juicy constitutional criminal cases in the works for the coming SCOTUS Term.  Especially for a law professor, it is always "good for business" when various constitutional amendments get some more attention.  But perhaps folks might have thoughts in the comments about where they would like to see the Justices' focus more time and attention.

A couple older and newer prior related posts:

• Seeking input on the most under-appreciated part of the US Constitution
• Not quite original(ist) musings on SCOTUS showing little interest in constitutional criminal procedure cases 

Notable and high-profile example of second-look sentencing reduction in Colorado

Regular readers know I am a fan of second-look sentencing mechanisms, and I was thus intrigued to see this press report out of Colorado seeming to involve a notable sentence reduction in a notable high-profile state case.  Here are the details:

A judge in Adams County District Court on Friday wiped away the 5-year prison sentence being served by a former Aurora paramedic convicted in the death of Elijah McClain.  Judge Mark Warner vacated Peter Cichuniec’s prison term and converted the sentence to four years of probation, a move prosecutors previously said would “undermine the jury’s verdict” in the case.  “The court finds, really, there are unusual and extenuating circumstances and they are truly exceptional in this particular case,” Warner said during a brief hearing.

Cichuniec, 51, was convicted of criminally negligent homicide and assault by drugging in the 2019 killing of McClain, a 23-year-old Black man who died after Aurora police put him in a neck hold and a paramedic injected him with an overdose of the sedative ketamine.  Cichuniec was supervising the paramedic who injected the drug. He was the only one of the three people convicted on charges stemming from McClain’s death to be sent to prison.

Warner in March sentenced Cichuniec to five years in prison — the mandatory minimum prison time required under Colorado law for the assault conviction — but Cichuniec in June asked the judge to reduce the length of the sentence on the grounds that his case involves “unusual and exceptional” circumstances.

State law allowed Warner to reduce the mandatory minimum prison sentence after Cichuniec spent at least 119 days in prison and after the Colorado Department of Corrections assessed Cichuniec’s risk level and reported back to the judge, which both happened.

Prosecutors opposed Cichuniec’s request, writing in a court filing that lowering Cichuniec’s sentence would be against the interests of justice.  They noted that it is rare for mandatory prison sentences to be reduced under the exception in state law that Cichuniec claimed, with just 203 sentences modified under the statute between 1977 and June 2024....

As he issued his ruling, Warner commented on Cichuniec’s lack of prior criminal history, rehabilitative potential, good character and his prior “pro-social” history, as well as his overall role in the events that led to McClain’s death — Cichuniec was the highest-ranking paramedic at the scene, but was most directly responsible for “the logistics of the call and safety of others involved,” Warner said....

Warner noted as he ruled Friday that Cichuniec needed to make quick decisions that night.  “The court must also, and does today as well, look at the deterrence effect of the sentence,” Warner said.  “…For the most part, the court believes based on the issues that arose in this case, a deterrence effect has been really accomplished and there are unique circumstances to this case.”...

[Former paramedic Jeremy] Cooper and former Aurora police officer Randy Roedema were each convicted of criminally negligent homicide and sentenced to 14 months of work-release.  Two other Aurora police officers, Jason Rosenblatt and Nathan Woodyard, were acquitted by juries of all criminal charges in McClain’s death.

I do not know any of the particulars of Colorado sentencing law, but it seems the state has had a limited form of second-look sentencing in place for many decades. And yet the data reported in this article suggest that each year, on average, fewer than five sentences get modified pursuant to the applicable statute. These details are interesting in general, as is the application of the law in this case.

"Scrutinizing Sentencing"

The title of this post is the title of this notable new essay authored by Christopher Slobogin which was just posted to SSRN (and seems quite well timed right before we are to celebrate Constitution Day). Here is its abstract:

Physical liberty is the most fundamental of all constitutional rights.  Yet the Supreme Court has continued to employ rational basis review of criminal sentencing rather than ensure that prison sentences are narrowly tailored to meet a compelling state interest.  Properly scrutinized, mandatory sentencing regimes, extremely long sentences, and boilerplate parole and probation conditions would be unconstitutional.

Highligthing again highlights of federal resentencing and broader second-look sentencing issues

In this recent post, I noted Adam Liptak's latest Sidebar column discussing federal compassionate release issues in conjunction with Judge Frederic Block's new book, "A Second Chance: A Federal Judge Decides Who Deserves It."  I was pleased to see today that David Lat now has this new substack post which gives even more attention to the book and Judge Block's work under the headline "This Federal Judge Calls For Giving Prisoners A Second Chance: Judge Fred Block, 90, continues to speak out about important issues facing the criminal-justice system."  I highly recommend the full post (including the footnotes), and here are a few excerpts:

What are the requirements for granting [a sentencing reduction under the First Step Act], known as “compassionate release”? The critical one is that the judge must find “extraordinary and compelling reasons” for doing so.

And what can constitute “extraordinary and compelling reasons”? It’s currently the subject of extensive litigation in district and circuit courts — which have issued conflicting rulings on multiple issues, making it likely that the U.S. Supreme Court will intervene....

If and when the justices get involved, I have a reading recommendation for them: A Second Chance: A Federal Judge Decides Who Deserves It.  In this engaging and enlightening new book, Judge Frederic Block of the Eastern District of New York presents readers with six defendants who filed motions for compassionate release in his court.  He asks us to reflect on whether we would reduce their sentences—then reveals how he ultimately ruled....

But as discussed in A Second Chance, and as Judge Block mentioned again when we spoke, federal prisoners constitute only about 10 percent of the total prison population in the United States.  The remaining 90 percent are in state prisons and local jails.  Judge Block believes that they too should be eligible for compassionate release — and describes his book as “my clarion call to all the states to follow Congress’s lead and enact their own First Step acts.”

The recommendation that all states create second-look sentencing mechanisms is, in my view, very well founded.  And I have been pleased to see various discussions of such a possibility in a few recent media pieces:

From Michigan, "Michigan Coalition Calls for Second Look Legislation to Alleviate Staffing Shortages in State Prisons"

From Nevada, "Committee to sponsor ‘second look’ bill that allows for reduction of lengthy prison sentences"

From New York, "After 17 Years in Prison, I’m a Different Person. Do Cases Like Mine Deserve a Second Look?"

"In the wake of Miller and Montgomery: A national view of people sentenced to juvenile life without parole"

The title of this post is the title of this new paper from multiple authors recently published in the Journal of Criminal Justice. Here is its abstract:

Objective

The movement to end mass incarceration has largely concentrated on people serving shorter sentences for non-violent offenses.  There has been less consideration for the 1 in 7 people in prison serving life sentences, overwhelmingly for violent offenses, including those serving juvenile life without parole (JLWOP).  Recent U.S. Supreme Court decisions result in a pressing need for data on second chance considerations for JLWOP.  This study tracks outcomes of the national population of juvenile lifers.

Data/methods

We cross-reference data to identify the JLWOP population at the time of Miller (N = 2904) to build a demographic profile and track resentencing, release, and mortality statuses. Statistics and data visualization are used to establish national and state-level baselines.

Results

Findings reveal more than 2500 individuals have been resentenced and more than 1000 have been released.  There is notable state variation in the number of JLWOP sentences, the extent to which JLWOP is still allowed, sentence review mechanisms, and percentage of juvenile lifers released.

Conclusions/implications

The present study provides an important foundation for subsequent work to examine equity in the implementation of Miller and Montgomery within and across states, and to study reentry of an aging population that has spent critical life stages behind bars.

"Fines, Forfeitures, and Federalism"

The title of this post is the title of this recent article I just came across via SSRN and authored by Jessica Asbridge. Here is its abstract:

Fines are ubiquitous in modern society, and they are imposed for both serious crimes and minor civil wrongs.  The U.S. Supreme Court recently recognized that the Constitution’s Excessive Fines Clause applies to the states, but that decision raises previously unexplored questions as to how to enforce the Clause’s protections in the states.  A key question is what role, if any, federalism should play in crafting doctrinal rules that apply the Clause’s protections to state and local fines and related property forfeitures.  This Article is the first to accord in-depth treatment to that important question.

The extent to which federalism principles should apply does not have an immediate and obvious answer.  On the one hand, federalism plays a significant role in the Court’s jurisprudence on the Cruel and Unusual Punishment Clause.  The Court therefore generally takes a highly deferential approach in reviewing sentences of imprisonment.  Lower courts have applied that same deferential review in the context of the Excessive Fines Clause.  On the other hand, fines and forfeitures are unlike other forms of punishment — such as prison — because they are often used as a revenue source for state and local governments, creating a conflict of interest for state and local decision-making bodies.

To address this conundrum, this Article makes the novel argument that the Court should look to the exactions doctrine under the Takings Clause, which often implicates similar concerns of government self-interest and overreaching. Exactions and excessive fines are conceptually similar, but scholars thus far have overlooked the close relationship between them.  The exactions doctrine gives minimal weight to federalism concerns, and it applies a heightened-scrutiny standard that is well suited to the excessive fines context.  Indeed, differences between federal practice and state and local practices as to fines suggest that discretionary state and local fines should be subject to closer constitutional scrutiny than federal fines.  As a recent example illustrates, such heightened scrutiny would ensure that the Excessive Fines Clause is not merely a parchment barrier, while still accounting for variations between states and localities in terms of their communities’ values and needs.

Spotlighting new book that spotlights First Step Act compassionate release and sentence reconsideration

I was pleased to see that Adam Liptak today committed his Sidebar column in the New York Times to federal compassionate release issues in conjunction with US District Judge Frederic Block's new book  on the topic, "A Second Chance: A Federal Judge Decides Who Deserves It."  I recommend both the full NYTimes article and the full book.  The subtitle of the article serves as a kind of summary of both: "In a new book, Judge Frederic Block, who has served for decades, urged courts to vindicate the promise of the First Step Act, which lets prisoners ask for compassionate release from their sentences."  And here are excerpts from the article:

Judge Frederic Block is 90, and he has had decades to consider what counts as his gravest responsibility. “Look,” he said over the phone the other day, “the most important part of the job of a district court judge is sentencing.”...

Still, sometimes a sentence that made sense when it was imposed can look like a bad fit over time. Prisoners grow old or get sick.  The laws under which they were sentenced change.  Others who committed the same crimes get starkly different prison terms. Doubts arise about guilt.  On occasion, everyone agrees that the prisoner has been thoroughly rehabilitated.

In a timely book to be published next week, Judge Block makes a vigorous case for giving judges wide discretion to revisit sentencing decisions, describing cases he has encountered and urging states to adopt a more lenient approach.

The book, “A Second Chance: A Federal Judge Decides Who Deserves It,” arrives as federal courts are deeply divided on the question, one prompted by an extraordinary 2018 law, the First Step Act.  The law, enacted by enormous bipartisan margins and with President Donald J. Trump’s backing, overhauled federal sentencing.  A major feature of the law lets prisoners file motions for compassionate release in “extraordinary and compelling” circumstances.

“The First Step Act just really changed the sentencing landscape in the United States, because we are getting these motions every week,” said Judge Block, who was appointed by President Bill Clinton.  “As I speak right now, I probably have two new ones today,” he said. “Understandably, the district court bench will be inundated with them.  Because if you’re in jail and you have the opportunity to make an application asking the district court judge to reduce your sentence, you want to do it.”

But what counts as “extraordinary and compelling” is deeply contested.

"Terminating Supervision Early"

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

Community supervision is a major form of criminal punishment and a major driver of mass incarceration.  Over 3.5 million people in the United States are serving terms of probation, parole, or supervised release, and revocations account for nearly half of all prison admissions.  Although supervision is intended to prevent crime and promote reentry, it can also interfere with the defendant’s reintegration by imposing onerous restrictions as well as punishment for non-criminal technical violations.  Probation officers also carry heavy caseloads, which forces them to spend more time on enforcing conditions and less on providing support.

Fortunately, the criminal justice system also includes a mechanism to solve these problems: early termination of community supervision.  From the beginning, the law has always provided a way for the government to cut short a defendant’s term of supervision if they could demonstrate that they had reformed themselves.  Recently, judges, correctional officials, and activists have called to increase rates of early termination in order to save resources, ease the reentry process, and encourage rehabilitation.  Yet despite all this attention from the field, there are no law-review articles on terminating supervision early.

In this Article, I provide the first comprehensive analysis of early termination of community supervision.  First, I recount the long history of early termination, from the invention of probation and parole in the 1800s to the Safer Supervision Act of 2023.  Next, I identify and critique recent legal changes that have made it harder for federal criminal defendants to win early termination of supervised release.  Finally, I propose the first empirically based sentencing guideline on terminating supervision early, which I recommend in most cases after 18 to 36 months.  If community supervision drives mass incarceration, then early termination offers a potential tool for criminal justice reform.

Eleventh Circuit panel finds Excessive Fines Clause applies to FBAR penalties

A helpful reader made sure I did not miss a lengthy new ruling from the Eleventh Circuit late last week in US v. Schwarzbaum, No. 22-14058 (11th Cir. Aug. 30, 2024) (available here).  Here are excerpts from the start of the 50+ page opinion:

Isac Schwarzbaum is a wealthy naturalized citizen of the United States.  He was born in Germany and holds significant wealth in numerous bank accounts in Switzerland and Costa Rica.  The U.S. tax regime required Schwarzbaum to report any foreign bank accounts to the Internal Revenue Service (the “IRS”) using a form known as the FBAR.  Although Schwarzbaum had read the FBAR filing instructions and engaged accountants to assist with his filings, he failed to report his foreign bank accounts to the IRS for years 2007–2009....

This case presents essentially two categories of questions.  The first set are procedural questions asking whether the district court can enforce the IRS’s recalculated penalties.  These questions are easily answered: (1) the United States, as plaintiff in a civil case, has the discretion to seek a lower penalty amount than the IRS assessed; (2) the Eleventh Circuit in Schwarzbaum I already disposed of and rejected Schwarzbaum’s statute-of-limitations argument; and (3) the district court did not err by retaining jurisdiction during a remand to the IRS that was, in essence, an interlocutory order.

More difficult is the fundamental question of whether FBAR penalties are fines within the meaning of the Eighth Amendment’s Excessive Fines Clause.  This is a matter of first impression for this Court.  The only other circuit court to have addressed the question, the First Circuit, recently held that the Eighth Amendment’s Excessive Fines Clause does not apply to FBAR penalties.

After careful consideration of the historical development of the Excessive Fines Clause and the FBAR’s text, structure, and history, we decline to follow the First Circuit.  Rather, we hold that FBAR penalties are in substantial measure punitive in nature.  Therefore, under controlling Supreme Court precedent, they are subject to review under the Eighth Amendment’s Excessive Fines Clause.  And in this case, examining the penalties assessed against Schwarzbaum account by account as we must, we identify $100,000 in penalties levied against one account in each of the years 2007–2009, for a total of $300,000, that are grossly disproportionate to the offense of concealing that account, and are therefore in violation of the Excessive Fines Clause.  We also hold, however, that the other penalties levied against the remaining accounts did not violate the Excessive Fines Clause because the penalties assessed against them were not grossly disproportionate to Schwarzbaum’s willful concealment of tens of millions of dollars in overseas accounts.

"Presidential pardons: Which ones do Americans approve of?"

The title of this post is the title of this interesting new YouGov entry discussing its latest polling regarding various all sorts of aspects of the use and reach of the federal clemency power.  There are a number of notable and interesting findings discussed throughout the piece, and here is its introductory overview at the start:

As the 50th anniversary of Gerald Ford’s controversial pardon of Richard Nixon approaches, new polling reveals that public support for the pardon has increased over time, though slightly more still disapprove of it than approve. Americans are divided over many specific pardons, largely corresponding to whether their party and the party of the president who issued it are aligned. While some of the most recent pardons — such as those granted by President Joe Biden for marijuana possession — receive broad approval, others, particularly those issued by former President Donald Trump to his allies, are viewed far less favorably.

Roughly half of Americans approve of presidents having the power to pardon federal crimes, but majorities think it would be inappropriate for presidents to pardon themselves, family members, or donors. Many support putting limits on the president's pardon power, including by making public the reasons behind pardons, prohibiting self-pardons, and limiting pardons during an election year.

"An Act of Regression: Louisiana takes a giant step backward in parole and sentencing reform"

The title of this post is the title of this new briefing from Prison Policy Initiative authored by Emmett Sanders. The subtitle of the discussion highlights its main themes: "Louisiana lawmakers are eliminating discretionary parole and implementing regressive truth-in-sentencing laws. These billion-dollar 'zombie policies' are set to double the prison population in a state that is already a world leader in incarceration and will harm public safety." Here is how the briefing gets started (with links from the original):

With the passage of HB 9, Louisiana recently became the 17th state since 1976 — and the first in nearly a quarter of a century — to eliminate discretionary parole as a pathway for releasing people from its prisons.  Simultaneously, the state began implementing HB 10, one of the harshest truth-in-sentencing laws in the country.  These were among a host of other so-called “tough on crime” bills that were signed by Louisiana’s new governor, and will affect nearly everyone sentenced in the state after August 1, 2024.  Together, this package of regressive bills will set prison and sentencing reform back decades in the state: although lawmakers have framed them as “public safety” measures, these laws will have the opposite effect, doubling the prison population, compelling billions of dollars in new prison construction, and drastically escalating violence and trauma for incarcerated people and prison staff in the state.

"Legislatures and Localized Resentencing"

The title of this post is the title of this new paper available via SSRN authored by Ronald Wright and Kay Levine.  Here is its abstract:

Recent legislation, exemplified in statutes from California and Washington, creates new methods for resentencing defendants in old cases.  These laws place controlling authority for resentencing in the hands of local officials, especially local prosecutors, and invite variation at the county level.

While some new procedural channels for reducing the sentences of people convicted of past crimes are mandatory, in that they entitle certain defendants to resentencing if they were convicted of certain crimes or were subject to certain penalty enhancements that are no longer valid, other statutes create discretionary resentencing channels.  In the discretionary channels, the chief local prosecutor has the authority both to decide whether to participate in the program and to select individual cases for review.  Through original interviews and review of publicly available data, we highlight how this practice is working in California and Washington State.  We observe that when local prosecutors exercise their discretion under the new statute, they necessarily produce uneven results around the state, as some counties embrace resentencing practices, some use their power sparingly, and others leave it untouched.

This local variation is fully consistent with the legislative design.  In effect, these statutes grant to local officials certain powers previously associated with parole boards, but the practices are not synonymous with parole.  The statutory design also opens up a gridlocked political process; this grant of authority empowers the state’s most change-oriented prosecutors to act while more cautious prosecutors wait and see.

Notable battle over death row defendant's innocence claim in Missouri

The New York Times has this new piece, headlined "Prosecutors to Face Off Over Innocence Claim by Prisoner on Death Row," reporting on the people behind a notable legal fight surrounding a defendant scheduled to be executed by the state of Missouri next month.  Here is how it starts:

A man facing execution in Missouri next month will be in court on Wednesday for what could be his last chance to prove his innocence.

The guilt of the man, Marcellus Williams, has been challenged for years, and he has come close to execution twice. But the hearing on Wednesday in St. Louis County will be the first time that a court will consider DNA evidence that could exonerate him.

The case is notable because it has put two law enforcement officials, the local prosecutor and the state attorney general, on opposite sides. The prosecutor, Wesley Bell, supports Mr. Williams’s bid for exoneration and has filed a 63-page motion to overturn his conviction. The attorney general, Andrew Bailey, has argued that Wednesday’s hearing should not even take place.

Mr. Bell, a Democrat, recently defeated U.S. Representative Cori Bush in the Democratic primary for her House seat in a heavily Democratic district, so he will very likely be heading to Congress in January. Mr. Bailey, a Republican who was appointed to his office midterm to fill a vacancy, fended off a primary challenge this month and is also likely to win the general election in the deeply red state.

In his short time in office, Mr. Bailey has opposed three wrongful-conviction claims, going so far as to try to keep people in prison after they have been exonerated. In the Williams case, he has asked both the trial court and the State Supreme Court to block the hearing.

UPDATE: Thanks to a helpful commentor, I see there is new breaking news in this case: "Missouri death row inmate agrees to new plea in deal that calls for life without parole." The latest:

A Missouri death row inmate on Wednesday dropped his innocence claim and entered a new no-contest plea in an agreement that calls for a revised sentence of life in prison without parole.

But the Missouri Attorney General’s Office opposes the new consent judgment and will appeal in an effort to move ahead with the scheduled Sept. 24 execution of Marcellus Williams.

ANOTHER UPDATE: Via CBS/AP, "Missouri Supreme Court blocks agreement that would have halted execution of death row inmate Marcellus Williams"

US Sentencing Commission releases updated "Compassionate Release" data report

I flagged in this recent post the US Sentencing Commission's latest release of new sets of its terrific "Quick Facts" publications with updates drawing on the USSC's full fiscal year 2023 data. But I did not want to forget that the USSC also now has available on this data page its latest "Compassionate Release" data report. Specifically, the USSC describes its "FY 2024 Third Quarterly Report (Published August 15, 2024)" this way:

This report provides an analysis of the compassionate release motions filed with the courts and decided through the third quarter of fiscal year 2024. Table 1 and Figure 1, combine this data with data on compassionate release motions from prior fiscal years to facilitate trend analyses. The data in this report is limited to motions for which the Commission received or obtained court documentation and completed its analysis by August 9, 2024.

Table 1 of this data report reinforces my sense that a rough steady pattern now emerged in recent years for sentence reduction motions in federal courts, with each month a few hundred motions being resolved and a few dozen being granted.

Over at the Sentencing Matters Substack, a few of us have been writing about second-look sentencing more generally.  Here are a couple of the most recent posts in this arena:

"Bryan Stevenson, Second Looks, and Lasting Reverberations"

"Should Second Look Efforts Focus Particularly on Drug Offense Sentences?" 

"State Legislatures and the Uptake Puzzle in Expungement of Criminal Records"

The title of this post is the title of this recent paper available via SSRN and authored by Jessica Steinberg and Elenore Wade. Here is its abstract:

Expungement has an uptake problem.  A recent explosion of state-level rights allows people with felony convictions to expunge their criminal record, but only 1 to 6 percent of eligible people avail themselves of the remedy.  Expungement is a powerful policy tool that promotes social and economic reintegration.  It also serves a dignitary purpose, allowing people with criminal records to unshackle themselves from past mistakes.  One might assume people would rush to court to clear their records.  That the opposite is occurring — and new laws are idling on the books —suggests that rights-creation in this space has not been efficacious.  This demands a hard look at the mechanics of expungement to ferret out possible reasons for the stagnation of the most sprawling and ambitious policy attempt in recent history to address the collateral consequences of mass criminalization.

This article tackles the uptake puzzle in expungement of criminal records.  Employing an access-to-justice framework and drawing from the literature on administrative burden, the article presents findings from a study that identifies uptake barriers embedded in the workings of formal law and institutions.  We systematically analyzed the law and procedure governing expungement of felony convictions in all thirty-two states that allow for it.  We then developed six metrics to study, all within the control of the formal institutions responsible for creating or administering expungement policy.  These metrics investigated access to the expungement remedy in light of the unique legal regime in each state and allowed us to create a state-by-state comparison of whether and to what extent courts and legislatures developed the conditions necessary for a person seeking felony expungement to complete the process successfully.  Our study uncovered access barriers to expungement uptake across three domains: informational, procedural, and financial.  These barriers reflect governmental decisions to shift uptake burdens to ordinary people and enshrine those burdens in formal law.  The article provides rich qualitative analysis of these access barriers as one way to account for the uptake puzzle.  With these findings, we elevate access challenges as both central to the efficacy of expungement policy and as eminently avoidable.

In addition, the article offers two broad implications from our research that point the road forward on reform.  First, we find that legislatures play a surprisingly dominant role in restricting access to the expungement remedy.  By probing the under explored role of legislatures, we surface a more complex treatment of how access barriers are layered across institutions to keep the expungement remedy out of reach.  Second, we suggest that each state has developed a de facto “access policy” that serves an adjunctive role to substantive expungement policy. Without exception, these access policies are haphazard in their expression and work at cross-purposes with the stated goals of expungement.  We call on legislatures to leverage their substantial convening power to study the real-world circumstances of expungement applicants.  We also call on states to draw on the pluralistic access landscape we depict in this Article to turn toward access-promoting choices that increase uptake.

Notable Sixth Circuit panel habeas opion reversing Ohio death sentence in part "due to the trial court judge’s bias and misconduct"

A helpful reader made sure I did not miss the notable panel opinion issued by the Sixth Circuit earlier this week in Jackson v. Cool, No. 21-3207 (6th Cir. Aug. 8, 2024) (available here). The start of the unanimous opinion will highlight why it seems notable:

The Great Writ of Habeas Corpus is an extraordinary remedy that “guard[s] against extreme malfunctions in the state criminal justice systems.” Harrington v. Richter, 562 U.S. 86, 102 (2011) (internal quotation marks omitted).  This case is the epitome of such an extreme judicial malfunction.

Petitioner Nathaniel Jackson was convicted of a capital offense and sentenced to death.  But Jackson’s sentencing proceeding was blatantly unconstitutional at its core due to the trialcourt judge’s bias and misconduct, as well as his exclusion at sentencing of relevant mitigating evidence.  The prejudicial judicial bias and misconduct included numerous ex parte communications between the judge and prosecutor regarding substantive sentencing issues and the ghost writing by the prosecutor of the judge’s opinion sentencing Jackson to death.  In state court, when this unethical conduct came to light, the Ohio appellate courts publicly reprimanded the trial judge and ordered him to conduct new sentencing proceedings: the judge was to “personally review and evaluate the appropriateness of the death penalty” and “prepare an entirely new sentencing entry.”

On remand, Jackson moved to present three additional volumes of mitigating evidence.  The trial judge denied the motion, and he orally resentenced Jackson based on the stale, ten-yearold mitigation record.  A few hours after the resentencing hearing concluded, the judge issued a second opinion sentencing Jackson to death that was functionally identical to the original, corrupted opinion and contrary to the Ohio Court of Appeals’ specific instructions on remand. Nevertheless, the Ohio appellate courts affirmed Jackson’s sentence.  Jackson then filed a petition for a writ of habeas corpus in federal district court.  The district court granted Jackson’s petition on his claim that he was unconstitutionally denied the opportunity to present relevant mitigating evidence at his resentencing proceedings, but it denied Jackson’s other claims, including that the trial judge was unconstitutionally biased.  The warden appeals the district court’s habeas grant, and Jackson cross appeals regarding his judicial-bias and ineffective-assistance-of-counsel claims.

We affirm the district court in part and reverse in part.  We first hold that Ohio’s standard for assessing the potential for judicial bias is contrary to clearly established federal law as defined by the Supreme Court. And on de novo review, Jackson has demonstrated that the trial judge was unconstitutionally biased.  Second, the Supreme Court has clearly established that when a trial court is determining whether to impose the death penalty, capital defendants have a right to present any and all relevant mitigating evidence supporting a sentence less than death, including at resentencing proceedings, and Ohio’s failure to provide Jackson that right violated the Eighth Amendment.  Therefore, we affirm the district court’s issuance of a writ of habeas corpus on Jackson’s mitigating-evidence claim, reverse the district court’s denial of Jackson’s habeas petition on his judicial-bias claim, and remand for further proceedings consistent with this opinion.

Intriguing action, but no formal vote, from US Sentencing Commission on retroactivity of 2024 guideline amendments

As noted in this post yesterday, this afternoon the US Sentencing Commission had a scheduled public meeting, and the big official agenda items were "Possible Vote on Final 2024–2025 Policy Priorities" and "Possible Vote on Retroactivity of Certain 2024 Amendments." And, as noted in this post from earlier today, the Commission did vote, and voted unanimously, for this official set of new policy priorities.  But, interestingly, the Commission did not vote on the issue of retroactivity of certain 2024 amendments.

When reaching the retroactivity issue in the agenda (starting at around the 13:45 minute mark of the meeting recording here), the matter failed "for lack of a motion."  The Commission Chair subsequently explained that "many have called for the Commission to identify clear principles that will guide its approach to retroactivity" and that, "after deep deliberation," the Commission decided to heed those calls and apparently defer any vote on retroactivity. 

Notably, my colleague at the Sentencing Matters Substack, Jonathan Wroblewski, wrote this thoughtful post on this topic titled "Is it Time for the U.S. Sentencing Commission to Issue a Detailed, Written, and Reasoned Opinion on When it Applies Guideline Amendments Retroactively?".   I surmise that the Commission has decided that it is time for a new approach to its retroactivity decision-making, but it is not yet clear just what that now means either for retroactivity decisions generally or for the retroactivity of certain 2024 amendments.  Stay tuned.

Prior recent related posts:

• US Sentencing Commission sets out broad, general request concerning proposed priorities for 2024 to 2025 amendment cycle
• US Sentencing Commission releases over 1200 pages of public comment on proposed priorities
• US Sentencing Commission ... conducting "Public Hearing on Retroactivity" for its proposed 2024 guideline amendments
• US Sentencing Commission votes to adopt priorities that "reflect calls to simplify sentencing, reduce the costs of unnecessary incarceration, and promote public safety"

Second Circuit panel finds unreasonable 10-year prison sentence for federal prison guard who repeatedly raped inmate

I missed while on the road the notable Second Circuit panel ruling last week in US v. Martinez, No. 22-902-cr (2d Cir. July 30, 3034) (available here).  Though I do not keep up with all reasonableness rulings in circuit courts, I still believe it remains rare for federal circuits to find sentences unreasonable on appeal.  But Martinez is a case that lead to finding of both prosecural and substantive unreasonableness, and here is how the lengthy panel opinion starts:

Defendant-Appellant-Cross-Appellee Carlos Martinez, a former federal prison guard, was convicted after two jury trials in the United States District Court for the Eastern District of New York (Edward R. Korman, District Judge) of a number of charges stemming from his repeated rape of an inmate, whom the parties refer to as “Maria,” at the Metropolitan Detention Center (“MDC”) in Brooklyn, New York.  At both trials, Maria testified that Martinez raped her on five occasions while she was assigned to clean his office on weekends when that area was largely deserted. She testified that Martinez repeatedly sexually assaulted her by force (by physically holding her down) and threats and fear (by, for example, threatening to send her to a special housing unit (“SHU”) and warning her that fighting back would result in charges for assaulting an officer).

The jury at Martinez’s first trial found him guilty of five counts of sexual abuse of a ward, in violation of 18 U.S.C. § 2243(b) — one count for each rape. It also found him guilty of a number of other counts which were later vacated for reasons that are not at issue in the present appeal. At a second trial, Martinez was retried on fifteen counts arising out of the five rapes.  As to each rape, Martinez was charged with sexual abuse by threats or fear in violation of 18 U.S.C. § 2242(1); depriving Maria of her civil rights in violation of 18 U.S.C. § 242; and aggravated sexual abuse in violation of 18 U.S.C. § 2241(a)(1).  The jury convicted Martinez of five counts of sexual abuse by threats or fear, 18 U.S.C. § 2242(1).  The jury also convicted Martinez of depriving Maria of her civil rights, 18 U.S.C. § 242, and of aggravated sexual abuse, 18 U.S.C. § 2241(a)(1), but only as to the second of the five charged rapes; it acquitted him on those counts as to the other four incidents.

At sentencing, the district court expressed doubts about Maria’s testimony and later explained in its written statement of reasons that it disagreed with the second jury’s guilty verdicts on the five counts of sexual abuse through threats or fear — despite having previously denied Martinez’s motions for acquittal. The court also made several remarks suggesting that the second jury had not credited Maria’s testimony, even though the jury had returned guilty verdicts on at least one count relating to each of the five charged rapes.  It additionally described Martinez as “not a violent criminal,” Gov’t App’x 226, even though the jury had found beyond a reasonable doubt that, on one occasion, he had forcibly raped Maria.  At bottom, the court appeared to believe Martinez’s defense that he and Maria had engaged in consensual sex, a version of events necessarily foreclosed by the guilty verdicts.  The district court ultimately imposed a prison sentence of ten years, a dramatic variance below the advisory Guidelines range of life imprisonment.

Martinez now challenges the sufficiency of the evidence underlying his two convictions premised on using force to commit the second charged rape. We reject the insufficiency claim, because the jury was entitled to credit Maria’s testimony that Martinez physically restrained her to carry out that particular instance of sexual abuse. Martinez argues that his acquittals on some counts reveal that the jury must have completely rejected the victim’s testimony, but it is well established that a defendant cannot rely on inconsistent verdicts to impugn a conviction, and, in any event, the jury’s guilty verdicts decisively refute any contention that the jury entirely rejected that testimony.

The government cross-appeals Martinez’s ten-year sentence as procedurally and substantively unreasonable. We agree. The district court committed a number of procedural errors: It relied on certain 6 clearly erroneous factual findings that were foreclosed by the jury’s guilty verdicts, or that it mistakenly believed were dictated by the jury’s acquittals on other counts. It mistakenly treated Martinez’s convictions for committing sexual abuse through threats or fear as legally equivalent to committing sexual abuse of a ward, despite the fact that the former offense, unlike the latter, requires the sexual contact to have been without the victim’s consent. And it failed to effectively sentence him based on all of his convictions. The sentence was also substantively unreasonable because the district court gave dramatically insufficient weight to the seriousness of the full range of Martinez’s offenses, and impermissibly gave weight to its residual doubts about the jury’s guilty verdicts as a mitigating factor. We therefore AFFIRM the judgment of conviction and REMAND for resentencing consistent with this opinion.

Minnesota Gov Tim Walz, the veep pick by Prez candidate Harris, has his own notable criminal justice history

Multiple media outlets are now reporting that VP and Prez candidate Kamala Harris has chosen Minnesota Governor Tim Walz as her running mate.  I noted in this post last month that VP Harris was a distinctive nominee given her  extensive criminal justice experiences in California.  And, in his role as Governor of the North Star State, Tim Walz also has some notable criminal justice history. 

Of course, political science folks assert VP picks have very little or no impact on electorial outcomes.  But I am always inclined to believe that a VP can prove meaningful and perhaps even consequential on various policy fronts. Consequently, I think Gov Walz's criminal justice history is worth a brief note on the day of his selection (and maybe more in the future).

For starters, here are a few prior posts from this blog discussing sentencing reform enacted in Minnesota that were signed into law by Gov Walz:

• New Minnesota law provides for prison alternatives for veterans involved in lower-level offenses (from 2021)
• Minnesota through new legislation becomes 28th state to prohibit juve LWOP (from 2023)
• Spotlighting the development of prosecutor-led resentencing movement (from 2023)

In addition, from my other blog, "Minnesota poised to become 23rd state to legalize marijuana for adult use" (from 2023).

My understanding is that these posts discuss only a portion of the criminal justuce reforms that have become law in the North Star State in recent years.  Moreover, I suspect that Gov Walz's role as a member of the Minnesota Board of Pardons may be the activity that has most shaped his views on criminal justice issues.  This lengthy article from the New York Times about the Board's work, which I flagged in this prior post, has lots of notable passages, including these:

But formal forgiveness in Minnesota comes only through the pardon board and its de facto chairman, Gov. Tim Walz, 59, a retired high school teacher and former congressman. When he took office in 2019, his knowledge of his newfound pardon power came mostly from movies. “Theoretically, I understood,” he said. “Operationally, no idea.” Now, with eight rounds of pardon hearings behind him and two days of hearings before him, the governor better understood the heartwarming, heartbreaking realities of this power of his....

Hours later, his pardon work done, the governor would return to his office in the landmark State Capitol, where everything down to the gold-rimmed coaster beneath his can of Diet Mountain Dew underscored his role as the quasi-sovereign of Minnesota. Just as Jim Lorge, former meth dealer, had represented seekers of mercy through the ages, so, too, did Tim Walz stand for those empowered over the millennia to dispense it.

Sitting at a long mahogany table, the governor would recount certain moments from the last two days, moments of joy and of pain. He and his two board colleagues had granted 17 pardon requests, denied three others and left the three other imprisoned supplicants with some measure of relief. They had granted mercy and withheld mercy.

After Lymon, what might be next major Michigan state constitutional ruling limiting severe punishments?

I blogged here last week on the intriguing divided Michigan Supreme Court ruling in Michigan v. Lymon, No. 164685 (Mich. July 29, 2024) (available here), which held that Michigan's state constitution precluded putting people convicted of non-sexual crimes on the state's sex-offender registry.  The Behind the Bench Newsletter features that ruling in this new posting, titled "Will The Michigan Supreme Court Ban Death By Incarceration?", which merits reading in full.  Prompting the question in the title of this post, the entry noted that there are now "at least seven cases pending" on the Michigan Supreme Court's docket "that raise claims under the 'cruel or unusual' clause" in the Michigan consituttion.  Here is an extended excerpt (with links from the original):

In another win for state constitutional rights, the Michigan Supreme Court last week held that requiring someone without any sex-related convictions to register as a sex offender — something that, remarkably, most states do to some extent —violates the state’s ban on “cruel or unusual” punishment.  Central to the ruling were both the text of Michigan’s antipunishment clause — which, with its disjunctive formulation, is broader than the federal 8th Amendment’s “cruel and unusual” prohibition — and the state’s tradition of prioritizing rehabilitation as the primary goal of criminal sentencing....

The ruling in People v. Lymon will free about 300 people from the sex offender registry.  Beyond that, it further cements the Michigan Supreme Court as a national leader in building state antipunishment jurisprudence and expanding rights against extreme and needless punishments.  And that trend should continue: There are at least seven cases pending on the court’s docket that raise claims under the “cruel or unusual” clause, all touching on a common theme: will the court further limit lifetime punishments that, contrary to the state’s long constitutional history, “forswear[] altogether the rehabilitative ideal”?...

But in 2022, the Michigan Supreme Court revived its “cruel or unusual” jurisprudence with a series of rulings that protected youth and young adults from lifelong prison terms. In People v. Parks, the court banned mandatory life without parole sentences for people 18 and younger (raising the age under federal law by one year); in other cases it banned all life sentences for youth convicted of second degree murder and specified that there is always a presumption against life without parole sentences for youth — one that prosecutors must overcome with specific evidence. In each case, Michigan’s constitutional commitment to rehabilitation was central. “Rehabilitation is a specific goal of our criminal-punishment system,” the court said in Parks. “Indeed, it is the only penological goal enshrined in our proportionality test as a criterion rooted in Michigan’s legal traditions.”  

With last week’s decision in Lymon, the court reaffirmed and built on these cases, and it’s poised to do more in the next year.  The court’s docket includes more challenges to Michigan’s draconian sex offender registration law, including claims that lifetime sex offender registration and lifetime electronic monitoring constitute “cruel or unusual” punishment.  It will also consider further limits on death-by-incarceration sentencing—a practice that is by definition incompatible with rehabilitation.  It could apply Parks retroactively, to people with final convictions, and to all people under age 21; ban all life without parole — mandatory or discretionary — for youth under 18; and ban mandatory life without parole for people convicted under the so-called “felony murder rule” — an archaic legal doctrine that allows murder convictions and the most severe punishments even when there is no intent to kill. 

Collectively, these cases could restore hope to thousands — more than 1,000 people are serving life without parole for felony murder alone.  But they also raise a question: Will the court ultimately do with one clear holding what it has started to do piecemeal?  Will it recognize that, whatever their crime or age, sending people to die in prison without even the hope of release is cruel and conflicts with fundamental state constitutional rights? This year the Massachusetts Supreme Judicial Court made history by banning all life without parole sentences for anyone under age 21. The Michigan Supreme Court could be the first to ban them entirely.

South Carolina Supreme Court finds all three of state's execution methods to be constitutional

As reported in this local article, a "majority on the S.C. Supreme Court has ruled that allowing death row inmates the choice of the electric chair or firing squad to carry out their sentences does not constitute cruel and unusual punishment."  Here is more about the ruling:

The decision, published July 31, comes several years after the state legislature introduced the two methods as an alternative to lethal injection, which was discontinued after the state Department of Corrections was no longer able to procure the lethal drugs necessary to carry out those sentences.

The law prompted an immediate legal challenge, with opponents of the death penalty arguing that both alternative methods were exceedingly painful and unusual in a country where executions have overall been declining. Today, just five states — Idaho, Mississippi, Oklahoma, South Carolina and Utah — deploy firing squads for executions, while the electric chair is currently used in Alabama, Arkansas, Florida, Kentucky, South Carolina and Tennessee.

A Richland County court ruled in 2022 that both electrocution and the firing squad violated the South Carolina Constitution's provisions against cruel and unusual punishment.

Writing for the majority on July 31, Justice John Cannon Few wrote that the two methods could not be considered cruel and unusual because, rather than representing an effort to inflict pain, the execution methods represented the S.C. General Assembly's "sincere effort" to make the death penalty less inhumane while enabling the state to carry out its laws.

The full ruling in Owens v. Stirling, Opinion No. 28222 (S.C. July 31, 2024) (available here), which includes some partial dissents on certain execution methods, runs nearly 100 pages.  Because there seems to now be only a few (if any) current US Supreme Court Justices eager to police state execution methods, these kinds of state supreme court rulings are nearly certain to be the last legal word on these matters for the foreseeable future.

Intriguing DPIC analysis of capital clemency grants over last 46 years

The Death Penalty Information Center (DPIC) recently posted here an interesting analysis of "all 82 grants of clemency to individual death-sentenced prisoners between 1977-2023, excluding mass clemency grants." Here is how D{IC summarizes its findings at the start of the analysis:

In a new analysis, the Death Penalty Information Center has found that executive officials most often cite disproportionate sentencing, possible innocence, and mitigation factors such as intellectual disability or mental illness as reasons to grant clemency in capital cases.  Ineffective defense lawyering and official misconduct are also common factors in clemency grants.  While present in fewer cases, support for clemency from the victim’s family or a decisionmaker in the original trial, such as a prosecutor or juror, appears to have a powerful impact.  Prisoners frequently offer evidence of rehabilitation and remorse at clemency hearings, but this evidence is cited less often by officials.

Here is another notable part of the DPIC's analysis:

We found that about half of cases (47.6%) had more than one stated or apparent reason for clemency, illustrating the compounding nature of legal violations and unfair practices in capital cases.  However, this did not split evenly by category: while two-thirds of possible innocence cases had possible innocence as the only apparent reason for clemency, only one rehabilitation/remorse case out of ten had that factor as the only reason.  In other words, executive officials appeared confident in citing possible innocence as the sole reason for a clemency grant, or in granting clemency when innocence was the predominant argument, but almost always relied on another justification when rehabilitation/remorse played a role in the case.

Reviewing recent developments as more states consider second-look sentencing reviews

Stateline has this new piece on the growing interest at the state level of second-look sentencing reviews.  The piece is worth a full read, though its themes are summarized in the full headline: "Efforts to release prisoners from long sentences draw new interest: But many of the proposed policies have failed this year."  Here are a few excerpts (with links from the original):

As America’s prison population both ages and increases, the “second look” movement has gained interest as a way to reduce overcrowding and potentially save money. Both Republicans and Democrats have sponsored the bills, but some advocates and prosecutors say the laws could retraumatize crime victims and further burden a strained court system.

Still, at least one second look bill, in Oklahoma, was signed into law this year. The new law, which is set to go into effect soon, requires judges to consider whether domestic violence was a mitigating factor in a crime. If so, a defendant would be eligible for a lighter sentence compared with the usual mandatory ranges....

Some sentencing experts and criminal justice advocates think second look legislation could draw bipartisan support because the measures aim to address prison overcrowding and overspending by releasing people who are least likely to reoffend.

“It can be a way to address excess spending,” said Liz Komar, sentencing reform counsel with The Sentencing Project, a nonprofit criminal justice research and advocacy group. “We can reinvest scarce public safety dollars from being uselessly employed to keep people who are zero risk in prison to instead prevent crime in the community.”

At least 12 states already have second look measures in place, according to the group’s legislative tracker. The existing second look laws vary, with some allowing courts to reconsider sentences based on conditions such as an offender’s age at the time of the offense and amount of time served, and others allowing prosecutors to request the court reconsider a sentence....

Debate over second look policies has been intense. Some prosecutors, victim rights groups and family members of crime victims have voiced concerns that victims and their families could be retraumatized by the resentencing process.

Some fear that these policies could be abused. Others worry about overburdened prosecutors having to handle an influx of resentencing cases.

"Loper Bright and the Great Writ: Will the New Constitutionalists End 'Treason to the Constitution,' Restore the Judicial Power, and Make the Law of the Land Supreme Again?"

The title of this post is the title of this notable new paper authored by James Liebman and Anthony Amsterdam. Here is its abstract:

Chevron deference is dead.  The Court's forty-year, seventy-decision experiment with Article-III-court deference to "reasonable" agency interpretations of ambiguous federal statutes failed, killed in part by concern that it unduly curbed "the judicial Power" to enforce the rule of law in the face of politics, partisanship, and mission-driven agency decisionmaking. "AEDPA deference" lives.  The Court's twenty-five-year, seventy-two decision experiment with Article-III-court deference to "reasonable" state-court interpretations of the Constitution under the 1996 Antiterrorism and Effective Death Penalty Act continues to relegate criminal defendants to prison or death, notwithstanding federal habeas judges' independent judgment that the state courts have misread or misapplied the federal Constitution in adjudicating these defendants' claims.

How can this be?  Only if state judges have more authority to make constitutional law by which federal judges may be bound than federal agencies have to make sub-constitutional law by which federal judges may be bound.  This is obviously wrong.  Federal agencies are creatures of Congress to which it may appropriately delegate some of its power to make the law that federal courts then are duty-bound to apply.  Neither Congress nor any other authority save the American people by amendment may delegate the making of constitutional law.  Constitutional text and history make the wrongness even clearer.  The Framers wrote the Constitution precisely to quell the "violence of faction" that the States exhibited under the Articles of Confederation.  They understood faction to produce "improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury." So the Framers resolved to bind "the judges in every State" to treat the Constitution as the supreme Law of the Land; and the Framers gave federal judges-protected by life tenure and irreducible salaries-"the judicial Power" to neutralize factious state-court decisions by exercising independent judgment whenever Congress gave them jurisdiction to review those decisions.

Congress, for its part, has always mandated federal-court as-of-right review of state custody on either writ of error (1789-1914) and/or habeas corpus (1867-today). And throughout more than two-and-a-third centuries, the Supreme Court has issued one federal-courts classic opinion after another, characterizing deference to Congress' or state courts' reasonable-but-wrong constitutional judgments as "treason to the Constitution."  The New Constitutionalists successfully challenged Chevron under the banner of reasserting the rule of law to protect "small" businesses and "the citizenry" against politics and special interests.  The test of their bona fides is whether they will take the same course in cases of individuals criminally sentenced to imprisonment or execution through "improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury."

Could Prez Biden's decision "to stand down" impact his use of his clemency power?

There are, of course, so many political and policy elements to President Joe Biden's decision to end him campaign for re-election or, as he put it, "to stand down and to focus solely on fulfilling my duties as President for the remainder of my term."  But, as this is a sentencing blog, I am particularly interested in considering the possible impact on sentencing politics and policy.  And the unique and historic sentencing power that all presidents possess is the constitutional power to grant clemencies or, as Article 2 of the Constitution puts it, the "Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

This Axios piece from last week, headlined "Why presidents are wielding their pardon powers less and less," talked a bit about some modern clemency realities, and here are some excerpts:

A trend toward a less generous executive has emerged in U.S. clemency history.  So far, President Biden has been no exception....  But beyond sweeping proclamations, Biden has used his pardon power more sparingly than his modern predecessors on ordinary pardon cases, according to Justice Department data... Biden used them to pardon prior federal offenses of simple marijuana possession and veterans convicted and forced out of the military because of their gender identity or sexual orientation.

The big picture: Experts point to structural and political reasons for the shift toward a generally more restrained approach to clemency petitions.

Throughout U.S. history, the system has become deeply entangled in bureaucratic process, leading to a backlog of ordinary petitions, said Mark Osler, a legal scholar who advocates for sentencing and clemency reform.  What "Biden seems to be stuck with is a system of analysis that doesn't work and hasn't worked for his predecessors either," Osler said.  He pointed to a series of seven valves of review a petition must pass through — a pipeline Osler said lengthened under the Biden administration with additional input from the Domestic Policy Council.

Frank Bowman, a legal historian who has written extensively about the pardon power, cited the "nasty politics of our era" as one driving factor.  "Presidents have become hyper-cautious about making sure that they don't create the grist for the opposition mill," Bowman said.

By the numbers: President Obama granted the most acts of clemency — 1,927 pardons and commutations combined — dating back to Harry Truman, according to DOJ data.  But that's just over 5% of the petitions Obama received. As of May 2024, Biden had formally granted 153 petitions for clemency — that's 1.6% percent of all requests....

DOJ data shows that every president between Ford and Trump used his clemency power during his final days in office. Obama issued 1,185 clemency actions in just over three months in 2017 before he left office.  That's just over 61% of all of the petitions he approved.

The political concern about "creat[ing] the grist for the opposition mill" seems likely to limit Prez Biden's eagerness to grant many (or perhas any) clemencies before Election Day because his party is on the ballot, even though he is now a distinctive kind of lame duck.  But, as noted here (and likely forgotten everewhere else), in late October 2020, then-President Trump granted a few commutations a few weeks before the 2020 Election, and it is certainly possible that certain kinds of clemency grants might be seen in certain quarters as politically beneficial as the election approaches.

More obviously, after Election Day and no matter who wins, Prez Biden will be an even lamer kind of lame duck until January 20, 2025.  I presume a whole lot of advocates will be advocating for Prez Biden to make robust use of clemency at that point.  Notably, Prez Biden's son, Hunter Biden, is supposed to be go to trial on federal tax charges on September and to be sentenced on gun-related charges sometime thereafter.  When still a candidate a month ago, Prez Biden pledged not to grant a pardon or commutation to his son.  But I am inclined to guess his views may evolve on his son, especially after the election.  And more broadly, in his final months in office, I wonder if Prez Biden might be inclined to consider a broader set of potential set of clemency grants across a broad range of offenses and offenders.  I guess time will tell.  

En banc Fifth Circuit rejects claim Mississippi's lifetime felon disenfranchisement violates Eighth Amendment

As noted in this prior post, last year a split Fifth Circuit panel ruled in Hopkins v. Hosemann,,  No. 19-60662 (5th Cir. Aug. 4, 2023) (available here), that Mississippi's disenfranchisement for life of persons with certain felony convictions "is unconstitutional cruel and unusual punishment within the meaning of the Eighth Amendment."  In that post, I predicted that the panel ruling would likely be considered (and reversed) en banc, and that very predictable outcomes because a reality today with an opinion in Hopkins v. Watson,  No. 19-60662 (5th Cir. July 17, 2024) (available here).  Here are excerpts from the start of the majority opinion:

This en banc court convened to reconsider a panel decision holding that Section 241 of the Mississippi Constitution, which disenfranchises those convicted of certain felony offenses,1 fails the test of the Eighth Amendment, as incorporated by the Fourteenth Amendment’s Due Process Clause.2 We reject that result because the United States Constitution cannot properly be so interpreted.  The Supreme Court, in Richardson v. Ramirez, 418 U.S. 24, 94 S. Ct. 2655 (1974), reaffirmed a body of constitutional law expressly permitting States to enact felon disenfranchisement. And even if modern jurisprudence under the Eighth Amendment is applicable, which it is not, the case law cannot be stretched to outlaw Section 241....

Laws like Mississippi’s Section 241 have faced many unsuccessful constitutional challenges in the past. When the Supreme Court ruled that the Equal Protection Clause does not bar States from permanently disenfranchising felons, it dispensed some advice to the losing parties:

We would by no means discount these arguments if addressed to the legislative forum which may properly weigh and balance them. . . . But it is not for us to choose one set of values over the other. If respondents are correct, and the view which they advocate is indeed the more enlightened and sensible one, presumably the people . . . . will ultimately come around to that view. And if they do not do so, their failure is some evidence, at least, of the fact that there are two sides to the argument. Richardson v. Ramirez, 418 U.S. at 55, 94 S. Ct. at 2671.

In other words: go and convince the State legislatures.  Do the hard work of persuading your fellow citizens that the law should change.  The paramount lesson of the Constitution and Richardson is that the changes sought by Plaintiffs here can and must be achieved through public consensus effectuated in the legislative process, not by judicial fiat.  

The dissent begins this way:

The right to vote is the essence of a democratic society and “preservative of all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). Yet Article XII, Section 241, of the Mississippi Constitution of 1890 mandates permanent, lifetime disenfranchisement of a person convicted of “murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy.”  Disenfranchisement extends to free people who have completed all terms of their sentences.  The Plaintiffs, representing a class of persons who have been convicted of Section 241’s crimes and have completed the terms of their sentences, challenge the constitutionality of Section 241. The Plaintiffs are both Black and White, and their Eighth Amendment argument is independent of the “invidious” discrimination that originated Section 241.  Rather, the Plaintiffs argue permanent disenfranchisement of free persons who have completed all terms of their sentences constitutes cruel and unusual punishment in violation of the Eighth Amendment.  Under well-settled principles of Eighth Amendment jurisprudence, the Plaintiffs have met their burden. A national consensus to this effect has now formed among a large majority of the states. 

Prior related posts:

• Split Fifth Circuit panel rules that Mississippi's lifetime felon disenfranchisement violates Eighth Amendment
• Finding broader Eighth Amendment echoes from Fifth Circuit's ruling that lifetime felon disenfranchisement is unconstitutional 
• En banc Fifth Circuit to review panel ruling that lifetime felon disenfranchisement is unconstitutional under Eighth Amendment 

"The Excessive Fines Clause in the Federal Courts: A Quarter-Century of Narrowing"

The title of this post is the title of this recent article by Michael O'Hear posted a couple months ago to SSRN. Here is its abstract:

The Eighth Amendment prohibits “excessive fines,” but what exactly does “excessive” mean?  The question has taken on some urgency in recent years as American legislatures have sharply increased the economic penalties associated with criminal convictions.  In 1998, in United States v. Bajakajian, the Supreme Court for the first time established a test of sorts to determine whether an economic penalty is “excessive” in violation of the Eighth Amendment.  The test was not without its ambiguities but offered some potentially robust protection against the rising tide of fines, fees, forfeiture, and restitution.  However, the promise of Bajakajian has been undermined in the lower courts.

This Article presents the first systematic analysis of how Bajakajian has been interpreted and applied by the federal circuit courts of appeals.  The Article shows that, at practically every turn, the circuit courts have adopted narrowing interpretations of Bajakajian, which have largely negated the practical significance of the Eighth Amendment ban on excessive fines.  Indeed, in some important respects, the circuit-court opinions more closely resemble the dissenting than the majority opinion in Bajakajian.  The Article concludes with a consideration of what the Supreme Court might do in response to the circuit-court cases, from acquiescence to simple reaffirmation of Bajakajian to the development of an even more robust and easily enforceable approach to the Eighth Amendment right. 

Detailing the impact of the Supreme Court's Fischer ruling on other Jan 6 defendants

This new piece from Courthouse New Service provides a detail account of how the Supreme Court's recent Fischer ruling is impacting some January 6 riot prosecutions.  The full headline provides the essentials: "DOJ begins dropping Capitol riot obstruction charges following SCOTUS decision:  While only 2% of all Jan. 6 defendants are likely to be affected by the high court's decision, that group includes certain members of the extremist Proud Boys and Oath Keepers."  Here are some more particulars from the article:

According to the Justice Department in its most recent monthly update, 1,178 individuals of the total 1,472 defendants charged in connection with the Capitol riot were not charged with obstruction of an official proceeding. 

Of the remaining 259, 133 have already been sentenced — 76 of those were convicted on other felonies and 40 have already been released from prison.  There are only 17 defendants of that 133 who were sentenced on just felony obstruction with certain misdemeanors and remain incarcerated. 

The other 126 defendants are on pretrial release while awaiting sentencing or trials. 

The Justice Department emphasized that there are zero cases where a defendant was only charged with obstruction of an official proceeding and every defendant faces some other felony or misdemeanor charges.  In total, just 2% of Capitol riot defendants could potentially benefit from the Supreme Court’s decision. 

I am not sure I follow the 2% math, since it seems that there are more than thirty Jan 6 defendants that ought to potentially benefit from Fischer in some way.  That said, I do fear there with be defendants who should benefit from FIscher who, because of appeal waivers or other procedural barriers, will not be able to secure Fischer-based justice.  And, more broadly, the data reported above  suggests that the vast majority of Jan 6 defendants are not going to be impacted by the Fischer ruling.

Prior related posts:

• Supreme Court, by 6-3 vote, limits reach of federal statute criminalizing obstructing official proceeeding in Jan 6 prosecution 
• Reviewing some reviews of the impact of SCOTUS Fischer ruling on Jan 6 prosecutions

US Supreme Court stays Texas execution minutes before scheduled lethal injection

As reported in this AP article, the "U.S. Supreme Court granted a stay of execution for a Texas man 20 minutes before he was to receive a lethal injection Tuesday evening.  The inmate has long maintained DNA testing would help prove he wasn’t responsible for the fatal stabbing of an 85-year-old woman during a home robbery decades ago."  Here is more:

The nation’s high court issued the indefinite stay shortly before inmate Ruben Gutierrez was to have been taken to the death chamber of a Huntsville prison.

Gutierrez was condemned for the 1998 killing of Escolastica Harrison at her home in Brownsville in Texas’ southern tip. Prosecutors said the killing of the mobile home park manager and retired teacher was part of an attempt to steal more than $600,000 she had hidden in her home because of her mistrust of banks.

Gutierrez has sought DNA testing that he claims would help prove he had no role in her death. His attorneys have said there’s no physical or forensic evidence connecting him to the killing. Two others also were charged in the case.

The high court’s brief order [available here], released about 5:40 p.m. CDT, said its stay of execution would remain in effect until the justices decide whether they should review his appeal request. If the court denies the request, the execution reprieve would automatically be lifted....

Gutierrez has had several previous execution dates in recent years that have been delayed, including over issues related to having a spiritual adviser in the death chamber. In June 2020, Gutierrez was about an hour away from execution when he got a stay from the Supreme Court.

In the most recent appeal, Gutierrez’s attorneys had asked the Supreme Court to intervene, arguing Texas has denied his right under state law to post-conviction DNA testing that would show he would not have been eligible for the death penalty. His attorneys argued that various items recovered from the crime scene — including nail scrapings from Harrison, a loose hair wrapped around one of her fingers and various blood samples from within her home — have never been tested....

Prosecutors have said the request for DNA testing is a delay tactic and that Gutierrez was convicted on various pieces of evidence, including a confession in which he admitted to planning the robbery and that he was inside her home when she was killed. Gutierrez was convicted under Texas’ law of parties, which says a person can be held liable for the actions of others if they assist or encourage the commission of a crime.

Split Fifth Circuit panel holds that "changes in the law" can be a basis for sentence reduction under § 3582(c)(1)(A)(i)

A helpful colleague made sure I did not miss a notable new panel decision from the Fifth Circuit in US v. Jean, No. 23-40463 (5th Cir. July 15, 2024) (available here).  The case concerns the long-simmering question of whether "changes in the law" can provide a basis for a sentence reduction under § 3582(c)(1)(A)(i), and this appeal concerns review of a reduction granted before the new US Sentencing Commission amended guideline was applicable.  Both the facts and reasoning in Jean are worth reading in full, but here are a few key passages from the majority opinion:

The question before the court is a simple one: does a sentencing court have the discretion to hold that non-retroactive changes in the law, when combined with extraordinary rehabilitation, amount to extraordinary and compelling reasons warranting compassionate release?  Considering this question carefully, we answer it in the affirmative.

We explain first the discretion afforded to a sentencing court.  With this discretion in mind, we conclude that there is no textual basis for creating a categorical bar against district courts considering non-retroactive changes in the law as one factor.  Next, we explain that our precedent does not prevent us from reaching this outcome.  Nor is this outcome inconsistent with other unpublished decisions from this court. And finally, we explain that, although the Sentencing Commission’s November 1, 2023 Amendments are not binding on appeal, the Amendments support the outcome we reach today....

In deciding the same question before us, the United States Court of Appeals for the Ninth Circuit in United States v. Chen concluded that “[t]o hold that district courts cannot consider non-retroactive changes in sentencing law would be to create a categorical bar against a particular factor, which Congress itself has not done.” 48 F.4th 1092, 1098 (9th Cir. 2022).  We agree.  Congress has never wholly excluded the consideration of any factors. Instead, it appropriately “affords district courts the discretion to consider a combination of ‘any’ factors particular to the case at hand.” Id....

It is within a district court’s sound discretion to hold that nonretroactive changes in the law, in conjunction with other factors such as extraordinary rehabilitation, sufficiently support a motion for compassionate release. To be clear, it is also within a district court’s sound discretion to hold, after fulsome review, that the same do not warrant compassionate release. For this court to hold otherwise would be to limit the discretion of the district courts, contrary to Supreme Court precedent and Congressional intent. We decline the United States’ invitation to impose such a limitation. And, of course, district courts are now guided by the November 1, 2023 Amendments in future cases.

The dissent authored by Judge Jerry Smith starts this way:

The kindest thing I can say about the majority’s zealous1 opinion is that it is a horrifying violation of this court’s well-respected rule of orderliness. I respectfully dissent.

US Sentencing Commission this morning conducting "Public Hearing on Retroactivity" for its proposed 2024 guideline amendments

As detailed in this official notice, the United States Sentencing Commission is scheduled this morning to begin a public hearing "for the Commission to gather testimony from invited witnesses concerning whether to designate as retroactive certain 2024 guideline amendments relating to acquitted conduct, firearms, and drug offenses."

The USSC published some of the first round of public comments here, and it is allowing reply comment to be submitted (through the Public Comment Submission Portal) by July 22, 2024.  And, as previous noted, the Commission has published its staff's analysis of the impact of certain 2024 amendments if made retroactive at this link.

This USSC webpage provides the video link to watch the hearing, which is scheduled to run from 9am to 12:15pm, as well as the full "Agenda and Witness Statements."  I am not sure I will have a chance to listen to the full hearing, but I am going to try to listen to the first two panels focused on the acquitted conduct amendment. 

Latest episode of "Drugs on the Docket" podcast engages with David Pozen and his new book, The Constitution of the War on Drugs

In this post from last month, I highlighted that the Drug Enforcement and Policy Center at The Ohio State University had started releasing episodes from Season Two of the "Drugs on the Docket" podcast.  (All of the first season's episodes are all still available via Apple Podcasts and YouTube, where you can also find prior Season 2 episodes as well.)   Now, as detailed on this podcast webpage, we just recently released the fourth episode of this new season. which I consider absolutely fascinating on a number of fronts because it covers the intersections of constitutional right and jurisprudence and modern drug enforcement law and policy.  Here is the episode's description along with some notable show notes from the podcast website:

Season 2 Episode 4 – “The Constitution of the War on Drugs” with David Pozen

In this episode, host Hannah Miller and co-host Douglas Berman, executive director of the Drug Enforcement and Policy Center, speak with author and professor David Pozen to discuss his new book, The Constitution of the War on Drugs. In this groundbreaking work, Pozen provides a comparative history lesson on U.S. court cases in which constitutional arguments for drug rights were or were not employed, explains how the Constitution helped to legitimate and entrench punitive drug policy, and offers a constitutional roadmap to drug policy reform that may yet prevail in an increasingly originalist-leaning federal court system.

David Pozen is Charles Keller Beekman Professor of Law at Columbia Law School.

Show notes:

• Purchase The Constitution of the War on Drugs
• Access a free copy of The Constitution of the War on Drugs
• Balkinization blog symposium on The Constitution of the War on Drugs
• Read Perspectives on The Constitution of the War on Drugs: A Collection of Posts from the Balkinization Blog

Because there is so much richness in this podcast discussion and throughout the book, I am disinclined to here highlight any one aspect of the constitutional discussions. And yet, for sentencing fans, I will still flag that Chapter 4 of the book focuses on punishment issues and the Eighth Amendment, closing with this observation and teaser:

Even as American jurists have insisted that scrutinizing the severity of prison sentences is an invitation to lawlessness, the rest of the world has determined that a significantly more ambitious and demanding version of proportionality — one that eschews categorical rules in favor of structured balancing — is a foundation stone of the rule of law. Applying this version of proportionality, apex courts in Africa, Asia, Europe, North America, and South America have limited the penalties that may be applied to a growing set of drug users.  In the concluding chapter, I will return to these cases and to the question of what they might teach the United States.

"Past, Prologue, and Constitutional Limits on Criminal Penalties"

The title of this post is the title of this new article authored by Maria Hawilo and Laura Nirider recently published in the Journal of Criminal Law and Criminology. (I just came across this article thanks to this new Slate commentary by Kyle Barry and Maria Hawilo titled "How States Can Undo One of This Supreme Court Term’s Most Egregious Decisions.") Here is the journal article's abstract:

Most criminal prosecutions occur at a level that is both neglected by many legal scholars and central to the lives of most people entangled in the criminal legal system: the level of the state. State v. Citizen prosecutions, which encompass most crimes ranging from robbery to homicide, are governed both by the federal constitution and by the constitution of the prosecuting state.

This is no less true for sentences than for prosecutions. When it comes to sentences, state courts are bound by the Eighth Amendment to the United States Constitution, which famously proclaims that no American shall be subjected to “cruel and unusual punishment.” But state constitutions may go further than the federal constitution. States may adopt constitutional provisions analogous to the Eighth Amendment that establish even more effective guards against unreasonable or vindictive punishments.

One state — Illinois — has so chosen.  At Illinois’s most recent constitutional convention in 1970, a group of statewide delegates agreed to reconsider the limits set by the state’s constitution on criminal punishments.

From that convention emerged a revolutionary idea: that Illinois should adopt in its constitution the strongest known language in the nation limiting a government’s ability to mete out extreme punishments to those citizens who have transgressed the criminal law — and clearly identifying the purpose of those criminal sentences as rehabilitation. Thus was born what appears in Illinois’s constitution today: the so-called proportionate-penalties clause.  That clause, codified in 1970 as Article 1, Section 11 of the Illinois Constitution, proclaims that “all penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. No conviction shall work corruption of blood or forfeiture of estate. No person shall be transported out of the State for an offense committed within the State.”

This Article traces the origins of the proportionate-penalties clause back to the 1970 constitutional convention, using floor debate transcripts and other contemporaneous sources to establish that its authors did, indeed, intend Illinois sentences to serve rehabilitative purposes.  To interrogate the context of those documents, this Article also examines the surrounding historical events of late 1960s-era Chicago, as well the lives and identities of the delegates who propelled this clause forward.

This Article uses the authors’ words as prescient calls for a new interpretation of the proportionate-penalties clause that hews to their vision — and that can serve as a model for rethinking the guardrails around criminal punishments nationwide.  Indeed, a constitutional scheme that insists that criminal penalties be directed at rehabilitative ends can and must carry implications for many of the statutes and rules that sustain our current system of mass incarceration.

Noting recent clemency grants and broader clemency record of Michigan Gov Whitmer

This new local press article, headlined "Whitmer grants clemency to 5, including two first-degree murder convicts, but not DeLisle," caught my attention in part because the Governor of Michigan is among a number of prominent Democratic officials getting extra attention amid debate over President Joe Biden's seemingly uncertain status as a presidential candidate.  Helpfully, this new press piece discusses Gov Whitmer's recent clemency work in the context of broader clemency records in Michigan:

Michigan Gov. Gretchen Whitmer has pardoned two individuals and commuted the sentences of three others, including two inmates who were convicted of first-degree murder and would otherwise spend the rest of their lives in prison.... 

In a Wednesday statement, Whitmer said the clemency designations were based on recommendations from the Michigan Parole Board.  "By granting clemency to five individuals who have taken accountability for their actions, we will offer them a fair shot to build a good life in Michigan," Whitmer said.

Both the governor and Lt. Gov. Garlin Gilchrist said the clemency decisions are part of an effort to give people in the criminal justice system a second chance. They noted other measures include recent expansions of "Clean Slate" legislation meant to wipe nonviolent offenses off people's records and intervention programs in the court system to connect people to mental health aid, substance abuse support and job resources....

Hundreds of individuals request a pardon or commutation each year through applications submitted to the Michigan Parole Board, which reviews those applications, sometimes grants hearings and then makes a recommendation to the governor. The governor grants several of the requests each year.  In 2023 alone, 521 individuals submitted applications seeking commutations.

Since becoming governor in 2019 and with Wednesday's numbers included, Whitmer has commuted the sentences of 35 inmates, including seven who were convicted of first-degree murder, and three with second-degree murder convictions, according to Michigan Department of Corrections records. In 2022, Whitmer also granted pardons to four people who'd already served their sentences for nonviolent offenses.

By comparison, Democratic former Gov. Jennifer Granholm granted commutations to 180 prisoners from 2003-11, and Republican former Gov. Rick Snyder commuted 32 sentences from 2011-18.  Overall, Michigan governors have commuted the sentences of 379 prisoners since 1969, 162 of whom had been convicted of first-degree murder, according to Michigan Department of Corrections records. Clemency was granted to 95 inmates for medical reasons.

Hoping admin law gurus will help us all understand what Loper Bright might mean for federal sentencing law

More than 30 years ago, I had the great fortune to take administrative law in law school from then-Judge Stephen Breyer.  Though I am sure I learned a lot in that admin law course, what I most remember learning is that I did not want to practice admin law.  And yet, ironically I suppose, a good portion of my professional career has been devoted to considering (and sometimes criticizing) the work of the only federal administrative agency localed in the judicial branch, the US Sentencing Commission.  Moreover, especially since the First Step Act created all sorts of new provisions to be applied to federal prisoners, I have been giving ever more attention to the work of the administrative agency known as the Federal Bureau of Prisons (which is within the bigger administrative agency known as the US Department of Justice).  I am not sure it is surprising as much as it is intriguing that a whole lot of federal sentencing and correections law emerge from the actions of federal administrative agencies.

This post's preamble is meant to tee up the isssue flagged in the title, as the Supreme Court last week issued a significant administrative law ruling in Loper Bright Enterprises v. Raimondo, No. 22-451, (S. Ct. June 28, 2024) (available here), wherein the Court formally eliminated so-called Chevron deference in the consideration of challenges to actions by adminstrative agencies. Here is the key closing statement of the ruling in the case from Chief Judge Roberts' opinion for the Court:

Chevron is overruled.  Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.  Careful attention to the judgment of the Executive Branch may help inform that inquiry.  And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it.  But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.

So how does this significant ruling impact actions by the US Sentencing Commission and the Bureau of Prisons?  Candidly, I do not know.  I have already received a number of emails from a number of folks wondering if Loper Bright might be a federal sentencing game-changer in some respect, and I am always inclined to think probably not.  But as flagged in a post here a couple years ago, the Supreme Court's ruling in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), recast for federal courts "the deference they give to agencies ... in construing agency regulations" and that ruling has rippled in uneven and unpredictable ways through circuit decisions about how Guideline commentary can inform application of certain USSC Guidelines.  And, writing here in Forbes, Walter Pavlo notes on-going litigation over BOP's implementation of the First Step Act and concludes with this forecast: "The Chevron ruling will certainly prompt more lawsuits against the BOP in the coming months as prisoners will simply be asking for what Congress intended them to have ... less time in prison."

Adding to the intrigue, I suppose, is the fact that the Department of Justice (an agency) is currently arguing in courts nationwide that the US Sentencing Commission (an agency) misinterpreted the Sentencing Reform Act and the First Step Act when it recently amended USSG §1B1.13, Reduction in Term of Imprisonment Under 18 U.S.C. § 3582(c)(1)(A) (Policy Statement), to provide in subsection (b)(6) that, when "a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law ... may be considered in determining whether the defendant presents an extraordinary and compelling reason" to potentially permit a reduction in his imprisonment term.   Notably, the SRA expressly delegates to the USSC the responsibility to "describe what should be considered extraordinary and compelling reasons for sentence reduction," 28 USC § 994(t), and so I would think Loper Bright still supports courts showing "respect [to] the delegation."  But I have a feeling DOJ will not read Loper Bright to end its legal attack on the amended guideline.

There is on-going litigation before a number of circuits concerning this amended USSC's policy statement, and it will be interesting to see if circuit judges rely heavily or at all on Loper Bright as they sort through the claim by DOJ that the USSC actions were not kosher.  And if DOJ prevails and/or Loper Bright supports efforts to assail the US Sentencing Guidelines on statutory grounds, I wonder whether defendants and defense attorneys might be able to champion other statutory language in 28 USC § 994 to assail other Guidelines.  For example, I have long thought many Guidelines — and particularly key provisions of the fraud and drug guidelines — fail to comply with 994(j), wherein Congress provided that the "Commission shall insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense."  Could and should whole guidelines or particular subprovisions be attacked by defendants whenever in non-violent, low level cases these provisions do not recommend "imposing a sentence other than imprisonment"? 

My sense is that it will take quite a while before we fully understand the impacts of the Loper Bright ruling in awide array of legal arenas.  I am just starting early with my general call that the folks smart enough to really understand administrative law make sure not to forget to helping all of us working through the possible federal criminal law echoes.

Reviewing cert denial statements in criminal justice cases from the latest SCOTUS order list

As noted in a prior post, the Supreme Court this morning via this order list had a lot of GVRs, a few vert grants, and finally a bunch of comments on cert denials.  Four of the six cases with those comments involved criminal justice issues, which I will quickly recap:

Denial of cert in Price v. Montgomery County prompts Justice Sotomayor to issue a statement questioning whether "absolute immunity [should be] available under §1983 when, as here, a prosecutor knowingly destroys exculpatory evidence and  defies a court order."  She explains ways to address prosecutorial misconduct and suggests that if "this is what absolute prosecutorial immunity protects, the Court may need to step in to ensure that the doctrine does not exceed its 'quite sparing; bounds." 

Denial of cert in McCrory v. Alabama prompts Justice Sotomayor to issue a statement questioning remedies for when there are "convictions resting on forensic evidence later repudiated by the scientific community."  She does so in a case in which "Charles M. McCrory was convicted of murder in 1985 based on forensic bitemark testimony that has now been roundly condemned by the scientific community and retracted by the expert who introduced it at his trial."  She  concludes her 13-page statement this way:

I vote to deny this petition because the constitutional question McCrory raises has not yet percolated sufficiently in the lower courts to merit this Court’s review. There is no reason, however, for state legislatures or Congress to wait for this Court before addressing wrongful convictions that rest on repudiated forensic testimony.

Denial of cert in King v. Emmons prompts Justice Jackson to dissent, joined by Justice Sotomayor, in a capital case in which "a Georgia prosecutor struck every Black woman and all but two Black men from a jury pool."  The end of the 10-page dissent concludes with Justice Jackson stating she "would summarily reverse the Court of Appeals’ erroneous application of deference in upholding the state court’s decision and remand for reconsideration of King’s Batson claim without the deference AEDPA otherwise requires."

Denial of cert in Bassett v. Arizona prompts Justice Sotomayor to dissent, joined by Justices Kagan and Jackson, in a case involving sentencing of a juvenile to a mandatory LWOP term.  The dissent contends that "Arizona advances three arguments for why Bassett did, in fact, receive all the discretionary process required by Miller....  Each runs contrary to Miller’s clear command." Consequently, after running through the Arizona argument, this dissent concludes by stating that "[b]ecause the Arizona Supreme Court’s decision departed from this Court’s established precedents, [she] would grant the petition for certiorari and summarily reverse the judgment below." 

US Sentencing Commission notices "Public Hearing on Retroactivity" for its proposed 2024 guideline amendments

As detailed in this official notice, the United States Sentencing Commission has now announced "a public hearing is scheduled for Monday, July 15, 2024 from 9:00 am–12:15 pm (EDT)."  Here is more, with helpful links from the USSC:

The purpose of the public hearing is for the Commission to gather testimony from invited witnesses concerning whether to designate as retroactive certain 2024 guideline amendments relating to acquitted conduct, firearms, and drug offenses."...

The Commission received public comment on retroactive application and is currently accepting reply comment. Written reply comments, which may only respond to issues raised during the original comment period, should be received by the Commission not later than July 22, 2024. You may submit written reply comments through the Public Comment Submission Portal.

The Commission also published an analysis of the impact of certain 2024 amendments if made retroactive. Learn more.

Especially because the number of cases potentially impacted by guideline retroactivity this year seem to be pretty modest (particularly as compared to guideine reforms made last year), I am inclined to indulge my usual intuition that all guidelines reforms ought to be made retroactive on some terms.  After all, if and when an expert commissions votes to change sentencing rules for the better, it makes sense to me that those new rules ought to be presumptively retroactive subject to case-specific review of why particular prisoners ought not get a benefit from retroactivity.

Surpeme Court grants cert on First Step resentencing, GVRs gun issues, and lots of statements in (final?) order list

I am already way, way behind on my Supreme Court reading, and the Justices this morning via this order list gave us all another 53 pages of SCOTUS copy to process.  As is common for an end-of-term order list, this one starts with a bunch of GVRs (cert "granted," judgment "vacated," case "remanded") based on notable recent rulings, then follows with a few grants and then a bunch of comments on cert denials. 

I saw a big bunch of Erlinger remands along with a number of Loper Bright ones and a few based on Fischer and Diaz.  The most notable of the set, though, are the many Rahimi remands in an array of cases raising Second Amendment challenges to various application of federal criminal gun possession prohibitions under 18 USC 922(g).  In particular, it seems SCOTUS has GVRed all the felon-in-possession cases that the US Solicitor General suggested be taken up right away in light of Rahimi.  I am not really surprised the Justcies are content to kick federal felon-in-possession cases down the road, but it simply ensure a lot more legal churn in lower courts (and perhaps a lot more people unconstitutonally prosecuted) as the Justice go off on their summer vacation and the rest of us try to read Rahimi tea leaves.  There is little doubt in my mind that the Justices will have to resolve the constitutionality of 922(g)(1) sooner or later, but they ultimately get to decided just when and how while the rest of use deal with the legal uncertainty.

But I suppose I cannot be too grumpy at the Justices because, in this same order list, they did grant cert (and consolidate) two cases involving the application of the First Step Act.  Specifically, as explained in this cert petition in one of the cases, the issue taken up by SCOTUS in the new cases of Duffey and Hewitt is:

Whether the First Step Act’s sentencing reduction provisions apply to a defendant originally sentenced before the First Step Act’s enactment when that original sentence is judicially vacated and the defendant is resentenced to a new term of imprisonment after the First Step Act’s enactment.

Last but certainly not least, the lengthy order lists concludes with statements or dissents in a half-dozen cases in which cert was denied authored by a handful of Justices.  A number of these cases are criminal matters of note, so I will cover some of that action in a future post. Whew.

Effective review of prospects and challenges of sentence reductions for women sexually abused by guards

Writing at Bolts, Piper French has this legnthy review of the issues surrounding efforts by women in federal prison who have been sexually abused to secure compassionate release.  The piece is fully titled “'What’s More Extraordinary and Compelling?': Women who suffered sexual abuse at the hands of guards at a notorious federal prison in California are now seeking compassionate release."  I recommend the article in full, and here are excerpts:

It’s difficult to imagine a more serious abuse of power than a prison guard who preys on a person whose every action he already controls — her communication with the outside world, her visits with her family; her access to food, supplies, showers, medical care.  Federal prison officials allowed this type of abuse to go on unchecked for years.  Now that the story has broken open, the litigation, prosecutions, and efforts to establish broader federal oversight are really attempts to answer one central question: What does an appropriate remedy look like? 

Lately, lawyers representing the survivors are trying a novel strategy: compassionate release.  The mechanism, generally conceived of as a last-resort option for dying or medically incapacitated prisoners, is for the first time being considered as a reparative measure for women who were sexually abused while in federal custody. 

“We thought, what’s more extraordinary and compelling, which is the standard for compassionate release, than being sexually abused by prison guards after your sentence has been imposed?” said Shanna Rifkin, deputy general counsel for Families Against Mandatory Minimums (FAMM), who is spearheading the effort.  “No federal judge sentences people to be sexually abused in prison.” 

FAMM and the pro bono lawyers working with them have helped secure compassionate release for 17 former inhabitants of FCI Dublin thus far, and they’re evaluating 95 additional requests for legal aid from women formerly held at the facility.  But seeking this remedy has come with its own challenges — ones that underscore precisely why it’s so difficult to eradicate sexual violence in prison. 

Reviewing some reviews of the impact of SCOTUS Fischer ruling on Jan 6 prosecutions

I have already seen a handful of notable discussions of how the Supreme Court's limiting interpretation of a federal obstruction statute in Fischer v. US, No. 23-55 (S. Ct. June 28, 2024) (available here), may impact a host of federal prosecutions emerging from the January 6 riot at the US Capitol.  Here is just a partial round-up of some of these pieces:

From CBS News, "How will the Supreme Court's Fischer ruling impact Jan. 6 cases?"

From The Independent, "‘The decision will not have tremendous significance’: Why SCOTUS’ Jan. 6 ruling will only impact a handful of rioters"

From Just Security, "The Limited Effects of Fischer: DOJ Data Reveals Supreme Court’s Narrowing of Jan. 6th Obstruction Charges Will Have Minimal Impact"

From the Washington Post, "What’s next for the Jan. 6 riot probe after Supreme Court ruling?"

The Just Security piece authored by Ryan Goodman, Mary B. McCord and Andrew Weissmann provides the most extensive and intricate analysis of Fischer's likely impact on Jan 6 defendants. Here is part of the start of its analysis near the start of the piece: 

The upshot is that the decision means little in terms of the pending charges against former President Donald Trump.  It means potentially more to a subset of the January 6th defendants who were charged under this statute, who comprise only a fraction -– 24% -– of the existing January 6th defendants.  And even within that 24%, in the great majority of cases that have resulted in a guilty verdict (by plea or after trial) for a 1512(c)(2) offense, the defendant was also found guilty of one or more other felonies (62%).  Further, as to the 71 defendants who have been charged under Section 1512(c)(2) and are still awaiting trial, all of them are charged with crimes in addition to 1512(c)(2), and a majority are charged with one or more other felonies.  A perfect illustration of this is the three defendants whose cases led to the Supreme Court taking up the 1512(c)(2) statutory interpretation issue: Joseph Fischer, Edward Lang, and Garrett Miller.  All three were charged with several other felonies including assaulting law enforcement officers. And even for the small percentage of defendants who may now be subject to resentencing post-Fischer, judges can still take into account the underlying conduct that formed the basis for the 1512(c)(2) violation.