Sentencing Law and Policy

Is it really so hard to make sense of AG Garland's federal capital punishment administration?

The question in the title of this post is my reaction to this lengthy new Washington Post article headlined "Justice Department standards on federal death penalty called confusing."  Here are excerpts (with a few points highlighted for commentary to follow):

The Justice Department’s disparate approaches in a pair of mass-killing cases is generating accusations that the Biden administration has failed to press for the elimination of capital punishment and is not applying clear standards in judging who, if anyone, should face the death penalty.

On Monday, federal prosecutors will begin the death penalty phase in the trial of Sayfullo Saipov, who was convicted last month on murder and terrorism charges for fatally hitting eight pedestrians with a truck on a New York City bike path in 2017.  That comes days after the Justice Department announced an agreement allowing Patrick Crusius, who pleaded guilty to killing 23 people and injuring 22 while targeting Mexicans during a mass shooting rampage at a Walmart in El Paso in 2019, to avoid the death penalty.  He faces life in prison....

Analysts said the Justice Department’s decisions in those cases and several others make it difficult to detect a consistent policy more than two years into the Biden presidency.  As a candidate, Biden made promises to push for legislation banning capital punishment over concerns about how federal executions are carried out and how prosecutors have disproportionately targeted racial minorities and the poor.

Biden has said little about the issue since taking office. Attorney General Merrick Garland has deauthorized 25 death penalty cases that were started under previous administrations, and the Justice Department has not authorized any new capital cases since he took over in 2021.

The Justice Department in 2021 and 2022 continued to back capital convictions in the face of appeals from Dylann Roof, a White man who fatally shot nine Black parishioners in Charleston, S.C., in 2015, and Dzhokhar Tsarnaev, who orchestrated, along with his older brother, a bombing that killed three at the Boston Marathon in 2013. Federal courts upheld both of their death penalty sentences.

Meantime, seven federal capital cases, including Saipov’s, remain active, Justice officials said.  Among them is the government’s prosecution of Robert Bowers, who is set to stand trial in April on charges related to the mass shooting that slaughtered 11 people at the Tree of Life synagogue in Pittsburgh in 2018.

“It’s really hard to say what’s going on,” said Monica Foster, a federal public defender representing Jairo Saenz, an MS-13 gang member who, along with his brother Alexi, are facing capital charges in connection with seven killings in Long Island in 2016.  Federal prosecutors announced in 2020 that they would seek the death penalty for both men; Foster, who recently took over Jairo Saenz’s defense, said she intends in March to ask Garland to withdraw the death penalty — a formal Justice Department process known as a deauthorization request.  Lawyers for Alexi Saenz said they, too, will seek deauthorization....

“They clearly are willing to walk back prior authorizations, so then it’s just a question of when?” said Nathan Williams, a former federal prosecutor who helped oversee Roof’s conviction in 2015.  “What’s distinguishing those cases, the ones they dismissed the notice on, from the cases of Bowers or Roof or Tsarnaev?  My guess is that they are less egregious cases. But then on the more egregious ones, are we seeing a general policy or a reflection of individual decisions on cases?”

The answer could have a direct bearing on another high-profile case, as the Justice Department is still deliberating over whether to pursue a capital case against Payton Gendron, a White man who faces 27 hate-crime and gun-related offenses in the fatal shooting of 10 Black people in a Buffalo grocery store last year.  Gendron live-streamed his attack and is alleged to have written a 180-page manifesto spouting white supremacist conspiracy theories and anti-Black and anti-Jewish rhetoric, while laying out plans for the assault.

“I was more than a little surprised when I saw what happened” in the Saipov bike path case, said Terrence Conners, a lawyer who represents victims’ families in the Gendron case.  The families have expressed split opinions over whether Gendron should face capital punishment. “The expressed policy of the Biden administration and the policy of Merrick Garland has been anti-death penalty,” Connors said. “With the horrible events in Buffalo and the racial animus and the predetermination [from Gendron], it may be a case that changes their minds.”

The Justice Department has long-standing policies governing how decisions on capital cases are made. The process, which typically takes more than a year, includes recommendations from a capital case committee in Washington, U.S. attorneys and the department’s Civil Rights Division, along with input from victims’ families, defense attorneys and community leaders.... Administration officials cautioned that because Garland has not authorized any new death penalty cases, it does not mean he is firmly opposed to doing so.  The officials spoke on the condition of anonymity, citing active legal cases....

Cassie Stubbs, director of the ACLU’s Capital Punishment Project, suggested Garland might be distinguishing between honoring decisions in capital cases made by prior administrations, while staking out his own legacy in not approving any new cases under his watch....

In announcing Crusius’s plea deal in El Paso, under which he faces 90 consecutive life sentences, assistant U.S. Attorney Ian Hanna acknowledged that the defendant has schizoaffective disorder, a signal that the government viewed the disability as a mitigating factor against capital punishment.

Crusius’s legal team had hired an outside expert, who made the diagnosis, and the Justice Department agreed with the findings, in part because the expert was someone that federal authorities also have consulted on cases and trusted, according to a federal government official who spoke on the condition of anonymity to discuss private deliberations. The Justice Department’s position in the Crusius case stands in contrast to the decision made by El Paso’s district attorney’s office, which is seeking the death penalty in the state’s murder case against Crusius, of Allen, Tex.

Twenty-three states have abolished the death penalty, while three — Oregon, Pennsylvania and California — have a moratorium against it. The number of state executions has fallen from 60 in 2005 to 18 in 2022, according to the Death Penalty Information Center. Texas has executed 581 people since 1977, nearly five times more than Oklahoma, the state with the second-most executions.

The lines I have emphasized from these excerpts make it not "confusing" for me to make sense of the current administration's approach to capital punishment.  For starters, two years in, AG Garland has not authorized any new federal capital cases. But, showing respect for the fact that Congress has not repealed the death penalty, he also has not announced that he would never seek a federal capital charge.  So why not seek capital punishment for Patrick Crusius?  In addition to the fact the mental health issues, the feds could be confident that a capital prosecution could be pursued, perhaps a lot more efficiently, by state prosecutors in Texas, a state with a considerable capital track record. (The Buffalo mass shooting, in a state without the death penalty, presents a harder question and it will be interesting to see AG Garland's capital decision there.)

Next, for ongoing cases, it makes perfect sense that AG Garland, exercising his prosecutorial discretion, would "deauthorize" capital prosecution in the "less egregious" cases but not in the "more egregious" cases.  I am not familiar with all the facts in all recent federal capital cases, but the idea that federal capital cases would keep moving forward in the most horrific mass killings and would not in less extreme cases seems entirely in keeping with a view of the death penalty being reserved for "the very worst of the worst."  Moreover, in mass killing cases, there are likely a greater number of victims and victims' family members who may express a strong interest in having the federal capital cases continued.

Of course, capital punishment abolitionists are always going to be grumpy when any capital case continues and capital punishment advocates are often going to be troubled when certain capital cases are not aggressively pursued.  But, the fact that AG Garland is taking a cautious case-by-case approach to capital cases does not make his standards inherently confusing or unprincipled.  Indeed, considering each case carefully on its own merits seems absolutely essential to the effective administration of justice in capital and non-capital cases.

Maine momentum for restoring parole as part of broader focus on rehabilitation

This local article, headlined "Maine legislators push to reestablish parole, citing disparities in criminal justice system," reports on some interesting criminal justice reform developments in the Pine Tree State.  Here are excerpts (with links from the original):

With the release of a comprehensive 240-page report, the return of parole to Maine’s correctional system seems more likely, though still far from a sure thing.

The Maine Legislature’s parole study commission convened last year issued its final report on Jan. 30 that includes an ambitious set of recommendations, though not all received unanimous support.

The commission was an outgrowth of a 2021 bill, LD 842, from then-Rep. Jeff Evangelos (I-Friendship), who proposed reinstating parole opportunities for all those incarcerated in state institutions. 

Maine’s Legislature first established a system of parole in 1913, allowing for an incarcerated person’s sentencing period to be reevaluated by corrections officers after serving a minimum length of time.  Parole was abolished in Maine in 1976.

A unanimous recommendation came for expansion of the existing early release program, which allows inmates with 30 months or fewer of their sentence to serve the remainder in home confinement.... 

Evangelos convinced commissioners to include reinstatement of a weekend furlough program.  “It would allow fathers to get to know their kids, and mothers to hold their children, sometimes for the first time,” he said.

Also gaining strong support was a new Criminal Law Revision Commission, which once made frequent suggestions for legal changes, but lapsed in 2005.

On the critical vote for parole, the commissioners divided 7-2 in favor, with Corrections Commissioner Randall Liberty and Sen. Scott Cyrway (R-Winslow) opposed.  The co-chairs, Sen. Craig Hickman (D-Winthrop) and Rep. Charlotte Warren (D-Hallowell) voted in the majority.  Of the four legislators on the commission, only Hickman is still serving in the same position.  The others were term-limited....

[T]he report concluded that its work “focused primarily on issues surrounding the reestablishment of parole, but parole is only one piece of a much larger conversation . . . The work of this commission is a beginning, not an end.”

The Judiciary Committee that received the report can introduce legislation to adopt its findings. Advocates have already submitted their own bill, LD 178, sponsored by Sen. Pinny Beebe-Center (D-Rockland), a concept draft.

Evangelos said the bill’s language will eventually include full implementation of the commission’s findings, including hearing eligibility for all inmates, and specific victim’s rights provisions.  He’s optimistic about passage of a strong bill, pointing to support from Rep. Billy Bob Faulkingham (R-Winterport), the House minority leader.  “We heard from supporters all over the country,” Evangelos said. “Of the dozens of people who testified, only two were opposed. People want a system that recognizes rehabilitation, and provides hope.”     

"Public support for second look sentencing: Is there a Shawshank redemption effect?"

The title of this post is the title of this new article by multiple authors just published in Criminology & Public Policy.  Here is its abstract

Research Summary

Washington, DC has implemented second look sentencing.  After serving a minimum of 15 years in prison, those convicted of a serious offense committed while under the age of 25 years can petition a judge to take a “second look” and potentially release them from incarceration.  To examine both global and specific support for second look sentencing, we embedded experiments in a 2021 MTurk survey and in a follow-up 2022 YouGov survey.  Two key findings emerged.  First, regardless of whether a crime was committed under 18 years or under 25 years of age, a majority of the public supported second look sentencing.  Opposition to the policy was low, even for petitioners convicted of murder.  Second, as revealed by vignette ratings, respondents were more likely to support release when a petitioner “signaled” their reform (e.g., completed a rehabilitation program, received a recommendation from the warden) and had the support of the victim (or their family).

Policy Implications

The critique of mass imprisonment has broadened from a focus on the level of incarceration to the inordinate length of sentences being served by some prisoners.  Policies are being proposed to reconsider these long sentences and to provide opportunities for earned release.  Second look sentencing in DC is one of these reforms.  Our research suggests that many members of the public believe in a “Shawshank redemption” effect — that those committing serious crimes as a teenager or young adult can mature into a “different person” and warrant a second look, with the possibility of early release if they have earned it.  A key issue is likely to be how much weight is accorded to the preference of victims or their families in any release decision.

Notable new grant of sentence reduction for California medical marijuana operator given nearly 22 years in federal prison back in 2008

I was pleased to learn late last night about a notable new ruling out of a federal district court in US  v. Scarmazzo, No. 1:06-cr-000342 DAD (E.D. Ca. Feb 2, 2023) (available for download below).  The case involves Luke Scarmazzo, a California medical marijuana dispensary operator who was federally prosecuted in the mid-2000s and was sentenced to 262 months in federal prison back in 2008.  As detailed in the 29-page opinion posted below, the federal district judge decision to reduce his sentence to time served (already more than 14 years).  The who sentence merits a full read for a host of reasons, and here are just a few key concluding passages: 

Having considered the parties’ briefing and reviewed the relevant case law, the undersigned’s current view is as follows.  This court clearly has the authority to reduce a mandatory minimum sentence in granting compassionate release.  Halvon 26 F.4th at 570. However, where, as here, the minimum mandatory sentence is still authorized by Congressionally enacted federal law that has not been subsequently subject to even non-retroactive amendment, the district court should not grant compassionate release based solely upon its conclusion that the originally imposed mandatory minimum sentence was unduly harsh.  See Thacker, 4 F.4th 569, 574. Nonetheless, this court has broad discretion to consider the harshness of the sentence in light of the current landscape in combination with other factors in determining whether extraordinary and compelling circumstances warrant the granting of compassionate release in a given case. Concepcion, 142 S. Ct. at 2396; Chen, 48 F.4th at 1095; Aruda, 993 F.3d at 802; Jones, 980 F.3d at 1111....

When considering the unique confluence of all of these circumstances — changes in the legal landscape with respect to federal enforcement of laws relating to distribution of marijuana in California; the significant disparity in the sentence actually served by co-defendant Montes and the 14+ years already served in prison by defendant Scarmazzo; defendant’s good behavior, meaningful employment, volunteer work, pursuit of educational opportunities during his imprisonment; defendant’s solid release plans including job offers and family support; the lack of danger posed to the community were he to be released; and defendant Scarmazzo’s difficult family circumstances that have developed during his imprisonment — the court is persuaded that the granting of the requested relief is appropriate at this point and is supported by both extraordinary and compelling circumstances and consideration of the sentencing factors set forth at 18 U.S.C. § 3553(a).

Download CR opinion in Scarmazzo case

Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order

A Fifth Circuit panel handed down today another big post-Bruen ruling declaring that the Second Amendment renders unconstitutional a federal prohibition on firearm possession for certain disfavored individuals.  The ruling today in US v. Rahimi, No. 21-11001 (5th Cir. Feb. 2, 2023) (available here), gets started this way:

The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal.  The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution.  In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), it is not.

Zackey Rahimi levies a facial challenge to § 922(g)(8). The district court and a prior panel upheld the statute, applying this court’s pre-Bruen precedent. See United States v. Rahimi, No. 21-11011, 2022 WL 2070392 at *1 n.1 (5th Cir. June 8, 2022).  Rahimi filed a petition for rehearing en banc; while the petition was pending, the Supreme Court decided Bruen.  The prior panel withdrew its opinion and requested supplemental briefing on the impact of that case on this one.  Considering the issue afresh, we conclude that Bruen requires us to re-evaluate our Second Amendment jurisprudence and that under Bruen, § 922(g)(8) fails to pass constitutional muster. We therefore reverse the district court’s ruling to the contrary and vacate Rahimi’s conviction.

Here are a few of many notable passages from the opinion:

Under the Government’s reading, Congress could remove “unordinary” or “irresponsible” or “nonlaw abiding” people — however expediently defined — from the scope of the Second Amendment. Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle? One easily gets the point: Neither Heller nor Bruen countenances such a malleable scope of the Second Amendment’s protections; to the contrary, the Supreme Court has made clear that “the Second Amendment right is exercised individually and belongs to all Americans,” Heller, 554 U.S. at 581.  Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal....

The Government fails to demonstrate that § 922(g)(8)’s restriction of the Second Amendment right fits within our Nation’s historical tradition of firearm regulation.  The Government’s proffered analogues falter under one or both of the metrics the Supreme Court articulated in Bruen as the baseline for measuring “relevantly similar” analogues: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” Id.  As a result, § 922(g)(8) falls outside the class of firearm regulations countenanced by the Second Amendment.

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement 
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen
• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
• Justice Department tells federal district judge "it is unnecessary ... to appoint an historian to assist" in resolving defendant's Second Amendment claim 
• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 
• En banc Third Circuit to reconsider constitutionality of § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 

UPDATE: This AP article about the Rahimi ruling provides a bit more context concerning the decision and also includes an official reaction from US Attorney General:

The U.S. Justice Department Thursday night issued the following statement from Attorney General Merrick B. Garland following the decision: “Nearly 30 years ago, Congress determined that a person who is subject to a court order that restrains him or her from threatening an intimate partner or child cannot lawfully possess a firearm.  Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional.  Accordingly, the Department will seek further review of the Fifth Circuit’s contrary decision.”

Seeking "further review," I suspect, will involve the Department of Justice first requesting en banc consideration of this panel decision in the Fifth Circuit.  If that does not happen, I would expect DOJ would then seek Supreme Court review.  Interestingly, were SCOTUS to take up this case (or any similar ones) anytime in 2023, we could reasonably expect another major Second Amendment ruling in the run up to the 2024 election.

Effective coverage of compassionate release challenges at the state level

Since the First Step Act made it much easier for federal prisoners to get their motions for sentence reductions before judges, discussion and debate (and litigation) over the federal approach to so-called compassionate release has been robust.   And, on-going consideration by the US Sentencing Commission of changes to its guidelines for these sentence reductions ensures that the federal debate will remain robust for the foreseeable future.

But, helpfully, the folks at Bolts have been doing the important work of making sure we do not lose sight of how these sorts of issues play out in state prisons systems.  Most recently, Bolts published an extended piece on these topics focused on Oregon, and it has published prior pieces focused on California and New York.  Here are the extended headlines of these pieces, along with links:

By Piper French, "In Oregon’s Prisons, Terminally Ill People Are Left with Little Recourse: Proposed legislation would ease the extraordinarily difficult road that incarcerated Oregonians face in securing compassionate release."

By Piper French, "California Passes Bill to Expand Prison Releases for Terminally Ill People: Few people leave prison under California’s compassionate release program, but a new measure could allow more incarcerated people to live out their final days at home."

By Victoria Law, "Prison Officials Routinely Deny Hearings to Terminally Ill New Yorkers: The frequent refusal to send medical parole cases to the state board has frustrated advocates and raises questions about the murky criteria preventing most sick people from making their case."

Justice Gorsuch dissents from denial of cert in "civil" tax case involving Excessive Fines challenge

The new SCOTUS order list released this morning appears to relist again (re-relist?) the set of acquitted conduct cases that I have been following closely (some background here and here).  In addition to that notable news, the order list also including an intriguing short dissent from the denial of cert in Toth v. US, a case involving a woman who failed to disclose a foreign bank account being "assessed a civil penalty of $2.1 million — half of the balance of Ms. Toth’s account — plus another $1 million in late fees and interest."   The First Circuit turned back an Excessive Fines challenge, and Justice Gorsuch explained why he found this troublesome (with some cites removed): 

It held that the Constitution’s protection against excessive fines did not apply to Ms. Toth’s case because the IRS’s assessment against her was “not tied to any criminal sanction” and served a “remedial” purpose.

This decision is difficult to reconcile with our precedents. We have recognized that the Excessive Fines Clause “traces its venerable lineage” to Magna Carta and the English Bill of Rights. Timbs v. Indiana, 586 U. S. ___, ___–___ (2019) (slip op., at 4–5).  We have held that “[p]rotection against excessive punitive economic sanctions” is “‘fundamental’” and “‘deeply rooted in this Nation’s history and tradition.’” Id., at ___ (slip op., at 7).  And all that would mean little if the government could evade constitutional scrutiny under the Clause’s terms by the simple expedient of fixing a “civil” label on the fines it imposes and declining to pursue any related “criminal” case.  Far from permitting that kind of maneuver, this Court has warned the Constitution guards against it.  See Austin v. United States, 509 U. S. 602, 610 (1993) (“[T]he question is not, as the United States would have it, whether [a monetary penalty] is civil or criminal, but rather whether it is punishment.”)....

Nor is a statutory penalty beneath constitutional notice because it serves a “remedial” purpose. Really, the notion of “nonpunitive penalties” is “a contradiction in terms.” United States v. Bajakajian, 524 U. S. 321, 346 (1998) (Kennedy, J., dissenting).  Just take this case.  The government did not calculate Ms. Toth’s penalty with reference to any losses or expenses it had incurred.  The government imposed its penalty to punish her and, in that way, deter others.  Even supposing, however, that Ms. Toth’s penalty bore both punitive and compensatory purposes, it would still merit constitutional review.  Under our cases a fine that serves even “in part to punish” is subject to analysis under the Excessive Fines Clause.  Austin, 509 U. S., at 610 (emphasis added).

Ms. Toth and her amici identify still more reasons to worry about the First Circuit’s decision.  They say it clashes with the approach many other courts have taken in similar cases.  Pet. for Cert. 18–25 (collecting cases).  They observe that it incentivizes governments to impose exorbitant civil penalties as a means of raising revenue. Id., at 25–30.  And they contend that it is difficult to square with the original understanding of the Eighth Amendment.  Brief for Professor Beth A. Colgan as Amicus Curiae on Pet. for Cert. 4–13.  For all these reasons, taking up this case would have been well worth our time.  As things stand, one can only hope that other lower courts will not repeat its mistakes.

Fourth Circuit panel finds district court abused its discretion when denying compassionate release to elderly drug offender

I just came across a notable ruling from last week by a Fourth Circuit panel in US v. Malone, No. 21-6242 (4th Cir. Jan. 5, 2023) (available here). In this case, the circuit court panel concludes that "the district court abused its discretion by failing to properly assess the following factors which would warrant Malone’s compassionate release: his ailing health, advanced age, and relevant 18 U.S.C. § 3553(a) factors." Here is one key paragraph from the opinion (emphasis in the original):

[W]e conclude that the district court abused its discretion by failing to recognize that the relevant § 3553(a) factors clearly favor release.  Having a Category I criminal history, Malone acknowledged the seriousness of his offense in prior motions to the court and has now served over fourteen years of his sentence.  While in prison, he participated in multiple classes and was also placed in a low-level prison camp.  His new extraordinary and compelling health-related circumstances have condemned him to a life filled with limitations.  Due to these circumstances, his potential for recidivism is low to none and he does not pose a threat to others or the community at large.  To affirm the district court’s denial would not only be a great disservice to Malone, but to any defendant with failing health seeking autonomy in their twilight.  There is a reason this is called compassionate release, after all.

Outgoing Pennsylvania Gov included high-profile artist in final batch of record-setting clemency grants

Pennsylvania Governor Tom Wolf has only a few more days in office, and he is closing out a tenure that has been record setting in the use of clemency authority.  This local article discusses that record as well as the high-profile clemency recipent in the last batch of grants:

Pennsylvania Governor Tom Wolf has pardoned Philadelphia rapper Meek Mill of his possession of drugs and weapons charges from 2008....

Wolf has issued more than twice the amount of pardons granted by any of his predecessors, with at least a quarter of them targeting non-violent marijuana offenses, his administration announced Thursday.

Wolf, a Democrat, signed his final 369 pardons this week, for a total of 2,540 since he took office in 2015. He surpassed Democratic Gov. Ed Rendell's record of 1,122 granted pardons. Of the pardons, 395 were part of the expedited review process for nonviolent marijuana-related offenses. Another 232 were part of the PA Marijuana Pardon Project, which accepted applications through the month of September.

"I have taken this process very seriously - reviewing and giving careful thought to each and every one of these 2,540 pardons and the lives they will impact," Wolf said in a statement. "Every single one of the Pennsylvanians who made it through the process truly deserves their second chance, and it's been my honor to grant it."

A pardon grants total forgiveness of the related criminal conviction and allows for expungement.

En banc Third Circuit to reconsider constitutionality of § 922(g)(1)'s felon-in-possession gun prohibition after Bruen

In this post two months ago, I noted the lengthy per curiam Third Circuit panel opinion in Range v. Garland, No. 21-2835 (3d Cir. Nov. 16, 2022) (available here), which concluded that a person convicted of state welfare fraud was "outside the class of people traditionally entitled to Second Amendment rights" and upheld felon disarmament under 18 U.S.C. § 922(g)(1) against a Second Amendment challenge.  This Range opinion was the first big circuit opinion addressing felon gun dispossession under federal law after the landmark Supreme Court Bruen ruling changes Second Amendment jurisprudence. 

But Second Amendment law is Range free: via this order entered this past Friday, the full Third Circuit decided that this panel opinion in Range is to be vacated as the case will be reheard en banc (with oral argument scheduled for February 15, 2023).  I do not know enough about the particulars of all the Third Circuit judges to make confident predictions about how Range will be resolved after en banc reconsideration.  But, generally speaking, full circuits do not take up issues en banc when most of the judges are generally content with the panel outcome.  Consequently, I can confidently predict this case is one worth watching closely and one that might make for some notable new Second Amendment law.

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement 
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen
• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 
• Justice Department tells federal district judge "it is unnecessary ... to appoint an historian to assist" in resolving defendant's Second Amendment claim 

Oregon Supreme Court gives retroactive effect to Ramos Sixth Amendment jury unanimity rule (two months after Louisiana Supreme Court refused to do so)

An opinion from the Oregon Supreme Court on this last working day of 2022 provides a notable bookend to the echoes of the Supreme Court's 2020 Ramos holding that the Sixth Amendment requires that a jury reach a unanimous guilty verdict to convict a defendant of a crime.  This local article reports on the basics and its import: 

Hundreds of felony convictions became invalid Friday after the Oregon Supreme Court struck down all non-unanimous jury verdicts reached before the practice was banned two years ago.

The retroactive ruling applies to all split-jury convictions reached during the 86-year stretch when Oregon was one of only two states, alongside Louisiana, to allow such verdicts.

In a concurring opinion, Justice Pro Tempore Richard Baldwin described the authorization of 10-2 and 11-1 jury verdicts in 1934 as a “self-inflicted injury” that was intended to minimize the voice of nonwhite jurors.

“We must understand that the passage of our non-unanimous jury-verdict law has not only caused great harm to people of color,” Baldwin wrote. “That unchecked bigotry also undermined the fundamental Sixth Amendment rights of all Oregonians for nearly a century.”

Voters approved Oregon’s non-unanimous jury system after a jury handed down a light sentence in a 1933 gangland murder trial, spurring racist and xenophobic newspaper coverage that blamed the compromise verdict on immigrant jurors, The Oregonian/OregonLive previously reported.

The U.S. Supreme Court outlawed divided verdicts in its landmark Ramos v. Louisiana decision in April 2020, but the order only applied to open cases and convictions that were actively being appealed when the ruling came down.

The ruling left the door open for states to make their own laws applying it retroactively. The Oregon legislature did not take that action, but people convicted by split juries began pursuing a retroactive ruling at the Oregon Appeals Court last year.

The Oregon Department of Justice says the Ramos ruling vacated more than 470 convictions with active appeals, meaning that prosecutors were required to essentially reboot each case from the beginning and either pursue a new trial, cut a plea deal or dismiss the charges.

The new state Supreme Court ruling means county district attorneys will have to make a similar decision for cases where the defendant had already exhausted a final appeal.

There are approximately 300 people, mostly in state prison, with exhausted appeals who have filed new litigation because they were convicted by a non-unanimous jury before the Ramos decision, according to Aliza Kaplan, a Lewis & Clark law professor and leader of the Criminal Justice Reform Clinic.

The full opinions from the Oregon Supreme Court in Watkins v. Ackley are available here.

Notably, Louisiana was the only other state with a history of non-unanimous criminal jury verdicts, and a couple of months ago its state Supreme Court decided against giving retroactive effect to Ramos (as this local press piece details).  The full opinion from the Louisiana Supreme Court in Louisiana v. Reddick are available here.

"Remorse, Relational Legal Consciousness, and the Reproduction of Carceral Logic"

The title of this post is the title of this paper authored by Kathryne M. Young and Hannah Chimowitz now available via SSRN. Here is its abstract:

One in seven people in prison in the US is serving a life sentence, and most of these “lifers” will someday be eligible for discretionary parole.  But little is known about a key aspect of parole decision-making: remorse assessments. Because remorse is a complex emotion that arises from past wrongdoing and unfolds over time, assessing the sincerity of another person’s remorse is neither a simple task of lie detection, nor of determining emotional authenticity. Instead, remorse involves numerous elements, including the relationship between a person’s past and present motivations, beliefs, and affective states.

To understand how parole board members make sense of remorse, we draw on in-depth interviews with parole commissioners in California, the state with the largest proportion of parole-eligible lifers.  We find that commissioners’ remorse assessments hinge on their perceptions of lifers’ relationships to law and carceral logic.  In this way, relational legal consciousness — specifically, second-order legal consciousness — functions as a stand-in for the impossible task of knowing another person’s heart or mind.  We distinguish relational from second-order legal consciousness and argue that understanding how they operate at parole hearings reveals the larger import of relational legal consciousness as a mechanism via which existing power relations are produced and reproduced, bridging the legal consciousness and law and emotion literatures.

Fingers crossed that SCOTUS might review acquitted conduct sentencing enhancements

Regular reader may vaguely recall some of my prior posts about the McClinton case before the US Supreme Court raising issues about the use of acquitted conduct at sentencing.  As I have detailed in posts months ago (and linked below), over the summer I had the pleasure of working with great lawyers at Squire Patton Boggs to file an amicus brief on the acquitted conduct issue in support of petitioner Dayonta McClinton.  (I blogged here about McClinton's case after the Seventh Circuit affirmed his 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case.)

After various delays, it appears that this case will finally be considered at next week's SCOTUS conference.  And that reality likely account for this new AP article headlined "Supreme Court asked to bar punishment for acquitted conduct."  Here are excerpts:

A jury convicted Dayonta McClinton of robbing a CVS pharmacy but acquitted him of murder. A judge gave McClinton an extra 13 years in prison for the killing anyway. In courtrooms across America, defendants get additional prison time for crimes that juries found they didn’t commit.

The Supreme Court is being asked, again, to put an end to the practice. It’s possible that the newest member of the court and a former federal public defender, Justice Ketanji Brown Jackson, could hold a pivotal vote. McClinton’s case and three others just like it are scheduled to be discussed when the justices next meet in private on Jan. 6.

Sentencing a defendant for what’s called “acquitted conduct” has gone on for years, based on a Supreme Court decision from the late 1990s. And the justices have turned down numerous appeals asking them to declare that the Constitution forbids it.

The closest the court came to taking up the issue was in 2014, when Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg provided three of the four votes necessary to hear an appeal.... Scalia and Ginsburg have since died, and Thomas remains on the court. But two other justices, Neil Gorsuch and Brett Kavanaugh, have voiced concerns while serving as appeals court judges.

I am hopeful, but still more than a bit pessimistic, about the possibility of 2023 being the year for SCOTUS to take up acquitted conduct sentencing.  If enough Justices are sincerely committed to orignalist principles, perhaps this issue will get to the Court's docket this coming year.  But I am certainly not holding my breath. 

A few recent of many, many prior related posts:

• "Acquitted Conduct Should Not Be Considered At Sentencing"
• A reminder of why "acquitted conduct" sentencing enhancements should be seen as a constitutional abomination 
• Judge Kavanaugh in 2009: "I think acquitted conduct should be barred from the guidelines calculation."
• Split Michigan Supreme Court finds due process precludes use of acquitted conduct at sentencing 
• "Acquitted. Then Sentenced."
• NJ Supreme Court holds, as a matter of state constitutional law, that "fundamental fairness" precludes sentence enhancement based on acquitted conduct 
• Can anyone estimate how many (thousands of) federal prison years have been based on acquitted conduct sentencing? 
• Might SCOTUS finally be ready to take up acquitted conduct sentencing enhancements?
• Hoping and pushing for SCOTUS finally taking up acquitted conduct sentencing enhancements 

Another round of holiday season clemency news

In this post a few days ago, I noted a few press stories about clemency grants from a few states.  At that time, I stated that it was somewhat surprising and quite disappointing that there were not more executive officials making more use of their clemency pens in this holiday season.  But it now seems I was a bit premature in my accounting, as now I see a few more state clemency stories in the news:

From California, "Newsom grants 10 pardons, including for drug crimes"

From Colorado, "Colorado governor commutes 4 inmates’ sentences, pardons 20 people, including state trooper who guarded Capitol"

From Massachusetts, "Whitmer grants 22 clemency requests, including 4 pardons"

From New York, "Hochul Grants Clemency to 13, Including a Domestic Violence Victim"

From Tennessee, "Gov. Lee Grants Executive Clemency to 16 Individuals"

From Texas, "Governor Abbott Grants Clemency To Two Texans Recommended By Texas Board Of Pardons And Paroles"

As I mentioned before, because I know of some clemency work that has not been covered in press pieces, I am sure there are more stories of seasonal grace than just what is covered in these press accounts.  Still, I view it as a real shame that we do not see many more clemency accounts from many more state during this time of year. 

En banc Sixth Circuit clings to anti-textual limits on what factors can be consider in § 3582(c)(1)(a) motions

The Supreme Court's ruling in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here), seemed to be a fairly clear direction to circuit court that it was not their job to make up non-textual limits to how district courts exercised sentencing discretion.  Here are just some of the key quotes, first discussed in this post, from the Supreme Court's opinion in Concepcion: 

It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained....

Federal courts historically have exercised this broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them.  That discretion also carries forward to later proceedings that may modify an original sentence.  Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence....

The only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution....

Because Concepcion seemingly makes plain that the "only limitation" on "the type of information a district court may consider in modifying a sentence" are those limits in the Constitution or that Congress has expressly set forth, motions for sentence reductions pursuant to § 3582(c)(1)(a) -- so-called compassionate release motions -- could certainly include consideration as a general matter all sorts of information about changes in laws and well as changes in fact that might justify a sentence reduction.  After all, Congress has only expressly provided in statutory text that one factor could not alone serve as the basis for sentence reduction under § 3582(c)(1)(a):  "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason." 28 USC § 994(t).

But, today the en banc Sixth Circuit has decided to double-down on its anti-textual approach to § 3582(c)(1)(a) by stating another categorical limit on what can be considered an extraordinary and compelling reason under 3582 in US v. McCall, No. 21-3400 (6th Cir. Dec 22, 2022) (available here).  The majority opinion in the split en banc ruling start and ends this way: 

David McCall, a federal prisoner with a long drug-dealing career, pleaded guilty to a conspiracy charge involving heroin possession and distribution in 2015.  Five years into his 235-month sentence, McCall moved for compassionate release under 18 U.S.C. § 3582(c)(1).  Although he cited several “extraordinary and compelling reasons” justifying a sentence reduction under that statute, the heart of his motion rested on our opinion in Havis.  Invoking that opinion, McCall argued that if he were sentenced today, he would receive a shorter sentence than he received in 2015.  The district court denied his motion, reasoning that a nonretroactive change in sentencing law could not amount to an “extraordinary and compelling” reason for a sentence reduction. We agree and affirm....

Nonretroactive legal developments do not factor into the extraordinary and compelling analysis. Full stop.

As I noted when discussing a prior Sixth Circuit panel ruling to this effect, there is absolutely nothing in the text of § 3582(c)(1)(a) that supports the contention that nonretroactive legal developments cannot ever factor into or generally constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors.  The majority here, presumably based on its own sense of policy, is seemingly eager to invent an extra-textual categorical limitation on the authority Congress gave to district courts to reduce sentences.  In other words, this is judicial lawmaking that is flagrantly disregarding both the statutory text enacted by Congress and the instructions of the Supreme Court in Concepcion.  Full Stop.

Isn't a 4% post-offense "faced legal scrutiny" rate worthy of praise ... even for Prez Trump's clemency grants?

This press report about an Oregon study of pandemic-related commutations notes that, among recipients who were released early, "18% were arrested within one year of their commutation, 8% were convicted of a new crime and 2% were reincarcerated."  The press report rightly indicated that these are relatively low rates based on a comparable cohort of individuals in Oregon.  

These Oregon commutations are not really a proper point of comparison, but I am not sure how best to make the point that it is to be expected that, among any significant cohort of clemency recipients, some number are likely to face some future legal difficulties.  But this new ABC News piece about Prez Trump's clemency recipients seeks to make a huge deal about a couple of handfuls of clemency recipients having since "faced legal scrutiny."  The piece is headlined "Trump-era pardon recipients are increasingly back in legal jeopardy," and here are excepts:

An ABC News analysis of the 238 people who were pardoned or had their sentences commuted during the Trump administration found at least ten who have since faced legal scrutiny -- either because they are under investigation, are charged with a crime, or are already convicted.  Legal experts call this recurring theme unprecedented -- but not entirely unexpected, given the former president's unorthodox approach to the pardon process....

Those pardoned by Trump during his term in office included dozens of friends and political allies.  The list included celebrities, lawmakers and former aides who had been convicted of crimes ranging from fraud to murder -- including four private military contractors who were in prison for murdering 17 Iraqi citizens, including two children, in a 2007 attack in Baghdad....

Recidivism rates from previous administrations' clemencies is opaque, as federal agencies don't keep tabs on clemency grantees after their release.  But in one study reviewing former President Barack Obama's 2014 clemency initiative, which led to sentence commutations for nearly 1,700 federal drug offenders, the independent and bipartisan U.S. Sentencing Commission found only three who had been rearrested by the end of 2017.  A Texas woman was rearrested on theft charges less than a year after earning an Obama commutation on her life sentence in 2016, and another Texan pleaded guilty to drug charges less than two years after earning a life sentence commutation under Obama's 2014 clemency initiative.

Based on news accounts and other available evidence, the number of clemency grantees who have gone on to commit additional crimes remains "incredibly low," Kupers said. For Trump-era pardons, however, experts said the numbers seem disproportionately high.

I am depressingly confident that more than three persons who received clemency from Prez Obama have "faced legal scrutiny" in recent years.  But I am even more confident that I do not want the media or others spending time developing questionable clemency "recidivism" statistics or otherwise engaging in partisan spit-fights about the rare clemency recipients who do not make good use of a second chance.  Rather, I wish ABC News and othe press outlets would spend a lot more time telling the encouraging stories of the hundred and throusands of clemency recipients who have made great use of their second chances. Focusing just on grants by Prez Trump, I am thinking about the great work being done in the arena of criminal justice reform by people like Alice Marie Johnson and Weldon Angelos and Amy Povah and David Safavian and Topeka Sam.  I am sure there so many more uplifting stories to tell about clemency recipients, but I am also sure the ghosts of Willie Hortonism still have not faded away.  

Lots of new data and a notable date from the US Sentencing Commission

The US Sentencing Commission yesterday published two new data reports: (1) this updated compassionate release data report and (2) this FY 2022 fourth quarter sentencing data.  There are lots of stories within all these data, though I still see the top stories to be those discussed here before: there are dramatic district variations in compassionate release grant rates and there are still relatively few "within guideline" sentences" being imposed by judges.

Specifically, on compassionate release, the three districts of Georgia show one notable example of variation: the Southern District of Georgia has granted only 8 out of 296 sentence reduction motions for a 2.7% grant rate; the Middle District of Georgia has granted only 4 out of 265 sentence reduction motions for a 1.5% grant rate; but the Northern District of Georgia has granted 80 out of 174 sentence reduction motions for a 46% grant rate.  On original sentencing more generally, this most recent USSC data show that, for all of FY 22, only 42% of all federal sentences have been imposed "Within Guideline Range" (and the number is under 28% for "Drug Trafficking" cases).

For various reasons and in various ways, all these data in some sense reflect the consequences of the US Sentencing Commission having to function without a quorum and being unable to amend any guidelines for nearly five years.  But, of course, we now have a fully loaded Commission, and the Commissions are clearly hard at work on guidelines reforms.  We know that because the Commission has now officially announced that it will have a public meeting on January 12, 2023, and that announcement notes the meeting agenda is to include "Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment."

Some holiday season news and notes about clemency (and the absence thereof)

The holiday season, especially because it is also lame-duck season, often brings some notable executive clemency stories.  Last week's decision by outgoing Oregon Gov to commute the state's whole death row is a notable example (details here).   But a quick news search reveals only a few other stories from from a few other states about some lower-profile seasonable clemency efforts:

From Arkansas, "Governor Asa Hutchinson Announces Intent to Grant Executive Clemency"

From Massachusetts, "Baker recommends another round of pardons"

From North Carolina, "NC Gov. Roy Cooper commutes six people’s sentences and pardons four others"

Because I know of some clemency work that has not been covered in press pieces, I am sure there are more stories of seasonal grace that just in these three states.  Still, I find it somewhat surprising and quite disappointing that there are not more executive officials making more use of their clemency pens.  And, as some recent commentary pieces highlight, I am not the only one hoping to see more clemency action:

Rachel E. Barkow & Mark Osler at the NY Daily News, "Biden’s cowardice on clemency"

From Reuven Blau at The City, "For ‘Clemency Season,’ Prisoner Advocates Want Hochul to Keep Promise All Year: Last December, the governor said she would change the way pardons and clemency applications were handled. But little has changed since."

From Chris Geidner at Bolts, "Landmark Push for Clemency in Oregon and Nevada Show Split Paths on Death Penalty"

From Eva Santiago at amNY, "Clemency is one way to improve safety which no one wants to talk about"

State judge blocks plans of Nevada Pardon Board to discuss possible commutation of all state death sentences

As reported in this local article, a "Carson City District Court judge Monday ruled the state Board of Parsons may not consider commuting every death sentence in Nevada at its Tuesday meeting." The six page ruling is available at this link, and the first sentence of the last paragraph of the opinion states: "The Board's planned action, should it be permitted to occur, will violate the Nevada Revised Statutes, the Nevada Administrative Code, and the Nevada Constituion." Here is more about the ruling and the context from the press report:

Judge James Wilson issued a writ of prohibition against the board and Gov. Steve Sisolak — who asked the board to consider the commutations — after the Washoe County district attorney’s office filed an emergency petition on Friday seeking to block the move.

Wilson ruled that the board had not properly notify the families of murder victims of its intent to commute the death sentences of the 57 people currently on death row, that those inmates had not exhausted all of their appeals and that they had not applied to the board to lessen their sentences. In addition, the board is required to consider each case individually, and cannot grant “categorical” clemencies, Wilson ruled.

“The Board’s proposed action would violate the Nevada Constitution by failing to provide (victim’s families) with reasonable notice of these public proceedings, so that they may exercise their constitutional right to be reasonably heard regarding the proposed commutation of 57 death sentences,” Wilson wrote. “Each victim is entitled to be treated with fairness, respect, dignity and the right to be reasonably heard at any hearings involving the commutation of sentence.”

In addition, the law requires a consideration of each individual case on its merits, which would be impossible at Tuesday’s meeting, Wilson wrote. “Equally evident in the plain meaning of the statutory and administrative code is the Board’s obligation to make an individualized determination in each clemency matter,” Wilson wrote. “Even if individual applications had been submitted for each of the 57 persons on death row, the type of individualized determination that is mandated by (state law) and (administrative regulations) cannot be reasonably accomplished at a single meeting of the Board.”

Finally, Wilson wrote, the board can’t do a mass commutation. State law “does not permit the Board to grant ‘categorial’ exemptions, as this would amount to the Board creating statutory exceptions to a form of punishment specifically provided for by the legislature. It is not the Board’s prerogative to amend statutes.”...

The controversy began last week, when Sisolak urged the board to consider commuting every death sentence in the state. The board, which decides clemency cases in Nevada, is made up of the governor, the attorney general and all seven members of the Nevada Supreme Court. That prompted the Washoe County district attorney’s office to file a motion to block the move on Friday....

Meanwhile, Gov.-elect Joe Lombardo, a career police officer who currently serves as the sheriff of Clark County, hailed the ruling: “I’m thankful to Judge James Wilson for upholding the law, and I’m grateful that he protected the voter-approved constitutional rights of crime victims and their families.  I’m relieved that justice has prevailed through Marsy’s Law,” Lombardo said in a statement.  Marsy’s Law was a 2018 voter-approved constitutional amendment that provided rights to crime victims, including to have a notice of all hearings, to attend those hearings and to speak about the proceedings.

In addition to Washoe County, the Clark County district attorney’s office asked the Nevada Supreme Court to block Tuesday’s hearings, making similar arguments to its counterpart in Washoe County. Not only that, but Jennifer Otremba, the mother of 15-year-old murder victim Alyssa Otremba, filed a similar petition with the Supreme Court on Monday, arguing that changing the board’s agenda without giving notice to victims’ families violated Marsy’s Law.  “The Pardons Board’s rushed effort to commute all capital sentences without the mandated notice and application has not only robbed Jennifer of her right to participate, it has also deprived the Pardons Board of jurisdiction to proceed,” Otremba’s petition said.

Otremba has addressed the Legislature multiple times in recent years as an opponent of abolishing the death penalty.  Her daughter’s killer, Javier Righetti, was sentenced to die for raping and stabbing the teenager more than 80 times in 2011, during the girl’s first week at Arbor View High School.

Bills to repeal the death penalty have been repeatedly introduced in the Legislature, but none have ever passed.  In 2021, a repeal bill passed the Assembly but died in the state Senate. Sisolak at the time said he was generally opposed to capital punishment, but wanted exceptions for especially heinous crimes such as the mass shooting that took place on 1 October in Las Vegas.

US Attorney General Garland releases new federal charging guidelines that include instructions to treat crack like powder cocaine

I thought the increasing prospects for statutory sentencing reforms from Congress might be the big federal sentencing news of this week, but this new Washington Post piece suggests that even bigger news is coming from the Department of Justice.   Here are the (incomplete) details from the first press piece:

Attorney General Merrick Garland on Friday instructed federal prosecutors to end sentencing disparities in cases involving the distribution of crack and powder cocaine after decades of law enforcement policy disproportionately treating crack offenders more punitively.  Garland’s move effectively seeks to eliminate the significant difference in the amount of powder cocaine relative to crack cocaine that is required to be in a suspect’s possession to trigger mandatory minimum federal sentences if convicted.

Critics of the longtime policy have said it is a relic of the Washington’s misguided war-on-drugs era that targeted Black and Brown communities, resulted in overpopulated prisons and strained federal and local resources at the expense of more effective strategies. Proponents of treating crack dealers more punitively have said that form of the drug is faster acting and capable of producing more intense highs. Under current federal policy, possession of 28 grams of crack cocaine would trigger a mandatory minimum prison sentence of five years, compared to 500 grams of powder cocaine.

Garland’s memo to the nation’s U.S. attorneys directs prosecutors to charge “pertinent statutory quantities that apply to powder cocaine” when pursuing crack cases and to “advocate for a sentence consistent with powder cocaine rather than crack cocaine.” The move, long sought by civil rights advocates, comes as the Equal Act, a legislative bill that would eliminate the disparity, has been stalled in the Senate amid objections from some Republicans after passing the House last year with bipartisan support.

Joe Biden, then a U.S. senator from Delaware, crafted the 1986 crime bill that initially set a 100-to-1 ratio between powder and crack cocaine to trigger mandatory minimum sentences. The Fair Sentencing Act 0f 2010 reduced the ratio to 18-to-1. The Biden administration endorsed the Equal Act last year....

Garland’s memo cited Justice Department testimony last year to the Senate Judiciary Committee that such a disparity “is simply not supported by science, as there are no significant pharmacological differences between the drugs: they are two forms of the same drug, with powder readily convertible into crack cocaine.”

During his confirmation hearing in February 2021, Garland told Sen. Cory Booker (D-N.J.), a co-sponsor of the Equal Act, that the inequitable sentencing in crack and powder cocaine cases had a “disparate impact on communities of color.” “There’s no justification for this, and we should end this,” Garland said at the time. He also said that powder cocaine “is as dangerous with respect to crime rates as crack cocaine, both of which have now been unfortunately overtaken by fentanyl and the opioids. But both of those are bad problems [and] equalizing penalties for crack and powder should have no difference with respect to our ability to fight violent crime.”

Garland aides said the new guidelines, which will take effect within 30 days, are part of a broader set of changes the attorney general is making to the Justice Department’s charging policies.  The department under Garland continues to support the passage of the Equal Act, aides said; unlike a legislative change to federal policy, they noted, Garland’s memo would not retroactively apply to previous convictions.

Jim Pasco, executive director of the National Fraternal Order of Police, said in an interview that he supported Garland’s directive. Though the group has opposed eliminating the sentencing disparity in the past, and it did not take a position on the Equal Act, Pasco said the police union’s views have evolved “as there’s been more clarity around the science.” Pasco said the Biden administration has supported police with additional resources to fight a rise in violent crime, and the union does not believe the policy changes on cocaine sentencing will adversely affect the efforts of law enforcement.

Garland’s action could face blowback from Republicans who have championed a bill that would reduce the sentencing disparity but not eliminate it entirely. In April, Sens. Charles E. Grassley (Iowa), Mike Lee (Utah), Roger Wicker (Miss.) and Lindsey O. Graham (S.C.) proposed legislation that would reduce the ratio of powder-to-crack cocaine that would trigger mandatory minimum sentences to 2.5-to-1. Unlike the Equal Act, however, that bill would achieve greater parity in part by increasing penalties for powder cocaine users.

Aggravatingly, as of 2pm EST, the new AG Garland crack charging memo is not available on the Justice Department's website.  I am very eager to see thsi memo, as well as whatever else appears in the "broader set of changes the attorney general is making to the Justice Department’s charging policies" before commenting at length.  But I will start by noting that federal law does provide at least one possible means for Garland’s memo to retroactively apply to some previous crack convictions: AG Garland could have prosecutors bring, and vocally and consistently support, motions for sentence reductions under 3582(c)(1)(A) for crack offenders who are still serving unduly long and unfair crack sentences based in the unjust disparity.

UPDATE:  A helpful reader made sure to get me copies of these new charging memos from AG Garland.  Here they are (with commentary to follow in coming days):

Download Attorney General Memorandum - General Department Policies Regarding Charging Pleas and Sentencing

Download Attorney General Memorandum - Additional Department Policies Regarding Charges Pleas and Sentencing in Drug Cases

District Court finds sexual assault by guard and assistance prosecuting perpetrator provide basis for sentence reduction under 3582(c)(1)(A)

A helpful reader alerted me to a notable new opinion from a federal district court in US v. Brice, No. 13-cr-206-2 (ED Pa. Dec. 15, 2022) (available fore download below), which finds “extraordinary and compelling” reasons warranting a sentence reduction in the defendant's sexual assault by a federal corrections officer and her assistance to prosecutors in bringing that officer to justice.  Here is hope the Brice opinion gets started as a key passage: 

This case presents a difficult question under the First Step Act for compassionate release and involves balancing the disturbing conduct underlying Defendant Rashidah Brice’s conviction with the extraordinary and compelling events that occurred after sentence was imposed.  For reasons explained below, I will partially grant Brice’s motion and reduce her sentence by 30 months but will not order her release as she has requested.  Although Brice’s circumstances are extraordinary and compelling and warrant a reduction from her original sentence, due to the serious and violent nature of her crimes and their effect on the victims, I find that releasing Brice now would not be consistent with the sentencing factors of 18 U.S.C. § 3553(a)....

It is entirely appropriate for me to consider how Brice responded to suffering abuse at the hands of her prison guards. The “broad discretion” federal courts have “to consider all relevant information” at a “proceeding[] that may modify an original sentence” is “bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence.”  Concepcion v. United States, 142 S. Ct. 2389, 2398 (2022). That Brice reacted to her trauma by agreeing to assist in the prosecution of her assailant supports a finding that Brice’s disproportionate suffering while in custody “warrant[s] . . . a reduction” in her sentence and that these circumstances are extraordinary and compelling.  Despite facing tremendous adversity both in her personal life before prison and at the hands of a prison guard, Brice responded by preventing more inmates from being abused, including cooperating in an investigation regarding individuals who had authority over her and could have retaliated against her.  I also note that Congress and the Department of Justice have determined that “[p]rison rape often goes unreported,” 34 U.S.C. § 30301(6), and “retaliation for reporting instances of sexual abuse and for cooperating with sexual abuse investigations is a serious concern in correctional facilities.” Department of Justice, National Standards To Prevent, Detect, and Respond to Prison Rape, 77 F.R. 37106-01 (June 20, 2012).

Download BRICE sentence reduction opinion

The helpful reader who brought this ruling to my attention indicated this may be "the first time a federal court has concluded that either of these circumstances warrants compassionate release." The reader also rightly stated that this decision "is particularly timely, as Congress and Department of Justice leadership have been pressing the Bureau of Prisons to seek compassionate release for women abused behind bars."

"Do Prison Conditions Change How Much Punishment A Sentence Carries Out? Lessons From Federal Sentence Reduction Rulings During the COVID-19 Pandemic"

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

A set of motions filed during the COVID-19 pandemic challenged federal judges to consider whether they should always view the duration of imprisonment — as contrasted with prison conditions — as the sole determinant of how much punishment a sentence carries out.  Under 18 U.S.C § 3582(c)(1)(A)(i), federal judges may “reduce” already imposed terms of imprisonment upon finding that “extraordinary and compelling reasons” warrant reductions.  Prior to 2019, the Bureau of Prisons (BOP) effectively controlled the scope of a catch-all subcategory of “Other Reasons” justifying sentence reductions.  The BOP used this authority almost exclusively for people who were in the final stages of terminal illness.  The First Step Act of 2018 (FSA) amended § 3582(c) in a manner that freed federal judges to decide for themselves what types of circumstances meet the “extraordinary and compelling reasons” standard.  The FSA also authorized people in federal custody to file motions on their own behalf, instead of permitting only the Director of the BOP to do so.

Roughly a year later, the COVID-19 pandemic prompted the increased use of lockdowns and other restrictions inside U.S. prisons.  Among the many thousands of people who moved for sentence reductions, several hundred argued that imprisonment with these new restrictions amounted to a greater punishment than pre-pandemic imprisonment.  This Article explores the lessons that the decisions adjudicating these motions offer for the design of sentencing laws — including second looks — as well as efforts to increase transparency surrounding life inside prisons.

Outgoing Oregon Gov commutes all 17 of state's remaining death sentences to LWOP

As detailed in this local article, "Gov. Kate Brown announced on Tuesday afternoon that she would commute the sentences of all 17 individuals on Oregon’s death row to life in prison without the possibility of parole, the latest in her end-of-term string of clemency decisions."  Here is more:

“I have long believed that justice is not advanced by taking a life, and the state should not be in the business of executing people — even if a terrible crime placed them in prison,” Brown said in a statement sent out in a press release.  “This is a value that many Oregonians share,” Brown said.  The governor also directed the Department of Corrections to dismantle the state’s death chamber.

Oregon has not executed anyone on death row for a quarter century and Brown continued the moratorium that former Gov. John Kitzhaber put in place in 2011.  Governor-elect Tina Kotek, who like Brown and Kitzhaber is a Democrat, is personally opposed to the death penalty based on her religious beliefs and said during the campaign that she would continue the moratorium.

Voters have gone back and forth on the death penalty over the years, abolishing and reinstating it repeatedly.  Voters’ most recent decision on the death penalty was in 1984, when they inserted it into the state Constitution....

In 2019, the Legislature passed a bill that limited the crimes that qualified for the death penalty by narrowing the definition of aggravated murder to killing two or more people as an act of organized terrorism; intentionally and with premeditation kilIing a child younger than 14; killing another person while locked up in jail or prison for a previous murder; or killing a police, correctional or probation officer....

Brown said in her statement Tuesday that commuting the sentences of people currently serving on Oregon’s death row was consistent with what she described as lawmakers’ “near abolition” of capital punishment.  “Unlike previous commutations I’ve granted to individuals who have demonstrated extraordinary growth and rehabilitation, this commutation is not based on any rehabilitative efforts by the individuals on death row,” Brown said.  “Instead, it reflects the recognition that the death penalty is immoral. It is an irreversible punishment that does not allow for correction; is wasteful of taxpayer dollars; does not make communities safer; and cannot be and never has been administered fairly and equitably.”

Twelve of the seventeen people on death row are white, three are Latino, one is American Indian or Alaska Native and one is Black, according to the governor’s office....

Rosemary Brewer, executive director of the Oregon Crime Victims Law Center, said it was her understanding that staff at the Oregon Department of Justice Crime Victim and Survivor Services Division had been working all day Tuesday to notify family members and had reached all of the families impacted by the death row commutations.  A spokesperson for the governor confirmed that the DOJ division handled notification. However, Brewer said the governor should have given families more advance notice of her decision.

“I think the victims should have been told about this so they had some time to prepare for it,” Brewer said.  “These are horrific cases that left completely devastated families.  They’re preparing for the holidays and all of a sudden, they see in the (newspaper) that the person who traumatized — devastated — their families had their death sentence commuted.”...

Advocates including the Oregon Justice Resource Center pushed for the governor to commute all death row sentences for years.  On Tuesday, the center’s executive director Bobbin Singh said in a statement that Brown “has made the right choice for Oregon in commuting these death sentences and dismantling the death chamber.”...

Brown’s clemency actions, which included early release for people deemed at risk of serious health impacts from COVID-19 and inmates who helped fight Oregon’s catastrophic 2020 wildfires, have freed roughly 1,000 people from state prisons.  The Oregonian/OregonLive asked Brown’s spokespeople on Friday for the total number of people for whom the governor had issued pardons and commuted sentences.  On Tuesday, press secretary Liz Merah responded that the governor has commuted the sentences of a total of 1,189 incarcerated people.

The governor also pardoned approximately 45,000 people this year for their marijuana possession convictions, although that did not result in anyone being freed from prison because no one in Oregon was incarcerated for simple possession of an ounce or less of marijuana. And she issued 77 other pardons for crimes that the governor’s office did not identify.

Oregon Senate Republican Leader Tim Knopp, R-Bend, released a statement late Tuesday asking whether the people of Oregon had voted to end the death penalty.  “I don’t recall that happening,” he said.  “This is another example of the Governor and the Democrats not abiding by the wishes of Oregonians.  Even in the final days of her term, Brown continues to disrespect victims of the most violent crimes.”

The official press release from Gov. Brown's office, titled "Governor Kate Brown Commutes Oregon's Death Row," is available at this link.

"No Sense of Decency"

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

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.”  In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left.  Criticism of the doctrine has been fierce, but largely academic until recent years.  Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day.  For many, the test is seen as a lightning rod over constitutional interpretation, as its very language embodies living constitutionalism and seems to reject originalism.

Now an evaluation of the possible replacements for the “evolving standards of decency” test takes on greater urgency. Appellate court judges have begun to press the Court to replace or reconsider the test.  Three Justices have signaled their willingness to overrule the test, and at least two more are likely to join them.  Given that stare decisis does not appear to be a formidable constraint on the current Court, the time has come to grapple with a new reality for the Eighth Amendment.

This Article begins with a comprehensive evaluation of the tests that both originalist and non-originalist scholars have proposed as replacements.  It contends that none of the proposed tests eliminate the shortcomings of the evolving standards of decency tests, then concludes that originalism is an unsuitable methodology for interpreting the Eighth Amendment.  The Article then proposes a new test — grounded in the structural harms of the modern criminal punishment system — that constrains judicial discretion in line with the constitutional values of antisubordination and human dignity.  This new test addresses the flaws of the evolving standards of decency test without rendering Eighth Amendment jurisprudence a dead letter.

Ohio Supreme Court splits over ineffectiveness of counsel who "failed to explain neonaticide" at sentencing

The Ohio Supreme Court today issued an notable split decision that ultimately rules that a notable defendant had received ineffective assistance of counsel when sentenced to life without parole in a sad case of neonaticide.  The ruling in State v. Weaver, Slip Op. No. 2022-Ohio-4371 (Oh. Dec. 8, 2023) (available here) is very well summarized at the start of this official court summary:

The Supreme Court of Ohio has ordered a new sentencing hearing for a former college student sentenced to life in prison for the murder of her newborn baby in the bathroom of her sorority house.  In 4-3 decision, the Supreme Court ruled that Emile Weaver received ineffective assistance of counsel when her lawyer failed to explain neonaticide, which is the murder of an infant within 24 hours of birth, at her sentencing hearing and how neonaticide is “not considered a premeditated act” but rather an act “within the context of extreme panic.”

The decision reversed the Fifth District Court of Appeals, which found the Muskingum County Common Pleas Court did not abuse its discretion by denying Weaver’s claim that her counsel was ineffective.  Weaver filed a petition for postconviction relief, alleging that her lawyer failed to present a complete explanation of neonaticide during sentencing which could have led to a less severe punishment.  The same judge who sentenced Weaver to life in prison without the possibility of parole denied her petition.  The trial judge discredited an expert witness who tried to explain Weaver’s condition.

Writing for the Court majority, Chief Justice Maureen O’Connor stated that the trial judge demonstrated an arbitrary and unreasonable attitude toward the evidence of neonaticide and pregnancy-negation syndrome. “Not only did the trial court misunderstand the evidence pertaining to neonaticide and pregnancy-negation syndrome, but it demonstrated a willful refusal to consider such evidence,” Chief Justice O’Connor wrote.

The Court remanded the case to the trial court with instructions that another trial judge conduct the sentencing.  Justices Michael P. Donnelly, Melody Stewart, and Jennifer Brunner joined the chief justice’s opinion.

In a dissenting opinion, Justice R. Patrick DeWine wrote that Weaver’s lawyer was not ineffective for failing to explain why she would commit neonaticide.  He noted that Weaver’s defense at trial was that she did not kill her baby, but rather that the baby died of natural causes.  Expecting the defense to explain how Weaver suffered from pregnancy negation would undermine the argument that she did not kill the baby, he concluded.  Justices Sharon L. Kennedy and Patrick F. Fischer joined Justice DeWine’s opinion.

Here are the basic details of the crimes as decribed by in the majority opinion:

In the fall of 2014, Weaver returned as a sophomore to Muskingum University in New Concord, Ohio, where she lived in a campus sorority house.  After Weaver visited a wellness center to obtain birth control, the center reached out to her to let her know that she was pregnant, but Weaver testified that she had never looked at or read the message from the center.  Weaver also testified that she did not “completely” believe that she was pregnant, because she did not show the normal signs of pregnancy — specifically, she did not (1) gain weight, (2) have morning sickness or exhaustion, or (3) stop menstruating.  Throughout her pregnancy, Weaver consistently denied that she was pregnant when either her sorority sisters or other people asked, and she never told her mother.  At trial, Weaver explained that she had lied about her pregnancy because she was scared, “felt like [she] had no one,” and was “worried about * * * getting in trouble.”  Weaver did, however, discuss her pregnancy with her boyfriend — whom she had a “rocky relationship” with — and he encouraged her not to tell anyone.  Weaver described him as “controlling and judgmental,” as well as “abusive.”

On April 22, 2015, believing that she was having a bowel movement, Weaver went to the sorority-house bathroom.  Shortly thereafter, she realized that she was in labor and silently, without assistance, delivered the baby into the toilet. Later that day, two sorority members discovered the baby in a trash bag lying next to the sorority house.

En banc Eleventh Circuit now gives broad reading to FIRST-STEP-amended mandatory-minimum safety valve provision

Last year in posts here and here, I spotlighted a significant Ninth Circuit ruling in US v. Lopez, No. 19-50305 (9th Cir. May 21, 2021) (available here), which interpreted the FIRST-STEP-amended statutory safety valve to enable more federal drug defendants to benefit from its authorization for below mandatory-minimum sentences.  But, as I noted in this post, days earlier in US v. Garcon, No. 19-14650 (11th Cir. May 18, 2021) (available here), an Eleventh Circuit panel reach an opposite interpretation of this statutory language.  The Garcon ruling went en banc, and today resulted in this set of opinions running 85 pages with an array of opinions from a court split 7-5.  Writing for six judges, Chief Judge (and former USSC Acting Chair) Bill Pryor start the opinion for the Eleventh Circuit this way:

The question presented in this appeal of a grant of safety-valve relief is whether, in the First Step Act, the word “and” means “and.” The Act empowers a court to grant a criminal defendant relief from a mandatory minimum sentence, but that relief is available only if “the defendant does not have” “more than 4 criminal history points,” “a prior 3-point offense[,] . . . and . . . a prior 2-point violent offense.” 18 U.S.C. § 3553(f)(1) (emphasis added). Julian Garcon, who pleaded guilty to attempting to possess 500 grams or more of cocaine with intent to distribute, has a prior 3-point offense but does not have more than 4 criminal history points or a prior 2-point violent offense. The district court concluded that Garcon remained eligible for relief under the Act because he did not have all three characteristics. We agree. Because the conjunctive “and” joins together the enumerated characteristics, a defendant must have all three before he is ineligible for relief.  We affirm.

Sobering numbers from "mass" marijuana pardon efforts in Pennsylvania

In this post over at my marijuana blog a few months ago, I flagged the announcement of outgoing Pennsylvania Gov Tom Wolf to create a large-scale project, called the Pennsylvania Marijuana Pardon Project, to enable people with certain low-level convictions to submit an application online for an official pardon from the state.  Subsequent reports about this effort noted that many thousands of people had submitted pardon applications.  But this new local article, headlined "Thousands applied, but fewer than 250 qualified for Wolf’s marijuana pardon," spotlights how the devil is often in the details in this arena:

When announcing the marijuana pardon project earlier this year, Gov. Tom Wolf said it had the potential to help thousands of Pennsylvanians clear their records. But it has fallen well short of that goal. More than 3,500 people applied for the program, aimed at wiping out low-level marijuana convictions in a one-time mass act of clemency. Fewer than 250, however, will have an opportunity to clear their record later this month.

On Thursday, the Pennsylvania Board of Pardons voted whether to move forward on more than 2,600 applications from the project. Of those, 231 were approved and will go for a final vote by the board on December 16. Any of the cases that make it through that round, will go on to Wolf to grant the pardon. Another 2,002 applications were denied Thursday because they did not meet the requirements of the project and 434 were held under advisement, meaning the board can vote on them at a later date.

The program only applied to people who were convicted of possession of a small amount of marijuana and excluded anyone who had any additional criminal convictions on their record. Advocates said the narrowness of the program was a significant concern for how effective the program could be.

“Often cannabis consumers get multiple convictions when they are arrested that first time,” said Chris Goldstein, NORML’s Pennsylvania, New Jersey and Delaware regional organizer. “They get a paraphernalia charge, and they get a possession charge all at once. You would have to essentially lead a police-free life other than that one marijuana encounter to qualify.”

Goldstein said the fact that program had a very short window for people to apply also likely limited its impact. Wolf announced the program on September 1 and people had until September 30 to apply....

Goldstein said more than 13,000 people were arrested for possession of a small amount of marijuana in 2021. About 10 percent of those people wind up with a conviction for the offense. Most others are either dismissed or plead out to a lower level crime.

More than 1,150 people were sentenced in 2018 with possession of a small amount of marijuana as the highest charge in their case, according to the latest year of data available from the Pennsylvania Sentencing Commission.

While Goldstein said he was disappointed that only a fraction of the people affected will receive a pardon through the program, clemency for those people will mean less barriers to housing, employment and hopefully improve their lives. “I’m sure to the 231 people who went through this process, got approved, do qualify, when they get the pardon certificate in their hands, it will matter in their lives,” he said. “They had a reason they wanted this pardon. Whether they wanted it for their own person justice, to clear their own name, or they needed it as answer to their record, those pardons will matter.”

Elaboration of dissent from SCOTUS denial of stay before Missouri execution

I flagged in this post the notable pre-execution litigation in Missouri before the execution of Kevin Johnson on Tuesday evening.  A helpful colleague made sure I did not miss this four-page opinion, released yesterday and authored by Justic Jackson and joined by Justice Sotomayor, dissenting from the Supreme Court's denial of the application for a stay.  Here is how it begins and a key paragraph within:

We denied Kevin Johnson’s application for an emergency stay of his execution on November 29, 2022, and the State of Missouri has carried out that penalty.  Now, one day later, I write to explain my vote to grant his stay request.  For the reasons that follow, in my view, there was a likelihood that Johnson would have succeeded on the merits of his federal due process claim, and it was clear that he would (and obviously did) suffer irreparable harm absent a stay.  I also believe that the equities weighed in Johnson’s favor....

In short, a State cannot provide a process for postconviction review (like that outlined in §547.031) and then arbitrarily refuse to follow the prescribed procedures.  But that appears to be what happened in this case, insofar as §547.031 was properly invoked through the filing of a motion to vacate but the Missouri Supreme Court determined that the reviewing court did not need to hold the mandatory hearing that allows for the presentation of evidence related to that motion, because, regardless, there was insufficient evidence to sustain the motion.  In my view, this reading of §547.031 was so fundamentally flawed, and so at odds with basic due process principles, that Johnson was likely to succeed in establishing that the procedures afforded in connection with the §547.03 motion amounted to a Fourteenth Amendment violation.

Prior related posts:

• Missouri Supreme Court considering [UPDATE: rejects] special prosecutor's motion to vacate death sentence due to "racist prosecution techniques" 
• Missouri completes execution after SCOTUS rejects final stay appeal 

Has anyone tracked how often district judges recuse from resentencing?

The question in the title of this post in prompted by this interesting recusal order brought to my attention by Howard Bashman (and blogged here at How Appealing).  In the 24-page order, U.S. District Judge Larry Alan Burns explains why he has decided to recuse from two resentencings after Ninth Circuit opinions ruled that two drug offenders had to be given "minor role" reductions under the federal sentencing guidelines.  Here is part of the opinion's concluding section (with a few cites removed):

Where the question embodies the kind of discretion traditionally exercised by a sentencing court — i.e., making findings concerning a defendant’s role in an offense and level of culpability — the judgment is entitled to substantial deference.  Substantial deference is especially appropriate when factual nuances may closely guide the legal decision to be made, or where the legal result depends heavily on an understanding of the significance of case-specific details that have been gained through experience with trials and sentencings.  Buford, 532 U.S. at 64–65.  This is precisely the kind of determination that must be made in resentencing Sandra and Jesus Rodriguez.

The Mandates arrived at the judgment that two practiced drug traffickers, who consciously and intentionally joined plans to import bulk quantities of methamphetamine and heroin into the United States, and who were promised thousands of dollars in payment for their participation, qualify as “minor participants” in the offense of simple drug importation.  My twenty-five years of grounded, trial-level experience handling border drug smuggling cases opposes the logic and impact of that conclusion....

In this Order, I have attempted to explain why I continue to believe and would find that the Rodriguez defendants are “average” border drug smugglers — no better, no worse. But my explanation and probable findings — even if not expressly precluded by the law of the case and the rule of mandate — are most certainly inconsistent with the expansive “spirit” of the Mandates, which unsubtly bespeaks the desired conclusion of the court of appeals.  The Ninth Circuit has said that in situations like this, where the original sentencing judge on remand would “have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous,” the judge should recuse.  United States v. Arnett, 628 F.2d 1162,1165 (9th Cir. 1979).  Because I find myself unable to brush aside my insights, experience, and long-held conclusions about what “average” border drug smugglers know and how they operate, I respectfully recuse from further involvement in these cases.

Howard Bashman says he "suspect that this sort of recusal happens quite rarely," and I suspect he is right.  But the real rarity here is likely the lengthy explanation of the reasoning behind the recusal, and I wonder if somewhat lower-key resentencing recusals might be a bit more common.

Following Prez Biden's lead, Oregon Gov pardons over 47,000 marijuana possession convictions

As reported in this local artcle, around "45,000 people previously convicted of marijuana possession in Oregon will be pardoned and $14 million in fines forgiven, the Governor's Office announced Monday."  Here is more:

Gov. Kate Brown is pardoning the 47,144 convictions for possession of one ounce or less of marijuana going back several decades. Criminal convictions, even for possessing small amounts of marijuana that would be legal now, can be barriers to employment, housing and education.

“No one deserves to be forever saddled with the impacts of a conviction for simple possession of marijuana — a crime that is no longer on the books in Oregon,” Brown said in a statement Monday. “Oregonians should never face housing insecurity, employment barriers, and educational obstacles as a result of doing something that is now completely legal, and has been for years. My pardon will remove these hardships." She noted that while all Oregonians use marijuana at similar rates, Black and Latino people have been arrested, prosecuted and convicted of marijuana possession at disproportionate rates.

Officials with the American Civil Liberties Union applauded Brown’s action on Monday, saying her move followed an important step by President Joe Biden last month to pardon thousands of people nationwide of federal convictions for marijuana possession. Officials with the ACLU of Oregon said Brown is the first governor take this action on pardoning. Sandy Chung, executive director of ACLU of Oregon, said they were grateful for Brown's use of clemency to address the state's outdated and racially-biased practices, including policies from the failed "War on Drugs."...

According to the Governor's Office, the pardon applies to electronically available Oregon convictions for possession of one ounce or less of marijuana in pre-2016 cases in which the person was 21 years of age or older, where this was the only charge, and where there were no victims. This pardon does not apply to any other offense related to marijuana or other controlled substances. More information can be found online.

Following Brown's pardon, the Oregon Judicial Department will ensure that all court records associated with the pardoned offenses are sealed. About $14 million in unpaid court fines and fees associated with the pardoned convictions will be forgiven. The pardoned marijuana convictions will no longer show up on background checks of public court records, but the conviction may show up on background checks conducted by law enforcement officials or licensing authorities as a pardoned conviction....

Jessica Maravilla, policy director of ACLU of Oregon, said by eliminating $14 million in fines and fees, Brown is breaking down a massive barrier many have to housing, schooling and jobs. "For low-income communities and people of color, they can result in continued entanglement in the criminal legal system," she said. "The Governor’s forgiveness of $14,000,000 in fines and fees is a significant step in addressing unjust systemic burdens created by prior convictions — especially, in this case, for a crime that no longer exists.”

The official statement from Gov Brown's office is available at this link.

Tennessee Supreme Court finds state's uniquely harsh automatic life sentences unconstitutional for juvenile offenders

On Friday of last week, as summarized at this court webpage, the Tennessee Supreme Court issued a set of notable opinions addressing the constitutionality of the state's automatic life sentencing scheme for juveniles.  Here is, from the court website, links to: "the court's opinion in Tennessee v. Tyshon Booker, authored by Justice Sharon G. Lee and joined by Special Justice William C. Koch, Jr., the separate opinion concurring in the judgment authored by Justice Holly Kirby, and the dissenting opinion authored by Justice Jeff Bivins and joined by Chief Justice Roger Page."  Together, all the opinions run more than 50+ dense pages; they are all worth a read and cannot be easily summarized in a blog post.  But I can provide a poor-man's account (and also link to this local press coverage).

As explained in these opinions, Tennessee law requires a minimum term of 51 years in prison before parole consideration for murderers even for juveniles.  As the opinion for the court explains:  "Compared to the other forty-nine states, Tennessee is a clear outlier in its sentencing of juvenile homicide offenders.  So much so that Tennessee’s life sentence when automatically imposed on a juvenile is the harshest of any sentence in the country.  No one, including the dissent, disputes that a juvenile offender serving a life sentence in Tennessee is incarcerated longer than juvenile offenders serving life sentences in other states."

And so, decides the majority:

Tennessee is out of step with the rest of the country in the severity of sentences imposed on juvenile homicide offenders.  Automatically imposing a fifty-one-year-minimum life sentence on a juvenile offender without regard to the juvenile’s age and attendant circumstances can, for some juveniles, offend contemporary standards of decency....

Tennessee’s automatic life sentence when imposed on juvenile homicide offenders is an outlier when compared with the other forty-nine states, it lacks individualized sentencing which serves as a bulwark against disproportionate punishment, and it goes beyond what is necessary to accomplish legitimate penological objectives.  For these reasons, we hold that Tennessee’s automatic life sentence with a minimum of fifty-one years when imposed on juveniles violates the Eighth Amendment.

As for the remedy:

We exercise judicial restraint when remedying the unconstitutionality of the current statutory scheme for sentencing juvenile homicide offenders.  Rather than creating a new sentencing scheme or resentencing Mr. Booker, we apply the sentencing policy adopted by the General Assembly in its previous enactment of section 40-35-501.... Under this unrepealed statute, Mr. Booker remains sentenced to a sixty-year prison term and is eligible for, although not guaranteed, supervised release on parole after serving between twenty-five and thirty-six years.  Thus, at the appropriate time, Mr. Booker will receive an individualized parole hearing in which his age, rehabilitation, and other circumstances will be considered.

The dissenting opinion starts this way:

I respectfully dissent from the result reached by a majority of the Court today.  Quite frankly, I find the policy adopted as a result of the plurality opinion of Justice Lee and the concurring opinion of Justice Kirby to be sound.  However, it is just that.  It is a policy decision by which the majority today has pushed aside appropriate confines of judicial restraint and applied an evolving standards of decency/independent judgment analysis that impermissibly moves the Court into an area reserved to the legislative branch under the United States and Tennessee Constitutions.

Nebraska Supreme Court upholds constitutionality of judges imposing death sentences after jury fact-finding

I just recently saw an interesting and lengthy new ruling from the Nebraska Supreme Court rejecting an array of procedural challenges to the state's capital sentencing scheme. Here is how the unanimous 60+ page opinon in State v. Trail, 312 Neb. 843 (Neb. Nov. 10, 2022) (available here), gets started:

The defendant was convicted by a jury of murder in the first degree and criminal conspiracy to commit first degree murder.  He was also convicted, pursuant to a plea, of improper disposal of human skeletal remains.  A three-judge panel sentenced the defendant to death.  The defendant asserts on appeal that the three-judge panel erred in determining the sentence of death was not excessive or disproportionate to the penalty imposed in similar cases. Alternatively, he argues Nebraska’s death penalty scheme is unconstitutional because it allows a panel of judges rather than a jury to make findings of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist which approach or exceed the weight given to the aggravating circumstances. The defendant also challenges the constitutionality of death qualifying the potential jurors, arguing that it creates a conviction-prone jury.  Finally, the defendant challenges the denial of his pretrial motion to sever the conspiracy and murder charges, the court’s release of the victim’s mother from sequestration after she testified, the denial of his motion for a mistrial after a verbal outburst and act of self-harm in front of the jury, and the denial of a motion for a new trial after evidence was submitted allegedly demonstrating the selfharm would not have occurred but for the alleged misconduct of jail staff.  We affirm.

Here are a few passages from near the end of this Trail opinion summarizing its constitutional conclusions:

In several cases, we have rejected the argument that because the right to a jury determination is limited to guilt or innocence of the crimes charged and the determination of the aggravating circumstances, Nebraska’s sentencing scheme is unconstitutional under the 6th and 14th Amendments to the U.S. Constitution and article I, §§ 3 and 6, of the Nebraska Constitution.  In State v. Gales, we explained that Apprendi and Ring do not stand for the proposition that a jury, rather than a judge or judges, must make the sentencing determinations listed under § 29-2522.  Rather, Apprendi and Ring affected only the narrow issue of whether there is a Sixth Amendment right to have a jury determine the existence of any aggravating circumstance upon which a capital sentence is based....  By leaving to the three-judge panel the ultimate lifeor-death decision upon making the selection decisions of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist that approach or exceed the weight given to the aggravating circumstances, Nebraska’s sentencing scheme does not violate the Sixth Amendment right to a jury trial or article I, § 6, of the Nebraska Constitution.....

In State v. Mata, we rejected the defendant’s argument that a system wherein a three-judge panel weighs the aggravating and mitigating circumstances without guidance from the jury is arbitrary and capricious under the 8th and 14th Amendments.  In State v. Hessler,  we rejected the defendant’s argument under the Eighth Amendment that a sentencing panel is not in as good of a position as the jury to assign a weight to the aggravating circumstances, to weigh aggravating circumstances against mitigating circumstances, or to determine the sentence. While Trail’s 8th Amendment arguments are somewhat different from those addressed in Mata and Hessler, he presents no reason to depart from our holdings in those cases that Nebraska’s statutory scheme, delegating to the three-judge panel determinations of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist that approach or exceed the weight given to the aggravating circumstances, does not violate the 8th and 14th Amendments to the U.S. Constitution or article I, § 9, of the Nebraska Constitution.

Three Justices dissent from the denial of cert in Ohio capital case reversed by Sixth Circuit

This morning's Supreme Court order list is most notable for a 14-page dissent from the denial of cert in a capital case from Ohio, Shoop v. Cunningham.  The dissent was authored by Justice Thomas and joined by Justices Alito and Gorsuch.  Here is how it gets started:

In 2002, respondent Jeronique Cunningham concluded an armed robbery of his drug dealer with a spray of bullets that killed a teenager and a toddler.  An Ohio jury convicted him of capital murder, and the trial court sentenced him to death.  Twenty years later, the Sixth Circuit ordered an evidentiary hearing to determine whether the foreperson’s presence on the jury deprived Cunningham of due process — either because the foreperson received prejudicial outside information about Cunningham or because she was biased by an undisclosed relationship with the victims’ families.  In analyzing the first claim, the Sixth Circuit once again flouted the deferential standard of review demanded by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).  In analyzing the second claim, the Sixth Circuit applied an incorrect framework to justify a fishing expedition based on allegations with no admissible factual foundation.

To correct these manifest abuses of the Sixth Circuit’s habeas jurisdiction, I would grant Ohio’s petition and summarily reverse the judgment below.  Therefore, I respectfully dissent from denial of certiorari.

After getting 241-year sentence as juvenile, Bobby Bostic released on parole after 27 years in prison

In this post late last year, I provided an update on the case of Bobby Bostic, who had been sentenced in Missouri as a teenager in the 1990s to 241 years in prison.  Because MIssouri law was changed, Bostic was able to secure parole after serving over a quarter century behind bars.  And this past week, as reported in this lengthy local piece, Bostic was formally released on parole.  Here are excerpts from the piece with some legal context

Standing on the Missouri Capitol steps moments after being released from prison, Bobby Bostic said the first place he planned to visit was his mother’s grave in St. Louis — a city he’d last freely walked in 1995. “I’m a free man all because of you all who supported me,” Bostic, 43, said Wednesday morning while surrounded by friends and family donning matching sweatshirts that read “Bobby Bostic is Free.”

“While I cannot change what happened so many years ago,” he said, “I will mentor and teach young people to take a different path than I did when I was a young child myself.”

Bostic was imprisoned in 1995 for a crime he committed when he was 16, when he was an accomplice in two armed robberies in St. Louis.  Now-retired St. Louis judge Evelyn Baker sentenced Bostic to 241 years, with the first chance at parole being when Bostic turned 112.

Baker sentenced him to die in prison without giving him an official life sentence. “Your mandatory date to go in front of the parole board will be the year 2201,” Baker told Bostic at his sentencing date in 1997. “Nobody in this room is going to be alive in the year 2201.”

By sentencing him in this way, Bostic wasn’t protected under a 2010 U.S. Supreme Court ruling that mandated parole hearings for juveniles who’ve been sentenced to life without parole.  Bostic’s case fell into a legal loophole that existed in Missouri and only a few other states.  Missouri courts had held that this mandate didn’t apply to juveniles like Bostic, who received a sentence for multiple offenses that added up to life in prison.  All of Bostic’s legal remedies were exhausted by 2018, when his petitions to both the Missouri Supreme Court and U.S. Supreme Court were denied without comment.

But then in 2021, Republican Rep. Nick Schroer of O’Fallon successfully pushed legislation to allow juveniles who have been sentenced to 15 years or more to be eligible for parole after serving 15 years in prison.  Bostic is one of about 100 people who got a new chance at parole after the law passed....

Baker, who came to regret how she handled the case in 1995, became one of Bostic’s biggest allies, appearing as his advocate in front of the parole board last year.  “Bobby should’ve had a chance,” Baker said Wednesday, explaining that only after she sentenced him did she learn that teenagers’ brains aren’t fully developed.  “I had no awareness at that time that Bobby, by being certified to be tried as an adult, did not become an adult,” Baker said. “He was still a 16-year-old boy.”

On Dec. 12, 1995, Bostic and then 18-year-old Donald Hutson robbed a group of six people at gunpoint who were delivering Christmas gifts to a needy family in St. Louis, according to the ACLU’s 2017 petition to the U.S. Supreme Court.  During the robbery, two people were shot at.  One received a tetanus shot because the gunshot grazed his skin. The other testified that he was not injured at all.

After the robbery, Bostic and Hutson forced a woman into her car and drove off.  They robbed her and then, at Bostic’s insistence, let her go, the petition states.  Then, Bostic and Hutson threw their guns in the river and used the money to buy marijuana.  Bostic was pulled over by the police and ultimately charged with 18 felonies....

Bostic said he plans on taking things “one day at a time,” doing things he never had the chance to do — like learn to drive, use the internet and talk on a cell phone for the first time.  On Wednesday, he returned home to St. Louis. “It’s perfect because I know St. Louis,” he said, “But I’ve got to relearn it.”

Prior related posts:

• Retired Missouri judge now expressing regret about giving 16-year-old offender 241 years in prison for role in two armed robberies 
• After Missouri expands parole eligibility for certain juve offenders, Bobby Bostic secures parole 25 years after getting 241-year sentence 

SCOTUS takes up case to address reach of federal two-year mandatory minimum added prison term for identity theft

I missed late yesterday that the Supreme Court issued a tiny order list on Thursday that granted cert on a single new case.  This news is exciting for those of us interest in seeing a bit more criminal action on the SCOTUS docket, and this SCOTUSblog posting has the details:

The Supreme Court announced on Thursday afternoon that it will weigh in on what it means to commit identity theft. After holding their private conference a day early because Friday is a federal holiday, the justices released a one-sentence order list that added one new case to their merits docket for the 2022-23 term: Dubin v. United States.

The defendant in the case is David Dubin, who was convicted of Medicaid fraud.  As the dispute comes to the Supreme Court, Dubin is challenging a separate conviction under a federal law that makes it a crime to use another person’s identity in the process of committing another crime.  Federal prosecutors contend that Dubin’s use of his patient’s name on a false Medicaid claim violated the statute, adding an extra two years to his one-year sentence for fraud.

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit upheld Dubin’s conviction and sentence, and on rehearing a deeply divided full court affirmed that decision. Dubin appealed to the justices in June, and they agreed on Thursday to take up his case, which will likely be argued sometime early next year.

Here is how the question in the case is presented by the defendant in his cert petition:

The federal aggravated identity theft statute provides: “Whoever, during and in relation to any felony violation enumerated [elsewhere in the statute], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person, shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.” 18 U.S.C. § 1028A(a)(1).

The question presented is whether a person commits aggravated identity theft any time he mentions or otherwise recites someone else’s name while committing a predicate offense.

Wouldn't pardons and commutations for those who served be a great way for Prez Biden to honor Veterans Day?

The question in the title of this post is inspired by today's national holiday, Veterans Day.  Based on the latest data from Bureau of Justice Statistics, from this March 2021 report "Survey of Prison Inmates, 2016: Veterans in Prison," veterans make up over 5% of the federal prison population (and nearly 8% of state prison populations).  Moreover, as an important new initiative from the Council for Criminal Justice has highlighted, roughly "one third of veterans report having been arrested and booked into jail at least once in their lives, compared to fewer than one fifth of non-veterans."  In other words, at both the federal and state level, there are surely no shortage of justice-involved veterans who could and should be a focus of concern and attention on this important day and for whom clemency consideration would be justified.

Though I am not expecting that Prez Biden will celebrate this Veterans Day by making a special effort to grant commutations or pardons to a special list of veterans, I have long thought criminal justice reform advocates ought to lean into this day by urging the President and all Governors to make a tradition of using clemency powers in this kind of special and distinctive way on this special and distinctive day.  As I have noted before, a key slogan for this day is "honoring  ALL who served," not just those who stayed out of trouble after serving.

Some (or many) prior related posts: 

• Thinking about sentenced troops on Veterans Day
• How many vets, after serving to secure liberty, are now serving LWOP sentences?
• My amicus effort to support our troops 
• Should prior military service reduce a sentence?
• How about a few clemency grants, Prez Obama, to really honor vets in need on Veterans Day?
• "Roughly one in 12 people in America’s prisons and jails is a veteran" 
• Eager to honor our veterans caught up in our nation's massive criminal justice systems 
• Making the case for criminal justice reform as a way to honor those who served on Veterans Day
• New CCJ commission to examine factors driving veterans' involvement in criminal justice system 

Another important look at the role of prosecutors in second-look sentencing

Many years ago, I had the honor of giving a keynote speech at a conference focused on the work of prosecutors where I suggested they should be much more involved in reviewing past sentences.  That speech, whi got published as Encouraging (and Even Requiring) Prosecutors to Be Second-Look Sentencers, 19 Temple Political & Civil Rights L. Rev. 429 (2010), came to mind as I read this new Marshall Project piece headlined "Prosecutors in These States Can Review Sentences They Deem Extreme. Few Do."  I recommend the lengthy and effective piece in full, and here is a brief excerpt:

Louisiana is one of five states that has recently passed prosecutor-initiated resentencing laws, along with California, Washington, Illinois and Oregon.  Five others — New York, Minnesota, Massachusetts, Georgia and Maryland — considered similar bills this year, though none were brought to a vote.

Many incarcerated people view these laws as a way to get fresh eyes on their cases.  Advocates for criminal justice reform say the laws are needed to help reduce mass incarceration.

But their reach so far has been concentrated in the offices of a few district attorneys, mainly in urban areas, according to a review by The Marshall Project.  One reason is the high cost of reviewing old cases, prosecutors say. There are also moral and political issues.  Some prosecutors are philosophically opposed to the notion of overturning sentences handed down by a judge, and others fear pushback from voters.

Some of many recent prior related posts:

• Spotlighting prosecutors advocating for and embracing second-look sentencing mechanisms 
• Noting the notable number of prosecutors now supportive of sentencing second looks
• Every D.A. in America Should Open a Sentence Review Unit" 
• NACDL releases model "Second Look" sentencing legislation providing for resentencing after a decade in prison
• An awesome reading list on "Second Look Sentencing"
• "Prosecutor-Driven 'Second Look' Policies Are Encouraging, But Not A Panacea"
• The Sentencing Project releases new report urging "A Second Look at Injustice" 

A small sampling of my prior writing on this front:

• "Sentencing is Dang Hard... And So..."
• "Re-Balancing Fitness, Fairness, and Finality for Sentences"
• "Reflecting on Parole's Abolition in the Federal Sentencing System"
• "Encouraging (and Even Requiring) Prosecutors to be Second-Look Sentencers"

"Dresser Drawer Pardons: Pardons as Private Acts"

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

Can a President issue a pardon without telling anyone but the recipient that she has issued it?  Yes, the President can grant a valid pardon without telling anyone but the recipient of her grace that she has done so.  While a defendant must plead a pardon for a court to take notice of it and quash an indictment, the document may otherwise lay buried in a sock drawer in case it is ever needed without losing any of its force or effect.

In this article, I make the case for secret pardons based upon Supreme Court precedent dating back to Chief Justice Marshall’s tenure on the Court.  In the years since Marshall’s 1833 ruling in United States v. Wilson, the Court has repeatedly reaffirmed the historical and formalist approach to the pardons clause that Marshall inaugurated.  Declaring that English practice should be the guide to the federal pardons clause, Marshall endorsed the understanding of pardons maintained by English treatise writers.  Marshall and the English writers describe pardons as a kind of deed or private act.

Besides validating secret pardons, the fact that pardons are to be treated as private acts or deeds also teaches us that oral pardons are likely invalid and that self-pardons are utterly nugatory.  Along the way to these conclusions, I confront the oddity of the Court-backed legal truth that pardons are private acts, explaining how a power with so many public consequences for the criminal justice system could possibly be considered a private act.  I also consider an abortive challenge to the historical–formalist approach to the pardon power established by Chief Justice Marshall that Justice Holmes raised in the 1920s.  Studying the clash between Marshall and Holmes allows us to see clearly the difference between Holmes’ legal realism and Marshall’s antiquarian formalism.

How many federal LWOP sentences have been reduced via 3582(c)(1)(A) and on what grounds?

The question in the title of this post was prompted by a notable new ruling sent my way, US v. West, No. 06-21185 (E.D. Mich. Nov. 7, 2022), which grants a sentenced reduction motion for a prisoner serving a federal LWOP sentence.  Before discussing that opinion (which can be dowloaded below), I will note that Figure 2 of the USSC's latest Compassionate Release Data Report from September 2022 reports that 27.9% of the over 4000 prisoners who have had their 3582(c)(1)(A) motions granted were serving original sentences of "20 years or more."  In other words, since the First Step Act became law in December 2018, well over 1000 persons serving sentences of 20 or more years have received sentence reductions.  But, to my knowledge, the USSC has not provided further details with any data specifically regarding prisoners serving LWOP securing compassionate release or regarding the reasons judges commonly give when reducing LWOP sentences.

General numbers and broader trends aside, the ruling in West makes for an interesting read because the judge here decides that Apprendi error as well as unwarranted sentencing dispartity provided extraordinary and compelling reasons for a sentence reduction.  Here is how the West opinion gets started:

Roy West is in year 17 of a life without parole sentence.  The indictment and case submitted to the jury should have netted West not more than ten years in prison.

Errors on the part of competent people — prosecutors, defense counsel, probation officers and, ultimately, this judge at the time of sentencing — resulted in the imposition of a sentence in violation of the law on West.  Even skilled appellate counsel failed to raise the sentencing error.

West has no way to correct this extraordinary and compelling error — and end his days in prison — but through his now pending motion for sentence reduction (compassionate release).

18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act of 2018, opens an avenue for this Judge to correct a fundamentally unfair sentence that did not exist before.  Justice and faith in our judicial system demand correction for the benefit of Roy West.

This human error on multiple levels, the resulting sentencing disparity, the absence of any other avenue for relief, and West’s extraordinary rehabilitation constitute extraordinary and compelling reasons for sentence reduction.  The 18 U.S.C. § 3553(a) factors support a sentence reduction as well.

Download West CR opinion

Recapping last week's SCOTUS arguments in two complicated review procedure cases

Last Tuesday, the Supreme Court hear arguments in two complicated criminal cases: Jones v. Hendrix, which I previewed here last week, and Cruz v. Arizona, a capital case.  These cases have not garnered that much general attention, surely because they both involve complicated procedural issue.  Still, the folks at SCOTUSblog have detailed reviews of the arguments, and I have also seen a few other discussions of the arguments:

Jones:

From SCOTUSblog, "In habeas case, the liberal justices try to untangle a complex statute"

From Law & Crime, "Justice Alito Concerned that Freeing Legally Innocent Man from Prison Would Clog Up the Federal Courts"

 

Cruz:

From SCOTUSblog, "Arizona asks court to approve “Kafkaesque” treatment of due-process claim from man on death row"

From Cronkite News, "Supreme Court presses state on its rejection of Arizona death-row appeal"

From the Arizona Republic, "U.S. Supreme Court hears oral argument of Arizona man on death row"

Oklahoma Gov extends execution stay for Richard Glossip as courts still consider innocence claim

As reported in this AP piece, "Oklahoma Gov. Kevin Stitt granted another temporary reprieve to death row inmate Richard Glossip, pushing his scheduled execution back until February 2023 so that an appeals court has more time to consider his claim of innocence."  Here is more:

Stitt, who is locked in a tough reelection contest, issued an executive order on Wednesday that delays Glossip’s execution, which was scheduled for Nov. 21. Stitt’s office didn’t immediately respond to a request for comment. A clemency hearing for Glossip that was scheduled before the Oklahoma Pardon and Parole Board next week also will be delayed.

Glossip received the death penalty for the 1997 murder-for-hire killing of his boss, motel owner Barry Van Treese. Prosecutors acknowledge Glossip did not kill Van Treese, but maintain that he paid the hotel maintenance man, Justin Sneed, to do it. Sneed, who received a life sentence but was spared the death penalty, was a key witness in two separate trials in which Glossip was convicted.

Attorney General John O’Connor said in a statement that he respects the governor’s decision but remains confident in Glossip’s guilt. “After 25 years, justice is still on hold for Barry Van Treese and his family,” O’Connor said. “Mr. Van Treese was in a room of the motel he owned when he was brutally murdered with a baseball bat by Justin Sneed, an individual Richard Glossip hired to work at the motel and later enlisted to commit the murder. Two different juries found Glossip guilty of murder for hire.”...

Glossip asked the Oklahoma Court of Criminal Appeals for a new evidentiary hearing following the release of an independent investigation by Houston law firm Reed Smith that raised new questions about his guilt. The firm’s report did not find any definitive proof of Glossip’s innocence, but raised concerns about lost or destroyed evidence and a detective asking leading questions to Sneed to implicate Glossip in the slaying....

A bipartisan group of 62 Oklahoma legislators, led by Republican state Rep. Kevin McDugle, have signed a request that a new evidentiary hearing be granted. Glossip, now 59, has long maintained his innocence.

He has been scheduled to be executed three separate times, only to be spared shortly before the sentence was set to be carried out. He was just hours from being executed in September 2015 when prison officials realized they had received the wrong lethal drug, a mix-up that helped prompt a nearly seven-year moratorium on the death penalty in Oklahoma.

Previewing SCOTUS argument on federal statutory collateral review mechanisms

Though the Supreme Court's oral argument today in the affirmative action cases is understandably garnering lots of attention, criminal justice fans should not forget that tomorrow brings oral argument in a big interesting federal CJ case with Jones v. Hendrix.  This SCOTUSblog preview, titled "On the narrow road to challenge a federal conviction, when is a vehicle 'inadequate'?," provides a detailed preview that starts this way:

On Tuesday, the justices will hear argument in Jones v. Hendrix, the latest in a string of cases that raise profound questions about the rights of prisoners who claim to be innocent to challenge their convictions. Last year, the court restricted the ability of state prisoners to develop new evidence to support claims that their attorneys failed to investigate leads that could have shown they were factually innocent.  Jones involves a federal prisoner who is legally innocent — the conduct a jury found he committed isn’t a crime.  But should that fact relieve him from his 27-year prison sentence?  In the Supreme Court’s habeas corpus jurisprudence, the answer is never simple.  Indeed, the case comes before the court as a three-way split: the petitioner, Marcus DeAngelo Jones, challenged his conviction in a federal habeas petition under 28 U.S.C. § 2241, arguing that the “motion to vacate” his conviction provided by 28 U.S.C. § 2255 is inadequate to afford him relief.  The U.S. Court of Appeals for the 8th Circuit ruled he cannot pursue a petition because he already filed a motion under Section 2255, which bars him from filing a successive petition, and he should have raised his claim earlier.  The federal government — which prosecuted Jones — says the 8th Circuit got the reasoning wrong but the outcome right: It urges the Supreme Court to correct the lower court’s error but deny Jones relief. 

And here are a couple of additional previews of Jones, which seems to me to be the most important federal criminal law case of the current SCOTUS Term to date:

From JD Supra, "Jones v. Hendrix: An Attempt to Save 28 U.S.C. § 2255’s 'Saving Clause'"

From Law360, "Habeas Case May Open Prison Door For Retroactive Innocents"

Prez Biden suggests disinterest in broader marijuana clemency as activists protest on behalf of pot prisoners

This new Marijuana Moment piece, headlined "Biden Has No Intention Of Extending Marijuana Pardons To Help People Jailed For Selling It, He Suggests," reports on new comments from the President about his recent clemency activity.  Here is how it starts:

President Joe Biden on Friday again touted his recent marijuana pardons proclamation, but indicated that he has no intention of granting relief to people who are in prison for selling cannabis.  “I’m keeping my promise that no one should be in jail for merely using or possessing marijuana,” he said. “None. And the records, which hold up people from being able to get jobs and the like, should be totally expunged. Totally expunged.”

“You can’t sell it,” the president added. “But if it’s just use, you’re completely free.”

The comments come as activists are planning a protest including civil disobedience at the White House for Monday aimed at calling attention to those who are left behind by Biden’s existing cannabis clemency action.

It’s not clear if the president’s latest remarks simply describe the scope of his current marijuana pardons, which came alongside a separate move to review the drug’s current scheduling status under federal law, or if they are an indication he is ruling out broadening the scope of clemency relief in the future.

The latter scenario would be a great disappointment to the advocates behind the planned White House protest. Those groups, including Students for Sensible Drug Policy, Last Prisoner Project, DCMJ and others, sent a letter to Biden this month, calling his moves to date “a great first step” but saying they “did nothing to address the thousands of federal cannabis prisoners currently incarcerated.”

This extended Washington Post piece, headlined "Sentenced to 40 years, Biden’s marijuana pardons left him behind," discusses the planned protest and the prisoners who are the focal point for additional clemency advocacy:

Protesters are expected to gather outside the White House on Monday to advocate for people ... incarcerated for what they would consider nonviolent offenses that involve marijuana, especially as public perception of the substance has shifted.  Cannabis is now legal for recreational adult use in Washington, D.C., two territories and 19 states.  It is on the ballot in five more states next month.

For those hoping to see marijuana law and policy reforms untangle the legacy of the country’s war on drugs, Biden’s announcement this month that he’d pardon people convicted of federal simple possession did not go far enough. And meaningful post-conviction reform still remains largely elusive in an America that echoed with promises to scrutinize criminal justice following the murder of George Floyd.

The Last Prisoner Project, a nonprofit working on cannabis criminal justice reform that lobbied the White House on this issue, has estimated that there are roughly 2,800 people in federal prison due to marijuana-related convictions, a statistic the organization said stems from a 2021 report from Recidiviz, a nonprofit that uses technology and data to build tools for criminal justice reform....

The first step in ending the war on drugs — which has disproportionally affected Black and Brown communities — is releasing people who have been incarcerated for nonviolent marijuana offenses, said Jason Ortiz, executive director of Students for Sensible Drug Policy.

Offenses like cultivation, distribution and conspiracy, Ortiz said, are the same actions major companies are able to commercialize and profit from today. “There are multibillion dollar companies that sell thousands and thousands of pounds of cannabis a year and operate in multiple states. So if we’re going to allow for that type of commerce to happen, everyone in prison who did anything even remotely close to that should be immediately let out.”

I think it notable and worth noting that we actually have no clear accounting of how many persons may still be serving federal prison terms for "nonviolent marijuana offenses."  This recent analysis of federal prison data from January 2022 by the US Sentencing Commission suggests the number of imprisoned marijuana trafficking offenders was "only" around 2200 as of the start of this year.  Notably, the federal marijuana prisoner number was around 7500 based on USSC data from just five years ago, but sharp declines in federal marijuana prosecutions (discussed in this article) and COVID-era prison population reductions have had a huge impact on the total number now incarcerated for federal marijuana offenses.

Prior recent related posts:

• October surprise: Prez Biden announces he is "pardoning all prior federal offenses of simple marijuana possession"! Wow!
• A few more details about President Biden's mass pardon of federal offenses of simple possession of marijuana
• Rounding up a few (of many) reactions to Prez Biden's marijuana possession pardons
• Prez Biden's one miss in his marijuana moves: failing to urge Congress to move on federal record relief mechanisms
• US Sentencing Commission produces "additional analyses" of those receiving federal marijuana possession pardons
• Might the recent marijuana pardons by Prez Biden "make things worse for criminal legal reform"? 

UPDATE: Here is a new Washington Post piece about the protest headlined "With speeches, stars and a blow-up joint, protesters press Biden on pot."

"A Second Look for Children Sentenced to Die in Prison"

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

Scholars have championed “second look” statutes as a decarceral tool.  Second look statutes allow certain incarcerated people to seek resentencing after having served a portion of their sentences.  This Essay weighs the advantages and disadvantages of these statutes as applied to children sentenced to die in prison and argues that focusing on this small, discrete group may be a digestible entry point for more conservative states who fear widespread resentencing.  Moreover, because early data indicates that children convicted of homicide and released as adults have very low recidivism rates, second look beneficiaries are likely to pose little threat to public safety.  While resentencing and even releasing these individuals would not directly result in mass decarceration, it would serve as a litmus test for expanding second look statutes to adults convicted of violent crimes — the very group for whom meaningful decarceral efforts must ultimately be aimed.

The Essay also argues that second look legislation has the potential to redress two specific sentencing problems common to cases involving children: the inability to accurately assess an individual’s capacity for change and racially discriminatory sentencing outcomes.  To redress these problems, and to avoid reflexive impositions of original sentences, this Essay recommends three critical additions to juvenile second look statutes: automatic eligibility for resentencing at age twenty-five, jury resentencing, and inadmissibility of the defendant’s original sentence.

"Inflation and the Eighth Amendment"

The title of this post is the title of this new paper recently posted to SSRN and authored by Meara Maccabee, a student at The Ohio State University Moritz College of Law.  This paper is part of a student paper series supported by OSU's Drug Enforcement and Policy Center, and here is its abstract:

As inflation pushes the prices of goods higher and higher, the monetary thresholds that separate misdemeanor thefts from felony thefts deflate.  This paper argues that deflated felony thresholds provide courts a unique opportunity to wade into what is typically 'properly within the province of legislatures': sentence proportionality.  Because inflated thresholds are the result of a natural economic event, rather than legislative enactment, courts have more deference to find felony sentences disproportionate when the underlying theft would have constituted a misdemeanor absent inflation.

New FAMM report: "Grading the States: The State Compassionate Release Report Card Project"

As detailed in this press release, the folks at FAMM have today released a lot of new materials and resources focused on how states approach compassionate release for state prisoners.  Here are details from the press release:

Today, FAMM has released a compassionate release report, including report cards for every state, grading compassionate release programs designed for incarcerated people struggling with certain extraordinary circumstances, such as a terminal or age-related illness.

“It was not surprising, but still disheartening to see so little improvement in compassionate release across the country since we first examined state compassionate release in 2018,” said Mary Price, FAMM’s general counsel and author of the report. “Lawmakers across the country fund compassionate release programs that sit idle and leave people to die in prison – including during the COVID-19 pandemic.

“There comes a point in a person’s sentence where they are so sick that incarceration loses any meaning or worse, becomes torture. If the programs are broken and can’t be used effectively, the lawmakers should fix them.”

In concert with the report, FAMM today also released a new national poll which found that 70% of Americans, across political lines, support compassionate release programs.

“At a time of concern about rising rates of crime, why are so many states wasting their limited resources to incarcerate sick and elderly people?” said Kevin Ring, FAMM’s president. “Committing to compassionate release programs could allow for funds to be better used to address concerns about crime.”

FAMM graded the compassionate release programs for each state in several categories before assigning a letter grade. The map of results is below.

The report is an update to “Everywhere and Nowhere: Compassionate Release in the States,” a comprehensive, state-by-state report on the early-release programs. That report was released in 2018.

Half dozen GVRs provide only "excitement" for CJ fans in latest SCOTUS order list

Regular readers now know I am making a regular habit (see here) of complaining about the relative lack of interesting criminal matters on the Supreme Court's docket this Term.  That reality leads me to eagerly await each new SCOTUS order list with the hope the Justices will add something spicy for sentencing fans (or really any criminal cases concerning more than just intricate procedural issues).  So, I opened today's SCOTUS order list ... and the title and start of this post surely made it plain that there were not any exciting new criminal justice cert grants or even opinions dissenting about any denials (in fact, there were no cert grants or opinions at all).

That said, I was intrigued to see that the new order list did include six GVRs based on criminal justice rulings last Term.  Specifically, there were five GVRs based n Ruan (basics here) and one based on Concepcion (basics here).  I have not kept a running list of the number of GVRs from these cases or others, but maybe that will be my best bet for SCOTUS excitement these days.

But hope springs eternal in the SCOTUS fall, and the Justices will release another order list in a couple of weeks on October 31.  Perhaps someone can scare up some spirited cert grants for that special day.  And, not to be forgotten, a big case for federal prisoners seeking review of convictions and sentences, Jones v. Hendrix, No. 21-857, is be argued on November 1.  (And, as I will discuss in another coming post, in the meantime sentencing fans do have the excitement of the first public US Sentencing Commission hearing in nearly four years on October 28.)

Might new Justice Jackson create a whole new Court in criminal cases (at least on acquitted conduct)?

The question in the title of this post is a modified version of a question I asked at the end of this lengthy July 2022 post which set out some of my initial thoughts on the SCOTUS criminal justice work during October Term 2021.  Here is what said at that time in that post:

One often hears that every new Justice makes for a whole new Supreme Court.  That aphorism is, of course, technically true; but most folks, myself included, expect new Justice Jackson to approach and vote on issues quite similarly to how retired Justice Breyer did.  That said, Justice Jackson might not track Justice Breyer on some criminal justices issues (such as Apprendi rights), and perhaps she might encourage the Court to take up more or different types of criminal justice cases.  Stay tuned. 

In this Bloomberg Law piece, Jordan Rubin picks up this theme under the headline "Justice Jackson Can Shift High Court’s Crime Docket Post Breyer." Here is how this piece gets started:

Supreme Court Justice Ketanji Brown Jackson will face an early test of whether she can form a new majority in some criminal cases along with Republican-appointed colleagues on issues that cross ideological lines.

Jackson is expected to side with criminal defendants in cases involving sentencing and search and seizure more often than her predecessor, Stephen Breyer, who cast tie-breaking votes for the government.  But to make a majority on the court dominated by six Republican appointees, criminal defendants may need to attract not only Jackson and the other two Democratic appointees but two Republican appointees as well.

“Justice Jackson is going to bring all of her experiences in the criminal legal system to the table — and to conference — and I anticipate her voice and vote having added gravitas on criminal law, criminal procedure, and federal sentencing,” said Devi Rao, director of the MacArthur Justice Center’s Washington office and deputy director of its Supreme Court and Appellate Program.

“She’ll be more than just the ‘junior Justice’ when it comes to these issues,” Rao said of the former public defender who represented Guantanamo detainees and was a sentencing commissioner at the center of reducing drug punishments.

An upcoming test of a potential new criminal coalition comes as the justices prepare to consider taking a case that asks whether judges can punish defendants for conduct they’re acquitted of at trial.

The rest of the Bloomberg article discusses a case that should be familiar to readers, namely McClinton v. US, in which the Seventh Circuit affirmed a 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case (and I also have this amicus brief filed).  The government has now received three extensions on their response to the cert petition, so we likely will not have a cert decision until next month (if not later).

A few recent of many, many prior related posts:

• "Acquitted Conduct Should Not Be Considered At Sentencing"
• "Acquitted. Then Sentenced."
• Can anyone estimate how many (thousands of) federal prison years have been based on acquitted conduct sentencing? 
• Might SCOTUS finally be ready to take up acquitted conduct sentencing enhancements?
• Hoping and pushing for SCOTUS finally taking up acquitted conduct sentencing enhancements

US Sentencing Commission produces "additional analyses" of those receiving federal marijuana possession pardons

In an update to this post last week, I noted that the US Sentencing Commission had produced this three-page analysis of "data relating to offenders sentenced between fiscal year 1992 and fiscal year 2021 convicted of at least one count of simple possession involving marijuana."  That analysis explained where "senior administration officials" were getting the talking point that around 6500 people were going to benefit from President Joe Biden's decision to grant a blanket pardon to "all current United States citizens and lawful permanent residents who committed the offense of simple possession of marijuana in violation of the Controlled Substances Act"  That USSC accounting also led me to wonder if we might ever get "race and gender and age and criminal history information" regarding this now-pardoned population.

Excitingly, late yesterday the US Sentencing Commission issued this news advisory announcing that it had completed "additional analyses" of the pardoned population "providing additional information on demographics and geographic distribution."  The additional USSC analyses include race and gender data (but no age and criminal history data), and the biggest story in the new analyses seems to be that the pardoned population is comprised of more Whites (41.3%) and Hispanics (31.8%) than Blacks (23.6%).  This reality may be a bit surprising given that the ACLU has repeatedly documented that states have in recent decades arrested Blacks at nearly four times the rate as whites (see here and here).  But since most federal marijuana possession offenses are concentrated near the border or on federal property (like military bases and national parks), this racial distribution perhaps should not be all that surprising.

Prior related posts:

• October surprise: Prez Biden announces he is "pardoning all prior federal offenses of simple marijuana possession"! Wow!
• A few more details about President Biden's mass pardon of federal offenses of simple possession of marijuana
• Rounding up a few (of many) reactions to Prez Biden's marijuana possession pardons
• Prez Biden's one miss in his marijuana moves: failing to urge Congress to move on federal record relief mechanisms

SCOTUS seemingly split over 1983 suit timelines for high-profile Texas death row defendant claiming innocence

Rodney Reed has been on death row in Texas for over two decades based on his conviction for raping and murdering a teenager back in 1996. Reed has always maintained his innocence, but it is a procedural issue that brought his case before the Supreme Court and seemed to divide the Justices. Amy Howe's SCOTUSblog analysis of the argument, "Justices wrestle with statute of limitations in Rodney Reed’s effort to revive DNA lawsuit," provides a great review that starts this way:

The Supreme Court on Tuesday heard the case of a Texas death-row inmate seeking DNA testing for evidence that he believes will clear him. A federal appeals court threw out Rodney Reed’s federal civil rights lawsuit challenging the constitutionality of the Texas law governing DNA testing, explaining that Reed had filed his suit too late. Although several justices on Tuesday appeared ready to reject the deadline imposed by the lower court, there was no clear consensus around an alternative rule – and Reed’s lawsuit would still be too late under one of the options that the justices debated.

The full argument transcript in Reed v. Goertz is available at this link.  And here are a few press accounts of the argument:

From Law360, "Comity Takes Center Stage In High Court DNA Testing Case"

From Reuters, "U.S. Supreme Court mulls Texas death row inmate Rodney Reed's DNA testing bid"