Sentencing Law and Policy

Arizona court rejects condemn man's petition objecting to too many law enforcement members on state Board of Clemency

This new NPR piece, headlined "In rejecting death row inmate's case, judge says law enforcement isn't a profession," reports on this interesting state court ruling from last week concerning the Arizona clemency process. Here are the details and context:

An Arizona inmate who is mere weeks away from his scheduled execution argued the state's clemency board was unfairly loaded with law enforcement. But a state judge has disagreed, saying that law enforcement does not meet the definition of a "profession."

Earlier this month, the Arizona Supreme Court issued an execution warrant – the first in eight years – for Clarence Wayne Dixon, a 66-year-old prisoner convicted of first-degree murder. But Dixon's attorneys argued Tuesday that the Arizona Board of Clemency, which is set to meet on April 28 to decide whether to stay the execution, is illegally made up of too many members who had careers in law enforcement.

This past Tuesday, Maricopa County Superior Court Judge Stephen Hopkins ruled against Dixon. "Historically, law enforcement has not been thought of as a "profession," Hopkins said in his decision. "It is not regulated as other professions are, and has little of the characteristics of what is typically considered a profession."...

Arizona law prohibits "No more than two members from the same professional discipline" from serving on the clemency board at the same time. The current board is made up of: one former superior court commissioner and assistant attorney general; a former federal agent with over 30 years' experience; a retired officer who spent 30 years with the Phoenix Police Department; and a 20-plus-year detective, also with the Phoenix PD. The fifth seat on the board is currently vacant.

Dixon was serving seven life sentences for the 1985 kidnapping, rape and assault of a Northern Arizona University student, according to court documents, when investigators connected him with a murder that took place seven years earlier. In 2001, DNA evidence linked Dixon to the January 1978 murder of Deana Bowdoin, a 21-year-old student at Arizona State University. She was found dead in her apartment, having been strangled and stabbed. A jury sentenced Dixon to death in 2008....

Dixon's execution, which appears all but certain at this time, will be the first to be carried out in Arizona since the botched execution of Joseph Rudolph Wood in 2014. Wood's execution should have taken a matter of minutes, NPR previously reported, but instead, the prisoner took more than two hours to die.

Based on the ruling, it seems that Dixon also asserted a due process violation, perhaps based only on the statutory requirement or maybe independently.  The court address that issue this way: "To be sure, courts have recognized due process rights in connections with boards of parole, pardon, or clemency.  See generally Chapter Three, The Law of Probation and Parole.  However, to the Court’s knowledge no case anywhere has recognized a due process right in the particular makeup of such a board."

Supreme Court grants cert on procedural issue relating to federal suits seeking DNA testing of crime-scene evidence

For the first time in what seems like a while, the US Supreme Court granted certiorari in a couple of new cases this morning.  The two cert grants in this order list has one civil matter and on criminal matter. The criminal case is Reed v. Goertz, No. 21-442, and here is its question presented via SCOTUSblog:

Issue: Whether the statute of limitations for a 42 U.S.C. § 1983 claim seeking DNA testing of crime-scene evidence begins to run at the end of state-court litigation denying DNA testing, including any appeals (as the U.S. Court of Appeals for the 11th Circuit has held), or whether it begins to run at the moment the state trial court denies DNA testing, despite any subsequent appeal (as the U.S. Court of Appeals for the 5th Circuit, joining the U.S. Court of Appeals for the 7th Circuit, held below).

Though executions are declining, questions about methods and how to litigate them persist

From 1995 to 2005, there were nearly 750 executions in the United States (747 to be exact, an average of 68 per year), almost all of which were by lethal injection, and relatively few of which were significantly delayed by uncertainty or litigation over execution methods.  But by the mid 2000s, litigation challenging the constitutionality of lethal injection began to pick up steam and the Supreme Court began to take up a number of different matters relating to this litigation.  (I blogged, somewhat cheekily, about all the lethal injection "scrummages" during this period.)

Fast forward another 16 years, and there have been "only" another 540 executions in the US from 2006 until today (an average of 34 per year), and there have been fewer executions in the last five years than in a number of single years in the 1995-2005 period.  The considerable amount of litigation over lethal injection is surely part of the reason for the modern decline, even with the Supreme Court repeatedly upholding lethal injection as a method of execution in landmark cases like Baze v. Kentucky (2008) and Glossip v. Gross (2015).

I provide all this background as a mini preview and prelude to the execution method litigation that SCOTUS will be hearing oral argument on Monday.  Nance v. Ward is about what procedural means condemned prisoners must use to challenge execution methods, and I suspect the history just recounted could impacting how various Justices approach this case.  Still, as discussed in the  SCOTUSblog preview post here authored by Lee Kovarsky, complicated procedural precedents may make this matter hard to predict.  That post concludes this way:

Nance is ultimately a case about how aggressively the Supreme Court wants to suppress method-of-execution claims, which it generally views as legalistic ploys to delay imposition of valid death sentences.  If it adopts Georgia’s preferred rule, then it will meaningfully alter the form and timing of Eighth Amendment challenges, and it will substantially reduce judicial enforcement against the states.  The court’s general disposition towards method-of-execution claims notwithstanding, the court agreed to review a lower court decision against a prisoner — which raises the very real prospect that Nance might be a case in which the court is actually prepared to rule in the prisoner’s favor.

Interesting example of federal judge rejecting white-collar plea deal as too lenient

A story this week out of Utah provides a reminder that federal judges can still have control over sentencing outcomes even in our plea bbargained justice system of pleas.  The headline of this local article captures the essence of the story: "Judge demands harsh sentence for ex-attorney accused of embezzling millions from Utah clients: Former Salt Lake City attorney Calvin Curtis faced about six years in prison as part of a plea agreement. The judge insisted on more prison time."  Here are some of the details:

A federal judge in Utah tossed out a sentencing proposal Tuesday for former Salt Lake City estate attorney Calvin Curtis, demanding that the man accused of defrauding his clients out of millions receive a harsher prison sentence.

The proposal of about six years in prison had been agreed upon by federal prosecutors and Curtis’ defense attorney ahead of the hearing. U.S. District Judge David Barlow was expected to take it into consideration before imposing a sentence.

Instead, rejecting the proposal altogether, Barlow said that as Curtis allegedly stole $12.7 million from 26 of his clients — all elderly, disabled or incapacitated — over about 13 years, the suspected fraud was “cold-blooded, premeditated and repeated.” Curtis “perverted” the law, Barlow continued, and “enriched himself on the backs of those who needed his help.”

Prosecutors have argued Curtis used that money to fund a “lavish lifestyle,” which included frequent travel, expensive gifts, tickets to basketball and football games, and pricey renovations and mortgage payments on his former mansion home and office on South Temple.  Assistant U.S. attorney Ruth Hackford-Peer said in Tuesday’s hearing that the proposed sentence of 73 months in prison was not a perfect resolution, “but it’s a good one.”

Several of Curtis’ victims attended the hearing, filling the courtroom along with family members and caregivers.... As the victims shared their stories of how devastating it has been to lose money that they would have used for various needs such as food, clothing, medicine and health care, a common refrain was for Barlow to impose the maximum sentence. “I don’t think Calvin is human,” one woman said quietly. “I feel that he’s the devil.”...

When it came time for Barlow to announce a decision, he said the proposed prison sentence — plus a restitution judgment of $12.7 million and supervised release for three years as part of Curtis’ plea agreement — was not harsh enough.  Since Curtis’ crimes were “so heinous,” Barlow said, he should receive a prison sentence at the higher end of the range that is customary in such a case, which is 10 years. The judge added that he is “not convinced” that Curtis — who is charged with wire fraud and money laundering — takes responsibility for his actions or feels remorse.

Barlow asked the attorneys for both sides to negotiate again and come up with a new sentencing proposal. A new hearing date was not immediately set....

Laura Milliken Gray, an attorney for a woman with Alzheimer’s disease from whom Curtis has admitted to embezzling more than $9 million, called Barlow’s decision a “surprise.”  Her client’s daughter-in-law, Sherry McConkey, said she is “excited” at the prospect of Curtis getting more time in prison than expected. But she added that it’s “hard” the case will go on longer, “because I just want it to be over and done with.”

Ruling 6-3, SCOTUS sets out added requirements for federal habeas petitioners

The Supreme Court this morning handed down an opinion in Brown v. Davenport, No. 20–826 (S. Ct. April 21, 2022) (available here), that perhaps only a fed courts junkie could love. The opinion produced a familiar ideological split and here is how Justice Gorsuch's opinion for the Court starts:

After a state court determines that an error at trial did not prejudice a criminal defendant, may a federal court grant habeas relief based solely on its independent assessment of the error’s prejudicial effect under Brecht v. Abrahamson, 507 U.S. 619 (1993)?  Or must a federal court also evaluate the state court’s decision under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)? The Sixth Circuit ruled that an individual who satisfies Brecht alone is entitled to habeas relief.  This was mistaken.  When a state court has ruled on the merits of a state prisoner’s claim, a federal court cannot grant relief without first applying both the test this Court outlined in Brecht and the one Congress prescribed in AEDPA.

Justice Kagan authored the dissent, which starts this way:

Twice in recent years, this Court has addressed how a federal habeas court is to evaluate whether a state trial error was harmless.  See Fry v. Pliler, 551 U.S. 112, 119–120 (2007); Davis v. Ayala, 576 U.S. 257, 267–270 (2015).  And twice, we have made clear that the habeas court need apply only the standard prescribed in Brecht v. Abrahamson, 507 U.S. 619 (1993); it need not also run through the test set out in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). That is because, we have both times explained, the Brecht standard “obviously subsumes” the “more liberal” AEDPA one: If a defendant meets the former, he will “necessarily” meet the latter too.  Fry, 551 U.S., at 120; Ayala, 576 U.S., at 270.

Today, the Court discards those crystal-clear statements, subscribed to on each occasion by every Justice.  The majority reverses the Court of Appeals for following our prior guidance, allowing the use of the Brecht test alone.  And in declaring Brecht insufficient, the majority consigns future habeas courts to a regimen of make-work.  Now those courts will have to jump through AEDPA’s hoops as well, even though that extra analysis will never lead to a different result.  I respectfully dissent from that pointless demand.

Firing squad execution stayed, while another execution date set, by South Carolina Supreme Court

Notable capital developments in South Carolina are covered in the CNN piece, which starts this way: "South Carolina's Supreme Court issued a temporary stay of execution Wednesday for Richard Bernard Moore, who was scheduled to be the first person executed by firing squad in the state." Here is more:

Lindsey Vann, one of Moore's attorneys, told CNN last week that they asked the state's highest court to put the execution on hold in order to give them time to appeal his conviction to the US Supreme Court.

Moore, who was sentenced to death for the 1999 murder of a convenience store clerk, was scheduled to be executed April 29. In a court filing last week, he chose firing squad over the electric chair.. He did not have the option of choosing lethal injection, as South Carolina does not have the necessary drugs, according to the filing. The state Department of Corrections previously told CNN it has not been in possession of a usable dose of lethal injection drugs since 2013.

Moore chose to die by firing squad but added in a statement he will not lose hope in two pending court challenges to the constitutionality of the state's death penalty method. "I believe this election is forcing me to choose between two unconstitutional methods of execution, and I do not intend to waive any challenges to electrocution or firing squad by making an election," he said in the statement.

He chose firing squad, as required 14 days before the date of his execution, because "I more strongly oppose death by electrocution," he wrote. Moore, 57, would be the first person executed in South Carolina in more than a decade.

Last year, the state Legislature passed a law that made electrocution the state's primary execution method, though death row prisoners have the option to choose a firing squad or lethal injection instead if the options are available....

Also Wednesday, the state set an execution date for Brad Keith Sigmon, who was sentenced in 2002 for two murders. Sigmon, who had a stay of execution last year, is scheduled to die May 13.

As I understand matters, Sigmon will now need to select between electrocution and a firing squad as his method of execution by the end of next week.  So it may still only be a matter of weeks before South Carolina conducts an "old school" execution.

Wouldn't a few marijuana offenders be a "light lift" for Prez Biden's first clemency grants?

The question in the title of this post is prompted by this lengthy New York Post article headlined "Ahead of 4/20, pot prisoners push Biden to honor campaign pledge to free them." I recommend the piece in full, and here are excerpts:

On the eve of the 4/20 cannabis holiday, federal inmates again are wondering if and when President Biden will make good on his 2020 campaign pledge to free “everyone” locked up on marijuana charges.  About 2,700 inmates are behind federal bars on pot-related charges — even though 18 states and DC now allow recreational use of the drug and two-thirds of Americans support legalization.

They include Pedro Moreno, 62, who is serving a life sentence after pleading guilty to distributing weed imported from Mexico from 1986 to 1996. “I will die in prison for marijuana unless I receive executive clemency,” Moreno told The Post....

Clemency advocates recently met with White House staff and believe Biden may eventually intervene.  But that it may not happen anytime soon as other initiatives take priority, such as commuting the sentences of people released temporarily from prison due to the COVID-19 pandemic....

Luke Scarmazzo, 41, has served 14 years of a 22-year sentence for running a medical marijuana operation in California and told The Post that he’s also struggling to maintain hope.  “When President Biden made those statements on the campaign trail, my family and I were very hopeful that our nightmare was finally coming to an end,” Scarmazzo said. “We are now nearly two years into President Biden’s term and we’re wondering when he will make good on his promise.”

Donald Fugitt, 37, noted how the country has changed in the decade since he was arrested in 2013.  “Another 4/20 and everybody is smoking and making money, but I’m still in a COVID-19-infested prison,” said Fugitt, a North Texas native who gets out in 2024 unless Biden reduces his sentence.  “I’ve accepted responsibility for my participation in a marijuana conspiracy. Everyone on my case is home except me. This was my first offense.”

Federal pot inmates include Lance Gloor, 43, who has two years left of a 10-year sentence for running dispensaries in Washington that he says sold state-legal medical marijuana, though federal prosecutors disagreed.  Gloor’s mother, Tracie Gloor Pike, says he had a severe case of COVID-19 last year and suffers rare complications....

Biden said on a debate stage in 2019: “I think we should decriminalize marijuana, period.  And I think everyone — anyone who has a record — should be let out of jail, their records expunged, be completely zeroed out.” But Biden hasn’t yet used his clemency powers to release anyone from prison....

Weldon Angelos, a former federal marijuana inmate and co-founder of the group Mission Green, helped craft a rubric that would ensure only non-violent prisoners are released and told The Post he has been involved in talks with the White House. “Candidate Biden promised to use his pardon power to free those still incarcerated federally for cannabis offenses, which gave a lot of hope to many,” Angelos said. “We have had a number of conversations with the White House of this topic and believe that Biden will keep his campaign promise. When that happens is another matter entirely, but we are encouraged.”...

Amy Povah, founder of the CAN-DO Foundation, which advocates for clemency for non-violent offenders, told The Post, “I’m not sure why we are still waiting for President Biden to free all the pot prisoners.” Povah said, however, that “I’m encouraged to see there is a new pardon attorney,” Elizabeth Oyer, who will vet clemency paperwork.  “[Oyer is] a former public defender. She is a refreshing choice since previous pardon attorneys have typically been prosecutors who often have a punitive mindset toward applicants,” Povah said....

In January 2021, then-President Donald Trump commuted the sentences of seven people serving life terms for marijuana — including two men who were given life without parole under the three-strikes provision of the Biden-authored 1994 crime law.

Michael Pelletier, a 65-year-old wheelchair-bound paraplegic, was among those released by Trump. He had a life sentence for smuggling Canadian pot into Maine before both legalized recreational markets.

“I thank President Trump every day that I wake up in a comfortable bed in a beautiful home in Florida surrounded by loving family, rather than the screeching sound of the PA system announcing another lock down due to violence,” Pelletier said. “It breaks my heart knowing there are still people serving life without parole for cannabis. I hope Biden will free all pot prisoners because I personally know several people who voted for him based on that campaign promise alone.”

A few on many prior recent related posts:

• On Presidents Day, coalition calls for Prez Biden to issue "a general pardon to all former federal, non-violent cannabis offenders in the U.S."
• "When Will Joe Biden Start Using His Clemency Powers?"
• New letter with prominent signers urges Prez Biden to pardon all non-violent marijuana offenders 
• Lamenting "Biden's do-nothing approach to clemency" as we approach holiday season 
• A second chance for Prez Biden to follow his proclamation about Second Chance Month with some clemency grants
• New Federal Sentencing Reporter issue considers "After Trump: The Future of the President’s Pardon Power"
• Justice Department has new Pardon Attorney who is a former public defender ... which means ...? 

Justice Department tweaking prison PATTERN risk tool "to ensure that racial disparities are reduced to the greatest extent possible"

This new NPR piece, headlined "Justice Department works to curb racial bias in deciding who's released from prison," reports on the latest steps being taken to tweak the operation of the FIRST STEP Act.  Here  are the details:

The Justice Department is moving to reduce racial disparities in a tool it uses to assess a prisoner's risk of a return to crime, after scholars and justice advocates pressed for change. Among other steps, it plans to make tweaks that would significantly increase the number of Black and Hispanic men in prison who are eligible to take educational classes or work-life programs that could lead to an earlier release.

But the tool, known as Pattern, continues to overestimate the number of Black women who will engage in recidivism, compared to white women in prison.  And in its latest effort to overhaul the troubled risk assessment algorithm, the Justice Department said it is still unable to resolve other racial disparities. The department outlined the new developments in a report sent to Congress on Tuesday and obtained by NPR, pledging that it would continue to work "to ensure that racial disparities are reduced to the greatest extent possible."

"When using factors with criminal history, prison discipline, and education, the tool is almost inevitably going to have disparities — unless they correct for systemic biases in policing, prosecution, corrections, and education," said Melissa Hamilton, a law professor at the University of Surrey who has closely followed the process.

NPR dissected problems with Pattern in a report earlier this year. It uncovered sloppy math mistakes and other flaws that put thousands of prisoners in the wrong risk category and treated them differently in part because of their ethnic backgrounds. The Justice Department will roll out the new version of Pattern early next month, which it said "will neither exacerbate nor solve these racial bias issues." But the department said it was making other adjustments that could translate into a real difference for people of color in prison.

A law called the First Step Act that passed with bipartisan majorities during the Trump administration offers people in prison a path to early release, by earning time credits for performing work and taking educational classes behind bars. Only low and minimum risk prisoners are eligible for those programs, so how the Bureau of Prisons assesses risk has major consequences for their lives and their release plans.

In its new report, DOJ said it would make no changes to how it evaluates violent recidivism risks, saying that measure provided an essential check for "public safety." Instead, the department shifted the boundaries between other risk levels for its general recidivism algorithm. DOJ estimated that 36 percent more Black men and 26 percent more Hispanic men might now qualify as minimum or low risk, with smaller increases for Black and Hispanic women in prison.

UPDATE: I am pretty sure the report referenced in this NPR piece is this one just released by the Justice Department titled simply "First Step Act Annual Report."  As stated at the start of the executive summary: "This Report reflects the ongoing efforts of the Department of Justice (the Department) to make the goals of the First Step Act a reality and summarizes the Department’s activities in that respect during the period since the publication of the last annual Report, in December 2020."

Notable dissent from three Justices on consideration of racial bias in capital case jury selection

This morning's SCOTUS order list had a lot of denials of cert, along with one dissent that generated a somewhat lengthy opinion.  The opinion in Love v. Texas, No. 21–5050, was technically a dissent from the denial of summary vacatur; Justice Sonia Sotomayor authored this seven-page dissent, which Justices Breyer and Kagan joined. This opinion started and ended this way:

Racial bias is “odious in all aspects,” but “especially pernicious in the administration of justice.”  Buck v. Davis, 580 U.S. ___, ___ (2017) (slip op., at 22) (internal quotation marks omitted).  When racial bias infects a jury in a capital case, it deprives a defendant of his right to an impartial tribunal in a life-or-death context, and it “‘poisons public confidence’ in the judicial process.” Ibid.  The seating of a racially biased juror, therefore, can never be harmless.  As with other forms of disqualifying bias, if even one racially biased juror is empaneled and the death penalty is imposed, “the State is disentitled to execute the sentence,” Morgan v. Illinois, 504 U.S. 719, 729 (1992).

In this case, petitioner Kristopher Love, a Black man, claims that one of the jurors in his capital trial was racially biased because the juror asserted during jury selection that “[n]on-white” races were statistically more violent than the white race.  29 Record 145.  The Texas Court of Criminal Appeals never considered Love’s claim on the merits.  Instead, relying on an inapposite state-law rule, the court concluded that any error was harmless because Love had been provided with two extra peremptory strikes earlier in the jury selection proceeding, which he had used before the juror at issue was questioned.  That decision was plainly erroneous.  An already-expended peremptory strike is no cure for the seating of an allegedly biased juror.  The state court thus deprived Love of any meaningful review of his federal constitutional claim.  I would summarily vacate the judgment below and remand for proper consideration....

Over time, we have endeavored to cleanse our jury system of racial bias.  One of the most important mechanisms for doing so, questioning during voir dire, was properly employed here to identify a potential claim of bias.  Safeguards like this, however, are futile if courts do not even consider claims of racial bias that litigants bring forward.  The task of reviewing the record to determine whether a juror was fair and impartial is challenging, but it must be undertaken, especially when a person’s life is on the line.  I would ensure that Love’s claim is heard by the Court of Criminal Appeals, rather than leave these questions unanswered.  I respectfully dissent.

Justice Department has new Pardon Attorney who is a former public defender ... which means ...?

I was pleased last night to see this great Twitter thread from Mark Osler spotlighting that the US Department of Justice this week officially has a new Pardon Attorney.  As this new DOJ bio details, she is Elizabeth (Liz) G. Oyer who before her Justice Department appointment served as "Senior Litigation Counsel to the Office of the Federal Public Defender for Maryland, where she represented indigent defendants at all stages of proceedings in federal district court [and] handled a wide variety of criminal cases, ranging from complex fraud to drug and gun offenses, as well as violent crimes."  Professor Osler, who is a leading national expert on federal clemency, has lots of good background in his thread about the appointment, and I am hopeful he does not mind my highlighting some of his key points here:

We've had "Acting" pardon attorneys for the past five or six years, so it means something that Pres. Biden has actually filled this slot. It's also significant -- and positive -- that he has given a career defender an important job in the Department of Justice.

However, this doesn't "fix" the backlog of petitions -- or promise a future fix of the backlog -- because it appears the problem there may not have been the Pardon Attorney, but the bureaucracy that takes up the petitions after they are evaluated by the pardon attorney (DAG & WHC)....

There are over 18,000 pending petitions, many of them now years old (including unresolved petitions from the Obama administration).  It's a mess.  We just know what kind of mess, or where the mess is located.  The whole thing needs reform.

For a host of reasons, I am eager to see the federal clemency process completely removed from the Department of Justice, and so I support the FIX Clemency Act, discussed here, and other proposals to have an independent body assist the President in his exercise of his constitutional clemency authority.  But as long as the current messy structure remains in place, it is encouraging to see that an experiences defense attorney has been placed into this important role.   As ProPublica highlighted a decade ago, a DOJ Pardon Attorney eager to find reasons not to recommend clemency grants can really muck up the process in ugly ways.  I am inclined to believe a former public defender is going to be more eager to find reasons to recommend grants.

in the end, none of this means much if Prez Biden (and anyone advising him on these matters) is disinclined to make use of the constitutional clemency authority.  Of course, candidate Joe Biden promised to "broadly use his clemency power for certain non-violent and drug crimes."  But, a full 15 months into his administration, Prez Biden has not granted a single pardon and has not granted a single commutation.  With more than 18,000 applications pending, not to mention many low-risk, COVID-vulnerable persons released to home confinement by the Trump Administration, it ought not be that hard to find at least a handful of "non-violent and drug" offenders who deserving of clemency during Second Chance Month.  Whomever is in charge of the matters at DOJ, where these is a clemency will there is surely a clemency way.  As of now, though, it does not appear that Prez. Biden really has much of a clemency will. 

A few on many prior recent related posts:

• FIX Clemency Act introduced in US House seeking to fix broken federal clemency process
• "Would an independent commission solve the clemency backlog?" 
• How about Prez Biden and lots of Governors starting a tradition of granting lots of clemencies around Mother's Day? 
• "When Will Joe Biden Start Using His Clemency Powers?"
• Lamenting "Biden's do-nothing approach to clemency" as we approach holiday season 
• Clemency criticisms as Prez Biden's record is now turkeys 2, humans 0 
• Another reminder that Prez Biden has so far decided to forget using his clemency powers 
• A second chance for Prez Biden to follow his proclamation about Second Chance Month with some clemency grants
• New Federal Sentencing Reporter issue considers "After Trump: The Future of the President’s Pardon Power"

"An Algorithmic Assessment of Parole Decisions"

The title of this post is the title of this new paper now on SSRN authored by Hannah Laqueur and Ryan Copus. Here is its abstract:

Objectives: Parole is an important mechanism for alleviating the extraordinary social and financial costs of mass incarceration.  Yet parole boards can also present a major obstacle, denying parole to low-risk inmates who could safely be released from prison.  We evaluate a major parole institution, the New York State Parole Board, quantifying the costs of suboptimal decision-making.

Methods: Using ensemble Machine Learning, we predict any arrest and any violent felony arrest within three years to generate criminal risk predictions for individuals released on parole in New York from 2012–2015.  We quantify the social welfare loss of the Board’s suboptimal decisions by rank ordering inmates by their predicted risk and estimating the crime rates that could be observed with counterfactual risk-based release decisions.  We also estimate the release rates that could be achieved holding arrest rates constant.  We attend to the “selective labels” problem in several ways, including by testing the validity of the algorithm for individuals who were denied parole but later released after the expiration of their sentence.

Results: We conservatively estimate that the Board could have more than doubled the release rate without increasing the total or violent felony arrest rate, and that they could have achieved these gains while simultaneously eliminating racial disparities in release rates.

Conclusions: This study demonstrates the use of algorithms for evaluating criminal justice decision-making.  Our analyses suggest that many low risk individuals are being unnecessarily incarcerated, highlighting the need for major parole reform.

"New Originalism: Arizona's Founding Progressives on Extreme Punishment"

The title of this post is the title of this interesting new article now available via SSRN authored by John Mills and Aliya Sternstein. Here is its abstract:

Originalism, together with textualism, has been of growing interest to legal scholars and jurists alike.  Discerning and putting forth the views of “the founders” has become part and parcel of effective advocacy, particularly with regards to constitutional questions.  Arizona is no exception, with its courts explicitly giving originalism primacy over all other interpretive doctrines for discerning the meaning of an ambiguous provision of its constitution.

Yet, the Arizona state courts have not engaged with the views of the state’s founders on key issues concerning the purposes of punishment, as demonstrated by the founders’ words and deeds.  Arizona was founded in 1912 as a progressive project and the founding generation — from the convenors of the 1910 constitutional convention and the courts to the people themselves — held and acted on progressive views of punishment.  They rejected the idea that any person was beyond reform and insisted that the state had an obligation to bring about reform of persons convicted of crime.  Progressive ideals were a core aspect of the founding of Arizona, and those ideals provide a compelling reason to give independent meaning to Arizona’s bar on cruel and unusual punishment in ways that call for judicial skepticism of any punishment that does not serve the progressive ideals of rehabilitation and reformation.

Reviewing the application of Miller and juvenile LWOP in the federal system

This AP story, headlined "Juvenile lifer seeks reprieve amid broader push for leniency," focuses on one high-profile juvenile lifer case while also discussing some of the other realities of juve LWOP in the federal system since the Supreme Court's major Eighth Amendment ruling in Miller v. Alabama a decade ago.  Here are some excerpts from a lengthy piece worth reading in full:

Shortly after Riley Briones Jr. arrived in federal prison, he cut his long, braided hair in a symbolic death of his old self. As a leader of a violent gang and just shy of 18, Briones drove the getaway car in a robbery turned deadly on the Salt River-Pima Maricopa Indian Community outside Phoenix in 1994. He was convicted of murder and given a mandatory sentence of life without parole.

In prison, he has been baptized a Christian, ministers to other inmates who call him Brother Briones, got his GED and has a spotless disciplinary record, his attorneys say in their latest bid to get the now 45-year-old’s sentence cut short. “He’s clearly on the side of the line where he should be walking free,” said his attorney, Easha Anand.

The U.S. Supreme Court opened the door for that possibility with a 2012 ruling that said only the rare, irredeemable juvenile offender should serve life in prison. Over the past decade, most of the 39 defendants in federal cases who received that sentence have gotten a reprieve and are serving far fewer years behind bars. Meanwhile, more than 60 legal experts and scholars have asked the federal government to cap sentences for juvenile offenders at 30 years, create a committee to review life sentences in the future and reconsider its stance in Briones’ case.

But the move toward greater leniency has been gradual and not without resistance. Briones is among those whose life sentences have been upheld in recent years, though he still has another chance. Prosecutors in his case have opposed a reduced term. They argue despite Briones’ improvements, he minimized his role in the gang and its crimes that terrorized Salt River amid an explosion of gang violence on Native American reservations in the 1990s....

Briones’ case became eligible for resentencing after the Supreme Court’s 2012 decision in Miller v. Alabama.  It was part of a series of cases in which the court found minors should be treated differently from adults, partly because of a lack of maturity.  The court previously eliminated the death penalty for juveniles and barred life-without-parole sentences for juveniles except in cases of murder.  A handful of the defendants in the 39 federal cases — most of whom are minorities — have been released from prison.

The Feb. 17 letter seeking reform from the Justice Department pointed to statistics that show the median sentence for adults convicted of murder in the federal system is 20 years — nearly half the median for the juvenile offenders.  “Taking a life is really, really serious, and I don’t belittle that at all,” said Mary McCord, executive director of the Institute for Constitutional Advocacy and Protection at the Georgetown University Law Center, one of the signatories.  “But a full life in prison when you’re a juvenile and you’re talking about 40, 50, 60 years in prison is exceedingly excessive probably in almost every case and not consistent with typical sentences for homicides, even adults.”...

The California-based Criminal Justice Legal Foundation, a victims rights group, said changes in the law that continually allow juvenile offenders to get another shot at freedom are damaging for the families, communities and the criminal justice system. “Some of these crimes are just very horrible, and the impacts on the families are substantial, and they never go away,” said the group’s president, Michael Rushford.

The Campaign for the Fair Sentencing of Youth has long argued the changes a person makes once they’ve entered prison should matter, and juveniles offenders should be able to live as adults outside prison walls.  “If the facts of the crime are always going to be the overpowering force, then Miller isn’t going to be meaningfully interpreted to outweigh all this positive growth,” said Rebecca Turner, who tracks the federal cases for the group.

The federal court in Arizona has resentenced more of the juvenile offenders to life in prison than any other state. Texas has two juvenile offenders who are serving life but weren’t able to be resentenced because of how courts interpreted Miller v. Alabama. South Carolina resentenced one inmate to life.  All three federal cases in Arizona were from Native American reservations, where the federal government has jurisdiction when the suspect, victim or both are Native American for a set of major crimes, including homicide. The penalties, in general, are stricter than if the crimes happened off the reservation and the cases ended up in state court.

South Carolina Supreme Court engages in notable debate over how it engages in capital proportionality review

This local article from South Carolina, headlined "‘Our system is broken.’ SC Supreme Court justice assails death sentence in Upstate case," reports on an interesting ruling from the top court in the Palmetto State. Here are the basics and the context from the press piece:

An associate justice of the South Carolina Supreme Court issued a rare and blunt dissent Wednesday in an Upstate death penalty case about a 1999 convenience store robbery that four of the five justices agreed to uphold.

“In the nearly 13 years I have served on this Court, I have voted to affirm eleven death sentences on direct appeal and have never dissented,” Associate Justice Kaye Hearn wrote in her 14-page dissent. But the spur-of-the moment killing committed by Richard Moore in 1999 during a convenience store robbery in Spartanburg County is so different from the usual brutal premeditated slayings for which South Carolina juries give out the death penalty that condemning Moore to death is disproportional, or so far out of line, as not to be lawful, Hearn wrote.

“The death penalty should be reserved for those who commit the most heinous crimes in our society, and I do not believe Moore’s crimes rise to that level,” Hearn wrote, calling South Carolina’s system “broken.”

In Wednesday’s majority opinion, four Supreme Court justices upheld Moore’s death sentence in a case that centered on the issue of whether the sentence was proportional, or roughly the same as, other death sentences for similar crimes. The majority, in an opinion written by Chief Justice Donald Beatty, wrote that Moore’s crime had the aggravating factors set out in the law — such as killing during an armed robbery — that qualified a person for the death penalty, Moore, now 57, has been on South Carolina’s death row 21 years.

The full ruling in Moore v. Stirling, Opinion No. 28088 (S.C. April 6, 2022), is available at this link.  Here is how the majority opinion starts:

Richard Bernard Moore ("Moore") filed a petition for a writ of habeas corpus challenging the proportionality of the death sentence that was imposed for his murder conviction. The Court ordered briefing and granted Moore's motion to argue against the precedent of State v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982).  In Copeland, the Court discussed the requirement in S.C. Code Ann. § 16-3-25(C)(3) (2015) that this Court undertake a comparative proportionality review of "similar cases" in death penalty matters.  After review of the record and applicable law and consideration of the parties' arguments, we clarify Copeland and note the Court is not statutorily required to restrict its proportionality review of "similar cases" to a comparison of only cases in which a sentence of death was imposed.  We conclude, however, that Moore has not established that he is entitled to habeas relief.

And here is how the dissent begins:

This Court has never found a single death sentence disproportionate dating back to 1977, the first time comparative proportionality review was required by the General Assembly. This includes the forty-three individuals who have been executed by the State of South Carolina during this modern era of capital punishment, and all of the thirty-five inmates currently housed on death row who have exhausted their direct appeal.  The State characterizes these statistics — currently, approximately zero for seventy-seven — as proof that our capital sentencing scheme functions as it should.  I write separately to express my view that our system is broken and to disagree with that part of the majority opinion which finds Petitioner Richard Moore's sentence proportionate to his crime.

Might Texas be on the verge of executing an innocent woman?

The question in the title of this post is prompted by this AP article discussing the case of Melissa Lucio, who is scheduled to be executed by the state of Texas in three weeks.  Here are excerpts:

During hours of relentless questioning, Melissa Lucio more than 100 times had denied fatally beating her 2-year-old daughter. But worn down from a lifetime of abuse and the grief of losing her daughter Mariah, her lawyers say, the Texas woman finally acquiesced to investigators. “I guess I did it,” Lucio responded when asked if she was responsible for some of Mariah's injuries.

Her lawyers say that statement was wrongly interpreted by prosecutors as a murder confession — tainting the rest of the investigation into Mariah’s 2007 death, with evidence gathered only to prove that conclusion, and helping lead to her capital murder conviction. They contend Mariah died from injuries from a fall down the 14 steps of a steep staircase outside the family’s apartment in the South Texas city of Harlingen.

As her April 27 execution date nears, Lucio’s lawyers are hopeful that new evidence, along with growing public support — including from jurors who now doubt the conviction and from more than half the Texas House of Representatives — will persuade the state’s Board of Pardons and Paroles and Gov. Greg Abbott to grant an execution reprieve or commute her sentence....

Lucio's lawyers say jurors never heard forensic evidence that would have explained that Mariah's various injuries were actually caused by a fall days earlier. They also say Lucio wasn't allowed to present evidence questioning the validity of her confession.

The Texas Attorney General’s Office maintains evidence shows Mariah suffered the “absolute worst” case of child abuse her emergency room doctor had seen in 30 years. “Lucio still advances no evidence that is reliable and supportive of her acquittal,” the office wrote in court documents last month....

Lucio, 53, would be the first Latina executed by Texas and the first woman since 2014. Only 17 women have been executed in the U.S. since the Supreme Court lifted its ban on the death penalty in 1976, most recently in January 2021.

In their clemency petition, Lucio’s lawyers say that while she had used drugs, leading her to temporarily lose custody of her children, she was a loving mother who worked to remain drug-free and provide for her family. Lucio has 14 children and was pregnant with the youngest two when Mariah died....

In 2019, a three-judge panel of the 5th U.S. Circuit Court of Appeals overturned Lucio’s conviction, ruling she was deprived of “her constitutional right to present a meaningful defense.” However, the full court in 2021 said the conviction had to be upheld for procedural reasons, “despite the difficult issue of the exclusion of testimony that might have cast doubt on the credibility of Lucio’s confession.”

Three jurors and one alternate in Lucio’s trial have signed affidavits expressing doubts about her conviction. “She was not evil. She was just struggling. ... If we had heard passionately from the defense defending her in some way, we might have reached a different decision,” juror Johnny Galvan wrote in an affidavit.

In a letter last month to the Board of Pardons and Paroles and to Abbott, 83 Texas House members said executing Lucio would be “a miscarriage of justice.”...

Abbott can grant a one-time, 30-day reprieve. He can grant clemency if a majority of the paroles board recommends it. The board plans to vote on Lucio’s clemency petition two days before the scheduled execution, Rachel Alderete, the board’s director of support operations, said in an email. A spokeswoman for Abbott’s office did not return an email seeking comment.

Abbott has granted clemency to only one death row inmate, Thomas Whitaker, since taking office in 2015. Whitaker was convicted of masterminding the fatal shootings of his mother and brother. His father, who survived, led the effort to save Whitaker, saying he would be victimized again if his son was executed. Lucio’s supporters have said her clemency request is similar in that her family would be retraumatized if she’s executed.

No new SCOTUS cert grants, though three Wooden GVRs highlights ACCA's remaining wackiness

Based on a notable number of criminal law relists flagged here at SCOTUSblog by John Elwood, I was hoping there might be something interesting for sentencing fans on this morning's Supreme Court order list.  But the Justices today added no new cases to the SCOTUS docket. 

The Justices did GVR (grant, vacate, remand) three cases based on Wooden v. US (basics here, analysis here), which I suppose serves as a reminder that all federal courts will continue to struggle with how to apply the the Armed Career Criminal Act (ACCA) for the foreseeable future.  Sigh.  (A comment over at SCOTUSblog amusingly asked "Does sending back 3 cases for Wooden in the same order list count as one incident?"  The lawprof in me wants to correct the question to say "one occasion," but anyone who read this far likely gets the ACCA joke.)

A second chance for Prez Biden to follow his proclamation about Second Chance Month with some clemency grants

In this post last year, I highlighted some language from the White House's "Proclamation on Second Chance Month, 2021" while stressing that Prez Biden has one particularly important second chance power, namely his historic constitutional clemency authority.  But, a year later, we are sadly still without a single clemency grant from Prez Biden — we had three from Prez Trump by this point in his term — and yet we do now have another White House second chance proclamation.  Here are some passages (and my added emphasis):

April marks Second Chance Month, when we reaffirm the importance of helping people who were formerly incarcerated reenter society. America is a Nation of second chances, and it is critical that our criminal and juvenile justice systems provide meaningful opportunities for rehabilitation and redemption.  It is also vital that we address both the root causes of crime and the underlying needs of returning citizens using resources devoted to prevention, diversion, reentry, trauma-informed care, culturally-specific services, and social support.  By supporting people who are committed to rectifying their mistakes, redefining themselves, and making meaningful contributions to society, we help reduce recidivism and build safer communities.

Every year, over 640,000 people are released from State and Federal prisons.  More than 70 million Americans have a criminal record that creates significant barriers to employment, economic stability, and successful reentry into society.  Thousands of legal and regulatory restrictions prevent these individuals from accessing employment, housing, voting, education, business licensing, and other basic opportunities.  Because of these barriers, nearly 75 percent of people who were formerly incarcerated are still unemployed a year after being released.

We must rethink the existing criminal justice system and whom we send to prison and for how long; how unaddressed trauma and abuse create pipelines to incarceration; how people are treated while incarcerated; how prepared they are to reenter society once they have served their time; and how the racial inequities that lead to disproportionate numbers of incarcerated people of color and other underserved groups.

My Administration recognizes that making the criminal and juvenile justice systems more equitable, just, and effective requires a holistic approach.  It requires eliminating exceedingly long sentences and mandatory minimums that keep people incarcerated longer than they should be. It requires quality job training and educational opportunities during incarceration. It requires providing formerly incarcerated individuals with opportunities to enter the workforce, reunite with their families, find stable and safe homes, and access health care.  It requires expunging and sealing certain criminal records so that people’s futures are not defined by their past....

NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 2022 as Second Chance Month.  I call upon all government officials, educators, volunteers, and all the people of the United States to observe the month with appropriate programs, ceremonies, and activities.

I like the all the sentiments in this proclamation, but Prez Biden has to start "walking the walk" instead of just "talking the talk."  The federal sentencing system has many individuals serving "exceedingly long sentences and mandatory minimums that keep people incarcerated longer than they should be."  As one detailed example, this terrific recent research paper authored by Alex Fraga, who serves as a Senior Research Associate at Ohio State's Drug Enforcement and Policy Center, documents the thousands of persons subject to federal life sentences for drug offenses.   Prez Biden can and should, today and tomorrow and every day he is in office, use his clemency pen to begin the process of "eliminating exceedingly long sentences" in the federal system.  To its credit, this proclamation notes that " racial inequities that lead to disproportionate numbers of incarcerated people of color and other underserved groups."  Dr. Fraga's report highlights this reality in one context, as she details at lengthy just how "racial disparity in the imposition of life or de facto life sentences in the federal system for drug offenses is glaring."  Again, Prez Biden can take direct action to start to remedy these problems with some commutation grants.

Turning to the discussion of re-entry, the proclamation rightly call for more "expunging and sealing [of] certain criminal records so that people’s futures are not defined by their past."  However, in the federal criminal justice system, there is currently no statutory mechanism for expunging or sealing of any federal criminal records, and thus only the pardon power can eliminate a federal criminal record creating "significant barriers to employment, economic stability, and successful reentry into society."  Of course, since millions of Americans labor with federal criminal records, it would be unrealistic to expect Prez Biden or any president to conduct mass pardoning.  But it would still be quite important and impactful, while preaching about second chances, to at least do some pardoning of at least a few who obviously deserve this kind of second chance.  And, to be potentially more effective in this context and others, Prez Biden should be urging Congress to enact federal statutory tools for expungement and record sealing comparable to what exists (and is often getting expanded) in every single state across our great nation.  

I could go on and on, but I will close simply by asserting that it feels a bit like an April Fool's joke for the President to "call upon all government officials, educators, volunteers, and all the people of the United States to observe the [Second Chance] month with appropriate programs, ceremonies, and activities" when he himself so far has done so little direct second chance work.  Sigh.

Prior related post from last year:

• How about some clemency grants from Prez Biden to go with Second Chance Month, 2021 proclamation? 

"Releasing Older Prisoners Convicted of Violent Crimes: The Unger Story"

The title of this post is the title of this new article now available via SSRN and authored by Michael Millemann, Jennifer Chapman and Samuel Feder. Here is its abstract:

This article is a retrospective analysis of the significant Maryland decision, Unger v. State, which resulted in one of the most interesting and important unplanned criminal justice experiments in Maryland and national history.  On May 24, 2012, Maryland’s highest court released a decision that shocked the Maryland legal world and gave older life-sentenced Maryland prisoners their first real hope of release in decades.  In Unger v. State, the Maryland Court of Appeals made retroactive a 1980 decision that had invalidated a historic instruction that Maryland judges had given juries in criminal cases for over 150 years.  In that instruction, judges told the lay jurors that they, not the judge, were the ultimate judges of the law, and what the judge said was advisory only. 

A fair reading of the Unger decision was that all prisoners convicted before 1981 were entitled to new trials.  Subsequent decisions confirmed this reading.  Over six years, 200 of these older prisoners impacted by the Unger decision were released on probation.  This article examines the jury-determines-the-law instruction, the Unger decision, and the implementation of Unger, largely through the releases of older prisoners convicted of violent crimes.  In this article, we identify what we believe is important about the Unger story, not just in Maryland but also nationally, including the impact of race in criminal justice, the ability to release older prisoners with appropriate support, and how the lessons learned from the Unger decision can provide a model for reentry programs.

SCOTUS grants cert in Arizona capital case to address state limits on collateral review

The US Supreme Court granted cert in three cases this morning, and one involved a cert petition from a defendant on Arizona's death row.  However, the issue on which SCOTUS granted cert in Cruz v. Arizona is likely only to excite collateral review and habeas fans:

Issue: Whether the Arizona Supreme Court’s holding that Arizona Rule of Criminal Procedure 32.1(g) precluded post-conviction relief is an adequate and independent state-law ground for the judgment.

But while this statement of the issue may not seem all that exciting, these paragraphs from this amicus brief in support of cert from Habeas Scholars suggests a lot is at stake here:

Amici urge this Court to grant certiorari — or summarily reverse — to stop Arizona’s use of collateral procedure to discriminate against established constitutional rights.  “[S]tate courts have the solemn responsibility, equally with the federal courts ‘to guard, enforce, and protect every right granted or secured by the constitution of the United States.…’” Steffel v. Thompson, 415 U.S. 452, 460-61 (1974) (quoting Robb v. Connolly, 111 U.S. 624, 637 (1884)). They cannot selectively disregard particular constitutional rights....

This Court’s intervention is both necessary and appropriate.  The Arizona decision results in the clear violation of a federal right, and the Arizona Supreme Court’s violation of the Supremacy Clause itself merits this Court’s intervention. Moreover, there is jurisdiction to review the judgment because the state ground is neither adequate to bar review nor independent of federal law. And because Arizona appears to be a singular outlier in its treatment on collateral review of the federal rights at issue here, correction of this error would not affect the practices of other states. Instead of being disruptive, reversal here would restore the appropriate federal-state balance, in accord with this Court’s Supremacy Clause precedents.

Varying perspectives on Illinois's new prosecutor-initiated resentencing law

A helpful colleague made sure I did not miss some notable recent stories about the implementation of Illinois's new prosecutor-initiated resentencing law (and some noable resistance thereto).  Here are headlines and links:

From Injustice Watch, "Man walks out of prison 28 years early — with the help of a prosecutor"

From the Chicago Sun-Times, "Judge questions constitutionality of resentencing law as prosecutors ask him to reconsider case of convicted burglar"

From the Chicago Tribune, "Questions remain as resentencing initiative championed by Kim Foxx is slow out of the gate in Cook County"

Here is the start of the Tribune piece that highlights just some of the terms of the Illinois resentencing debate:

Cook County prosecutors’ new effort to reduce sentences for some longtime inmates — hailed by State’s Attorney Kim Foxx and other reform advocates as a way to right the wrongs of the tough-on-crime era — will have an uphill climb before some judges, if its first week in court is any indication.

Associate Judge Stanley Sacks sat on the bench with a scowl Thursday as prosecutors presented their request to resentence Charles Miles, who was given a total of 25 years in two burglary cases. “I’ve been doing this for 30-plus years. I make up my own mind, not Gov. (J.B.) Pritzker, not Kimberly Foxx, either,” he said.

Miles is one of three people initially identified by prosecutors as a candidate for resentencing under a new state law allowing prosecutors to proactively request more lenient sentences for people, though the ultimate decision is still up to a judge.

On the bench Thursday, Sacks insisted he had not yet made any decisions about whether Miles deserved a new sentence and said he would not weigh in on the statute’s constitutionality.

But he could not disguise his contempt for the idea in general. He repeatedly questioned why Miles had a pro bono attorney in the courtroom if prosecutors were also advocating for his release, and wondered openly if he had jurisdiction to determine a new sentence. “It’s constitutional? Takes away the governor’s only right? What he does is resentence people through clemency,” Sacks said. “Isn’t that something for the governor to do?”

“That’s one avenue, but that’s mercy. There’s also justice,” said Assistant State’s Attorney Nancy Adduci, who explained the new law simply “re-vest(s) jurisdiction” back to the courts so a judge can consider a new sentence.

Applying RLUIPA, Supreme Court rules 8-1 in favor of condemned Texas inmate seeking religious touching in execution chamber

The US Supreme Court handed down a lengthy and notable death penalty administration ruling today with Ramirez v. Collier, No. 21-5592 (S. Ct. Mar. 24, 2022) (available here). Chief Justice Roberts authored the opinion of the Court, which every Justice other than Justice Thomas joined. Justices Sotomayor and Kavanaugh did author concurring opinions.  Here is the start and end of the Court's opinion:

A Texas jury sentenced John Ramirez to death for the brutal murder of Pablo Castro. In this litigation, Ramirez does not challenge his conviction. Nor does he challenge his sentence. He asks instead that his long-time pastor be allowed to pray with him and lay hands on him while he is being executed. He says that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C. §2000cc et seq., requires this accommodation. Ramirez sought a preliminary injunction ordering Texas to permit his religious exercise if the State went forward with his execution. The District Court and Court of Appeals declined to grant such relief. We then stayed the execution and granted certiorari....

We hold that Ramirez is likely to prevail on the merits of his RLUIPA claims, and that the other preliminary injunction factors justify relief. If Texas reschedules Ramirez’s execution and declines to permit audible prayer or religious touch, the District Court should therefore enter appropriate preliminary relief. The judgment of the United States Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

Here is the start of Justice Thomas's dissenting opinion:

Petitioner John Henry Ramirez stabbed Pablo Castro 29 times during a robbery that netted $1.25.  Castro bled to death in a parking lot. Since that day, Ramirez has manufactured more than a decade of delay to evade the capital sentence lawfully imposed by the State of Texas.  This Court now affords yet another chance for him to delay his execution. Because I think Ramirez’s claims either do not warrant equitable relief or are procedurally barred, I respectfully dissent.

Right on Crime highlights "Second Look for conservative justice and cost-savings"

The folks at Right on Crime has this interesting new coverage of "Second Look in Texas."  This one-pager, produced by Nikki Pressley, carries the title that is quoted in this title of this post, and here is the main text (along with the interesting graphic I have reprinted):

Texas has the harshest parole eligibility guidelines for juvenile offenders of any state, allowing some to be imprisoned without the possibility of parole for 40 years. Even worse, many of these youth are convicted through the Law of Parties, meaning they were merely an accessory to the actual crime and never pulled the trigger.  Science proves that continued brain development allows a healthy brain to mature and make more logical decisions far before someone completes a 40-year sentence, and recidivism rates for these offenders is extremely low.

Second Look legislation would lower the time until parole eligibility for juvenile offenders from 40 years to 20 years.  This change should also be retroactive, allowing adults currently serving time in prison for a crime committed as a juvenile to also have the opportunity for earlier parole.  Proving to be little or no threat to public safety and simultaneously saving hundred of thousands of taxpayer dollars, Second Look legislation is a win-win reform.

And here are "key points" stressed:

• It costs $25,000 a year to house each inmate.
• As of 2020, over 1,400 individuals were serving life or a sentence of at least 40 years in Texas for a crime they committed while under the age of 18.
• In states that have passed Second Look legislation, recidivism has been extremely low.

Some first-cut musings on US v. Wooden, the latest SCOTUS effort to make ACCA less wacky

The US Supreme Court started the past work week by handing down one opinion, a sentencing win for a federal criminal defendant in US v. Wooden, No. 20-5279 (S. Ct. March 7, 2022) (available here).  Though all nine Justices voted in favor of the defendant, there were five opinions (with Justice Kagan writing for the Court, and four concurrences).  I could rattle off a few dozen thoughts about all the opinions, but I will close out the week with just these five musings, presented roughly from the general to the specific:

1.  Sentencing at SCOTUS: By various metrics the current Supreme Court is extremely conservative, and yet every single Justice voted in favor of William Wooden on a statutory issue after a majority of circuit courts had sided with the government.  In the Blakely, Booker, Roper, Gall, Kimbrough, Graham era, I had gotten in the habit of calling SCOTUS the most pro-defendant appellate court in the nation on sentencing issues.  I no longer think that is an accurate description, but Wooden is still a very important reminder that certain sentencing issues can and will garner votes from an array of Justices across the jurisprudential spectrum.

2.  ACCA in application is ridiculous: The idea behind the Armed Career Criminal Act (ACCA) makes sense: give longer sentences to dangerous people with guns who have a really bad criminal history.  But Wooden is also a reminder how crazy this statute functions in operation.  The actual offense behavior is largely irrelevant — William Wooden merely had a gun in his home for self protection, some have been tripped by merely possessing shotgun shells — and figuring out what criminal history triggers a 15-year mandatory minimum (as opposed to a 10-year maximum) is often a parlor game of such nonsensical semantics it would make Franz Kafka blush.

3.  Justices as magistrates with no majesty: Though a few concurrences had some flair (see below), the opinion of the Court and some others felt technocratic, resolving only this one case without having much to say about ACCA or any other issues.  Some may praise an opinion with so little majesty as a model of judicial modesty, but Justice Gorsuch's concurrence highlighted that not much really got resolved even as the Justices remained modest.  More generally, though the Wooden case implicates issues ranging from violent crimes to mandatory minimums, from Second Amendment rights to repeat offenders, few Justices wanted to do much more than parse definitions, hypos and legislative history.  Perhaps saying so little is how this case came out unanimously, but label me uninspired.

4.  Justice Kavanaugh as a mens rea maven: I have been wondering what criminal justice issues might be of particular interest and concern to Justice Kavanaugh, and his Wooden concurrence reveals he could develop into a mens rea maven.  Though his concurrence was mostly to push back against Justice Gorsuch's paean to the rule of lenity, Justice Kavanagh concludes by stressing his eagerness to "continue to vigorously apply (and where appropriate, extend) mens rea requirements" in statutory interpretation cases.  We might see more of what he means later this Term, as the pending case concerning doctors federally prosecuted for over-prescribing opioids turns on mens rea matters.  And litigants should be looking out for "appropriate" cases in which Justice Kavanaugh might be inclined to "extend" mens rea requirements.

5.  Justice Gorsuch as liberty lover: The US Constitution's preamble speaks of the document as a means to "secure the Blessings of Liberty to ourselves and our Posterity."   William Wooden, for possessing a gun in his home with his past criminal history, was punished with liberty deprivation for 15+ years in federal prison.  Only Justice Gorsuch mentions liberty in any of the many Wooden opinions, and he does so seven times.  Here are just a few choice mentions:

• "any reasonable doubt about the application of a penal law must be resolved in favor of liberty" 
• "But where uncertainty exists, the law gives way to liberty."
• "If the law inflicting punishment does not speak 'plainly' to the defendant’s conduct, liberty must prevail." 

I was pleased that Justice Gorsuch, joined by Justice Sotomayor, stressed liberty and thus brought the opinions in the Wooden case to a somewhat more satisfying end.  And I hope some of these "liberty in the face of uncertainty" sentiments find future expression in the work of many judges and Justices.

Prior related posts:

• SCOTUS rules unanimously in favor of defendant in latest Armed Career Criminal Act ruling
• Rounding up some accounts of the latest ACCA wackiness in Wooden 

North Carolina Gov, following recommendation of state Juvenile Sentence Review Board, commutes sentence of three convicted of murder as teens

As detailed in this North Carolina Gov press release, "Governor Cooper has commuted the sentences of three people who were convicted for crimes committed when they were teenagers. The commutations follow an intensive review of their cases, including the length of their sentences, their records in prison, and their readiness to succeed outside of prison." Here is more from the press release (with links from the original):

The commutations are the first recommended to the Governor by the Juvenile Sentence Review Board which he established by Executive Order last year. The commutation applications were thoroughly reviewed by the Office of Executive Clemency, the Office of the General Counsel and the Governor.  These commutations end prison sentences on time served.

The creation of the Review Board followed the change in North Carolina law which raised the age of juvenile jurisdiction to include 16- and 17-year-olds, making North Carolina the last state in the nation to do so.  Studies of brain development and psychology show fundamental differences between juvenile and adult minds and behavior, and state and federal law treat children differently from adults for the purpose of sentencing.

The Review Board was also part of a series of recommendations from the Governor’s Task Force for Racial Equity in Criminal Justice (TREC) that has worked to rectify racial disparities in the criminal justice system. More than 80 percent of people committed to North Carolina prisons for crimes they committed as juveniles are people of color.

“North Carolina law continues to change to recognize that science is even more clear about immature brain development and decision making in younger people,” Cooper said. “As people become adults, they can change, turn their lives around, and engage as productive members of society.”

The three people whose sentences were commuted are:

• April Leigh Barber, 46, who has served 30 years in prison for her role at age 15 in the murders of her grandparents, Lillie and Aaron Barber, in Wilkes County. While incarcerated, Ms. Barber has been consistently employed and has participated in significant programming, including earning her G.E.D. and paralegal certificate. Link to commutation.
• Joshua McKay, 37, who has served 20 years in prison for the murder at age 17 of Mary Catherine Young in Richmond County. While incarcerated, Mr. McKay has been consistently employed, including as a carpenter and welder. Mr. McKay’s projected release date absent this commutation would have been in November 2022. Link to commutation.
• Anthony Willis, 42, who has served 26 years in prison for the murder at age 16 of Benjamin Franklin Miller in Cumberland County. While incarcerated, Mr. Willis has been consistently employed and has completed five college degrees. Link to commutation.

The three people will be subject to post-release supervision by Community Corrections at the North Carolina Department of Public Safety to help them succeed and avoid missteps when they return to their communities.  “Most of the individuals who enter prisons will return to their communities one day. Providing high quality, evidenced based treatment and programming is a top priority for our prison system,” said Department of Public Safety Secretary Eddie Buffaloe. “These commutations should inspire individuals who are incarcerated to use all available resources to better themselves and prepare for a successful return to society.”

The Review Board continues to review petitions from those who were incarcerated for crimes committed as juveniles, and looks at many factors in its review, including rehabilitation and maturity demonstrated by the individual, record of education or other work while incarcerated, record of good behavior or infractions, input from the victim or members of the victim’s family, and more.

US Sentencing Commission releases big new report titled "Compassionate Release: The Impact of the First Step Act & COVID-19 Pandemic"

The US Sentencing Commission indicated that is was working on a big new compassionate release report, and I am pleased to see from my email inbox that it was released today.  Here is the text about the report that was in the email I received:

The United States Sentencing Commission (“Commission”) today released a new report that examines trends in compassionate release during fiscal year 2020 in light of the enactment of the First Step Act of 2018, and the COVID-19 pandemic.

Senior U.S. District Judge Charles R. Breyer, Acting Chair of the Commission, stated “I am pleased that the Commission has issued this comprehensive report on compassionate release trends in fiscal year 2020. This report builds on the Commission’s significant work in this area, including a report on the first year of implementation of the First Step Act and the Commission’s previously released quarterly data reports analyzing motions for compassionate release.”

Acting Chair Breyer noted, “Prior to the enactment of the First Step Act, only the Director of the Bureau of Prisons could file compassionate release motions. The First Step Act enables defendants to file these motions directly in federal court after exhausting administrative requirements. These changes, coupled with the pandemic, resulted predictably in a dramatic increase in both motions for and grants of compassionate release.”

According to the report, in fiscal year 2020, courts decided 7,014 compassionate release motions, granting compassionate release to one-quarter (25.7%) of those offenders. The number of offenders granted relief increased more than twelvefold compared to 2019 — the year immediately following passage of the First Step Act. Courts cited health risks associated with COVID-19 as at least one reason for relief in 71.5% of grants.

“Unfortunately, in the intervening time between enactment of the First Step Act and the COVID-19 pandemic, the Commission lost its quorum, rendering it unable to amend the compassionate release policy statement. The absence of this guidance has resulted in a lack of uniformity in how compassionate release motions are considered and applied across the country,” said Judge Breyer. The Report identified considerable variability in the application of compassionate release across the country among those offenders in the study group—ranging from a grant-rate high of 47.5% in the First Circuit to a low of 13.7% in the Fifth Circuit.

“This report underscores why it is crucial for the Commission to regain a quorum to again have the ability to address important policy issues in the criminal justice system, such as compassionate release,” added Breyer. “Nevertheless, I am proud of the extensive work the Commission did to compile this insightful data. I believe this report will provide valuable information to lawmakers, the Courts, advocacy organizations, and the American public.”

This full USSC report, available here, runs 86 pages and I hope to find time in the coming days to highlight a variety of findings from the report. The USSC has created this two-page infographic about the report with a few data highlights, and this USSC webpage provides an overview and an extended list of "key findings."

Though I am VERY excited to dig into this report and look forward to exploring what lessons these data may have for any possible revision of guidelines and practices related to compassionate release, I am a bit disappointed that this new USSC report only covers developments and data through September 2020.  Though these data capture the many developments through the first part of the COVID pandemic, there still had then not been any significant circuit rulings about the operation of compassionate release and other USSC data runs have detailed that there were an additional 10,000 motions and about 1500 addition compassionate release grants in just the six months after September 2020.  I fully understand why the USSC could not do this kind of detailed report on all cases up to the present, but everyone should not lose sight of the fact that this new report is already somewhat dated because it only captures data through September 2020.

Rounding up some accounts of the latest ACCA wackiness in Wooden

I hope to find some time in the coming days to do some original commentary about the Supreme Court's unanimous ruling in US v. Wooden, No. 20-5279 (S. Ct. March 7, 2022) (available here).  I see interesting, telling and problematic aspects to all the opinion in the case, but for now I need to be content here to round up some of what others are saying:

From Law360, "'Night Of Crime' Burglar Is No Career Criminal, Justices Say"

From Slate, "Why All Nine Justices Overturned a Ludicrously Cruel Prison Sentence"

From SCOTUSBlog, "Perhaps defining an “occasion” is not so difficult after all"

From The Volokh Conspiracy, "Justices Spar Over How to Interpret the Armed Career Criminal Act"

A deep dive into federal prison struggles in response to the COVID pandemic

NPR has this lengthy new piece headlined "As COVID spread in federal prisons, many at-risk inmates tried and failed to get out," that effectively chronicles some of the ineffectiveness of the federal response as COVID worked its way through its massive prison systems.  Here are just a few snippets from the piece:

As of early March, officials at the Federal Bureau of Prisons (BOP) say 287 federal inmates have died from COVID-19, a count that does not include deaths in privately managed prisons.  Bureau officials have been saying since the beginning of the pandemic that they have a plan to keep the situation under control, but an NPR analysis of federal prison death records suggests a far different story.

The federal prison system has seen a significant rise in deaths during the pandemic years. In 2020, the death rate in prisons run by the BOP was 50% higher than the five years before the pandemic.  Last year, it was 20% higher, according to the NPR analysis of age-adjusted death rates.

Of those who died from COVID-19, nearly all were elderly or had a medical condition that put them at a higher risk of dying from the virus, NPR found.  Many of them seemed to sense their fate — and had tried to get out.  And those who made their case in court often faced a slow and complicated process that was unable to meet the pace of a rapidly spreading virus....

It's difficult to get a full view of how the federal prison system has responded to the pandemic at each of its 122 prisons nationwide, but NPR spoke with several current bureau employees who described issues that went against that plan, including the transfer of COVID-positive inmates between prisons and units.  "Our agency is reactive and not proactive. You know, they waited until it got out of hand and then tried to fix things, but by then it was too late," said Aaron McGlothin, a warehouse worker foreman and local union president at the federal prison in Mendota, Calif....

The determination for who can be sent home — and who cannot — is solely up to the BOP, and by the middle of November 2020, individual wardens became the final authority.  After [then Attorney General] Barr urged the use of home confinement, the BOP added its own criteria to the attorney general's list.

Home confinement existed before the pandemic, for certain inmates in the final six months or 10% of their sentence, whichever was less. And those inmates kept going home in this way during the pandemic.  As of early March of this year, more than 38,000 people had been released to home confinement during the pandemic. Of those, about 9,000 — or about 6% of the current federal prison population — were transferred directly because of the CARES Act.

It's unclear how many more people might have been eligible for CARES Act home confinement yet were not released. "CARES Act home confinement is, frankly, a black box," [Allison] Guernsey, of the University of Iowa, said. But she feels certain "we could have been releasing so many more people during the pandemic and we just chose not to."

SCOTUS rules unanimously in favor of defendant in latest Armed Career Criminal Act ruling

The US Supreme Court handed down one opinion this morning, and it is a win for a federal criminal defendant in US v. Wooden, No. 20-5279 (S. Ct. March 7, 2022) (available here).  Here is how Justice Kagan's opinion for the Court gets started:

In the course of one evening, William Dale Wooden burglarized ten units in a single storage facility. He later pleaded guilty, for that night’s work, to ten counts of burglary — one for each storage unit he had entered. Some two decades later, the courts below concluded that those convictions were enough to subject Wooden to enhanced criminal penalties under the Armed Career Criminal Act (ACCA).  That statute mandates a 15-year minimum sentence for unlawful gun possession when the offender has three or more prior convictions for violent felonies like burglary “committed on occasions different from one another.” 18 U.S.C. §924(e)(1).  The question presented is whether Wooden’s prior convictions were for offenses occurring on different occasions, as the lower courts held, because the burglary of each unit happened at a distinct point in time, rather than simultaneously.  The answer is no.  Convictions arising from a single criminal episode, in the way Wooden’s did, can count only once under ACCA.

Interestingly, this ruling also generated four distinct concurrences (some quite short, some longer). Because I need to be off-line most of the rest of today, I will not have a chance to comment on these opinions right away. But I hope commenters might help me try to map out how many hundreds (thousands?) of cases this ruling could impact.

Voting 6-3, SCOTUS reinstates vacated death sentence for Boston Marathon bomber Dzhokhar Tsarnaev

The Supreme Court this morning handed down its ruling in US v. Tsarnaev, No. 20-443 (S. Ct. March 4, 2022) (available here).  When the US Supreme Court back in March 2021 decided to grant cert on the federal government's appeal of the First Circuit's reversal of Boston Marathon bomber Dzhokhar Tsarnaev's death sentence, the smart bet would have been that a majority of Justices were inclined to reinstate that death sentence.  Such a bet looked even smarter after the Supreme Court oral argument in October 2021 which revealed a predictable ideological split and strongly suggested a majority of Justices were inclined to reinstate Tsarnaev's death sentence.  Here is how Justice Thomas's opinion for the Court gets started:

On April 15, 2013, Dzhokhar and Tamerlan Tsarnaev planted and detonated two homemade pressure-cooker bombs near the finish line of the Boston Marathon.  The blasts hurled nails and metal debris into the assembled crowd, killing three while maiming and wounding hundreds.  Three days later, the brothers murdered a campus police officer, carjacked a graduate student, and fired on police who had located them in the stolen vehicle.  Dzhokhar attempted to flee in the vehicle but inadvertently killed Tamerlan by running him over. Dzhokhar was soon arrested and indicted.

A jury found Dzhokhar guilty of 30 federal crimes and recommended the death penalty for 6 of them. The District Court accordingly sentenced Dzhokhar to death. The Court of Appeals vacated the death sentence. We now reverse.

Justice Barrett authored a concurrence joined by Justice Gorsuch which starts this way:

In this case, the First Circuit asserted “supervisory power” to impose a procedural rule on the District Court. Because that rule (which required a district court to ask media-content questions on request in high-profile prosecutions) conflicts with our cases (which hold that a district court has broad discretion to manage jury selection), I agree with the Court that the First Circuit erred.

I write separately to note my skepticism that the courts of appeals possess such supervisory power in the first place.

Justice Breyer authored the sole dissent, which was joined by Justice Sotomayor and mostly by Justice Kagan.  It starts this way:

During the sentencing phase of his murder trial, Boston Marathon bomber Dzhokhar Tsarnaev argued that he should not receive the death penalty primarily on the ground that his older brother Tamerlan took the leading role and induced Dzhokhar’s participation in the bombings.  Dzhokhar argued that Tamerlan was a highly violent man, that Tamerlan radicalized him, and that Dzhokhar participated in the bombings because of Tamerlan’s violent influence and leadership.  In support of this argument, Dzhokhar sought to introduce evidence that Tamerlan previously committed three brutal, ideologically inspired murders in Waltham, Massachusetts. The District Court prohibited Dzhokhar from introducing this evidence.  The Court of Appeals held that the District Court abused its discretion by doing so. 968 F. 3d 24, 73 (CA1 2020).

This Court now reverses the Court of Appeals.  In my view, the Court of Appeals acted lawfully in holding that the District Court should have allowed Dzhokhar to introduce this evidence.

Lots of remarkable new CCRC posts highlighting "The Many Roads From Reentry to Reintegration"

Regular readers should recall me highlighting all the great work being done regularly over at the Collateral Consequences Resource Center, and an array of recent postings at CCRC captures all the incredible content connected to its latest publication of a national report surveying various legal mechanisms for restoring rights titled "The Many Roads to Reintegration."   Today's post links to the main publication and sets the context:

We are pleased to publish the March 2022 revision of our national survey of laws restoring rights and opportunities after arrest or conviction, “The Many Roads from Reentry to Reintegration.” Like the earlier report, this report contains a series of essays on various relief mechanisms operating in the states, including legislative restoration of voting and firearms rights, various types of criminal record relief (expungement and sealing, pardon, judicial certificates), and laws limiting consideration of criminal record in fair employment and occupational licensing.

Drawing on material from CCRC’s flagship resource the Restoration of Rights Project, the report grades each state for the scope and efficacy of its laws in nine different relief categories. Based on these grades, it compiles an overall ranking of the states. As described below, most of the states identified as reform leaders in our 2020 report still rank highly, but several new states have joined them. Half a dozen other states made substantial improvements in their ranking by virtue of progressive legislation enacted in 2020 and 2021, in two cases (D.C. and Virginia) rising from the bottom ten to the top 20.

In addition, over the last couple weeks, CCRC has been highlight parts of this report though these individual postings:

Expungement, Sealing & Set-Aside of Convictions: A National Survey

Fair Chance Employment and Occupational Licensure: A National Survey

Executive Pardon: A National Survey

Judicial Diversion and Deferred Adjudication: A National Survey

Rounding up some reviews of SCOTUS argument in appeals by doctors convicted of opioid drug dealing

As previewed in this prior post, the Supreme Court heard oral argument in two cases on Tuesday morning, Ruan v. United States and Kahn v. United States, which explored the proper legal standards when the federal government looks to prosecute doctors as drug dealers.  I have a chance to listen to part of the argument, and it was both fascinating and frustrating for all sorts of reasons — e.g., the regular use of speeding laws as a hypothetical to explore mens rea standards for a statute in which Congress expressly requires a person to act "knowingly or intentionally" struck me as deeply misguided.  The transcript is available here, and here is a round-up of some review of the argument:

From the AP, "Justices seem to favor docs convicted in pain pill schemes"

From the Courthouse News Service, "Justices grapple with drug charges for pill-mill doctors"

From The Hill, "Supreme Court grapples with drug-dealing convictions for opioid prescribers"

From Reuters, "U.S. Supreme Court mulls 'pill mill' doctors' opioid convictions"

From SCOTUSblog, "In opioids “pill mill” case, justices grapple with physician intent"

From the portion of the oral argument that I was able to listed to, I came away with a sense that the doctor defendants have a reasonable chance of prevailing.  

Will the US Supreme Court be interested in any issues being pressed by Charleston church shooter Dylann Roof?

The question in the title of this post was prompted by this new AP article headlined "Dylann Roof takes church shooting appeal to US Supreme Court."  Here are excerpts:

Attorneys for convicted Charleston church shooter Dylann Roof have asked the U.S. Supreme Court to decide how to handle disagreements over mental illness-related evidence between capital defendants and their attorneys, an issue that has played a role throughout his case over the 2015 racist slayings of nine members of a Black South Carolina congregation.

When a capital defendant who has been ruled competent to stand trial and his attorneys “disagree on whether to present mitigating evidence depicting him as mentally ill, who gets the final say?” Roof’s appellate team wrote in their petition, filed late last month with the high court.  Justices’ consideration is “needed to resolve a deep divide among the lower courts over who — client or lawyer — gets to decide whether mitigation evidence will be introduced at a capital penalty hearing.”

Roof’s self-representation and desire to block any evidence potentially portraying him as mentally ill — even if it could have helped him avoid the death penalty — has been a constant part of his case.  During the sentencing phase of his death penalty trial, Roof fired his legal team and opted to represent himself.  This move, his appellate attorneys have written, successfully prevented jurors from hearing evidence about his mental health, “under the delusion” that “he would be rescued from prison by white-nationalists — but only, bizarrely, if he kept his mental-impairments out of the public record.”

Roof made his decision, his team argued in the petition, “after the district court told him that counsel could introduce evidence depicting him as mentally ill over his objection.” But there is a disconnect, his attorneys argued, between how such cases have been handled in the 4th Circuit versus other jurisdictions, where “the vast majority of state and federal courts hold otherwise, leaving this deeply personal choice to a defendant.”

Notably, this AP article is only focused on one of three questions presented in Roof's recently filed cert petition. Here are all there issues set forth in this document:

1. When a competent capital defendant and his counsel disagree on whether to present mitigating evidence depicting him as mentally ill, who gets the final say?

2. Does the Commerce Clause authorize Congress to regulate an intrastate, noneconomic, violent offense based solely on the defendant’s pre-offense uses of interstate highways, GPS navigation, the Internet, and the telephone?

3. Should federal courts assess legislation enacted under the Thirteenth Amendment using the same tests that apply to legislation enacted under the Fourteenth and Fifteenth Amendments, where the three Reconstruction Amendments share substantively-identical enforcement provisions?

A few of many prior related posts:

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

"Waiting for Relief: A National Survey of Waiting Periods for Record Clearing"

The title of this post is the title of this notable new report by Margaret Love and David Schlussel of the Collateral Consequences Resource Center.  Here is this report's starting portion of its introduction:

Background: This report is the first-ever comprehensive national survey of the period of time a person, who is otherwise eligible to expunge or seal a misdemeanor or felony conviction record, must wait before obtaining this relief. Waiting periods are usually established by statute and can range from 0 to 20 years, a period that typically (though by no means invariably) commences after completion of the court-imposed sentence.  Also typically, during a waiting period the person must be free from certain forms of involvement with the justice system: from a felony conviction, from any conviction, or from any arrest, again depending on state law.  These and other conditions and circumstances may extend (or occasionally shorten) the length of a waiting period in specific cases. 

Contents of the Report: Following this introduction, the report consists of two 50-state Tables, one showing the waiting periods applicable to clearing of misdemeanors, and the other showing the waiting periods applicable to clearing of felonies, with states that have no general record clearing listed at the bottom of each table.  The Tables are followed by maps showing the geographical distribution of waiting periods for each type of conviction.  The maps are followed by an appendix describing in greater detail the laws governing waiting periods in each of the jurisdictions studied.

"Dead Right: A Cautionary Capital Punishment Tale"

The title of this post is the title of this intriguing new article authored by Joseph Margulies, John Blume and Sheri Lynn Johnson now available via SSRN. Here is its abstract:

At least 228 people executed in the modern era — or more than one in every seven — were right too soon.  That is, they had claims in their case that today would render their execution unconstitutional, but were killed because of a legal regime that arrived too late.  Roughly 30% of our total include the children and persons with intellectual disability who were executed prior to Roper v. Simmons and Atkins v. Virginia, respectively.  But the great majority of the people identified in our study raised claims based on doctrine that had already been clearly established by the Supreme Court.  If the lower courts had applied Supreme Court caselaw correctly, these people would have gotten relief.  Yet the lower courts resisted the doctrine and for years the Supreme Court did nothing to correct them.  This resistance was particularly egregious in Texas and Florida.  In Texas, at least 108 people were executed after the Supreme Court had already established the relevant basis for relief, and in Florida, the total is at least 36. At least when it comes to the death penalty, the lower courts seem especially unwilling to follow Supreme Court doctrine that would save a person from execution.  The result is a system that routinely kills people even when they are right.

SCOTUS continues to show very little interest in very many criminal justice issues

It is surely a sign of my own self-involvement that I now consistently find myself, upon opening a new Supreme Court order list, grousing about the fact that the Justices continue to show very little interest in addressing a wide array of important criminal justice issues (and especially sentencing issues) that have percolated for a long time in lower courts and could benefit from SCOTUS input.  Of course, this Term and other recent ones still have had a handful of notable criminal cases, though mostly about interpretation of the Armed Career Criminal Act or high-profile (and likely low-impact) death penalty administration matters.  But this latest new 29-page SCOTUS order list, which is like so many others recent ones with a long list of cert denials in criminal cases and a few certain grants on civil cases, prompts for me another round of grousing.

Of course, Justice Sotomayor remains the Justice seemingly most eager to ensure that lots of criminal justice issues do not get entirely forgotten even as cert repeatedly gets denied, and today's order list includes a seven-page statement from her in a case from New York that starts and end this way:

In New York, criminal defendants who earn sufficient good time credits before the end of their prison sentences are entitled to conditional release.  Defendants classified by the State as “level three sex offenders,” however, must first assure the State that they will not reside within 1,000 feet of any school.  In New York City, this is no easy task, and the difficulties of finding a compliant residence can result in defendants serving additional time in prison past the expiration of their sentences.  Because petitioner Angel Ortiz was unable to identify any release address that satisfied the State’s requirement, he spent over two additional years incarcerated when he should have been at liberty.  Although Ortiz’s petition does not satisfy this Court’s criteria for granting certiorari, I write to emphasize that New York’s residential prohibition, as applied to New York City, raises serious constitutional concerns....

New York should not wait for this Court to resolve the question whether a State can jail someone beyond their parole eligibility date, or even beyond their mandatory release date, solely because they cannot comply with a restrictive residency requirement. I hope that New York will choose to reevaluate its policy in a manner that gives due regard to the constitutional liberty interests of people like Ortiz.

As always, I remain ever grateful that Justice Sotomayor remains ever committed to shining a SCOTUS light on some of the darkest parts of our criminal justice systems.  As always, I will keep hoping more Justices will show interest in many other long-concerning aspects of our CJ systems.  And in a coming post, I may do some more "formal speculating" about why the SCOTUS criminal docket has seemed especially fallow in the last few Terms and whether a coming change in SCOTUS personnel might shake matters up in coming Terms.

But maybe I am wrong to sense that the criminal side of the SCOTUS docket is wasting away in recent years.  I welcome comments about SCOTUS work in this respect from all quarters.

Taking time to celebrate the clemency power on Presidents' Day

I suppose on a President's Day we ought to celebrate all of Article II of Constitution, but regular readers will not be surprised by my eagerness to focus particularly on the last couple dozen words of Article II, Section 2, Clause 1: "The President ... shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."  Much could and should be said about clemency circa 2022, but I will be mostly content here to flag a few older pieces about the clemency work of Presidents George Washington and Abraham Lincoln:

From Fox News, "Presidents Day: Newly discovered Washington, Lincoln letters delve into pardon power, clemency"

From the Smithsonian Magazine, "The First Presidential Pardon Pitted Alexander Hamilton Against George Washington"

From Friends of the Lincoln Collection, "Lincoln’s Clemency: The Policy Limits"

Of course, there is a whole lot of great new academic writing about about clemency, largely because Prez Trump's controversial use of this king-like power generated a whole lot of commentary about what he actually did and what he might do.  For those taking stock, Prez Trump granted executive clemency to 237 individuals though his full term.  As is the unfortunate modern tendency, his clemencies were bunched mostly at the end of his term: he had granted just two clemencies (one pardon, one commutation) by the time of his second Presidents' Day in office, and he had granted only about a dozen more by the end of his second year in office. 

Prez Biden, though pledging as a candidate to "broadly use his clemency power for certain non-violent and drug crimes," has yet to grant a single clemency.  But, because there has been some buzz about possible clemencies, I am hopeful Prez Biden will soon live up to his campaign promise and improve on Prez Trump's record here.  But, even if Prez Biden gets his clemency pen out soon, I strongly believe the clemency process needs to be vastly improved and I hope that the FIX Clemency Act introduced in US House late last year might start getting some attention.

And though there is much more worth saying on this front, I will close will a final bit of academic celebration through a link to a great article by Professor Mark Osler that, at least for me, can capture the spirit of the day simply through its title: "Clemency As The Soul Of The Constitution."

Deepening circuit split, First Circuit embraces broad view of sentence reduction authority under 3582(c)(1)(A)

I have not consistently blogged about every circuit ruling concerning the nature and scope of authority that district judges now have to reduced sentences under 18 U.S.C. § 3582(c)(1)(A) after the FIRST STEP Act.  Suffice it to say that these issues are so contested that they have created an intra-circuit splits in the Sixth Circuit as well as broader divisions across multiple circuits.  But I was moved to blog on this topic again because the First Circuit weighed in earlier this week in US v. Ruvalcaba, NO. 21-1064 (1st Cir. Feb. 15, 2022) (available here) through an opinion that effective reviews the legal landscape on its way to reaching this basic holding: 

After careful consideration, we hold that a district court — when adjudicating a prisoner-initiated motion for compassionate release — is not bound by the Sentencing Commission's current policy statement. We further hold that such a court may consider the FSA's non-retroactive changes in sentencing law on an individualized basis, grounded in a defendant's particular circumstances, to determine whether an extraordinary and compelling reason exists for compassionate release.

The second part of this holding is one that has particularly divided circuit courts, and I was pleased to see this textualist analysis from the majority opinion in support of its conclusion:

Nowhere has Congress expressly prohibited district courts from considering non-retroactive changes in sentencing law like those in section 401 of the FSA. Such a prohibition cannot be deduced from section 3582(c)(1)(A)'s requirement that a court consider the section 3553(a) factors when granting a sentence reduction. No part of this requirement suggests that a district court is precluded from considering issues relevant to those sentencing factors at the separate step of determining whether an extraordinary and compelling reason exists. Were this the case, there would have been no reason for Congress to caution that rehabilitation — a relevant consideration in the section 3553(a) inquiry — could not constitute an extraordinary and compelling reason....

On the whole, given the language that Congress deliberately chose to employ, we see no textual support for concluding that such changes in the law may never constitute part of a basis for an extraordinary and compelling reason. We are, moreover, reluctant to infer that Congress intended such a categorical and unwritten exclusion in light of its specific statutory exclusion regarding rehabilitation.

In addition to the effective majority opinion, Ruvalcaba also has a notable extended dissent by Judge Barron in which he highlights another older extreme sentencing cases from the First Circuit — an remarkable case in which, as noted here, the entire First Circuit issued a remarkable opinion urging Supreme Court review while denying en banc review — which would seem to now have another chance to be addressed via 18 U.S.C. § 3582(c)(1)(A) thanks to Ruvalcaba. 

Might a challenge to extreme solitary confinement for over a quarter century reveal if any current Justices are truly textualists and originalists?

The question in the title of this post is prompted by this New York Times article discussing this notable recent Supreme Court petition raising an Eighth Amendment challenge to extreme solitary confinement.  The headline of the NYTimes piece sets the table: "27 Years in Solitary Confinement, Then Another Plea for Help in Texas: Dennis Hope, who has been held in solitary confinement in a Texas prison for more than half his life, asked the Supreme Court to set limits on prolonged isolation."  I recommend the full NY Times piece, and here are excerpts (with links from the original):

Dennis Hope has spent 27 years in solitary confinement in a Texas prison, in a cell that is 9 feet long and 6 feet wide — smaller than a compact parking space.  “It’s three steps to the door and then turn around and three steps back,” Mr. Hope, 53, wrote in a recent letter to his lawyers.

His only human contact is with the guards who strip-search and handcuff him before taking him to another enclosure to exercise, alone.  He has had one personal phone call since 1994, when his mother died in 2013.  He suffers from depression and paranoia and fears he is going insane.

Last month, Mr. Hope asked the Supreme Court to consider whether such prolonged isolation can violate the Eighth Amendment, which bars cruel and unusual punishments.

Prison officials in Texas do not seem concerned about Mr. Hope’s lawsuit. Last week, they told the Supreme Court that they waived their right to respond to his petition seeking review in his case, Hope v. Harris, No. 21-1065.  In their appeals court brief, the officials wrote that “Hope has no plausible Eighth Amendment claim.”...

[I]t is quite rare for prisoners to spend decades in isolation.  “We’ve only identified 12 prisoners outside of Texas who have spent more than 20 years in solitary confinement and who aren’t on death row,” said Easha Anand, one of the lawyers from the Roderick & Solange MacArthur Justice Center representing Mr. Hope.  She acknowledged, however, that complete data are hard to come by.

Mr. Hope was sentenced to 80 years in 1990 for a series of armed robberies and landed in solitary after he escaped from prison in 1994.  He eluded capture for about two months, during which he stole a car at knife point from an 83-year-old man and robbed four grocery stores.  In 2005, after 11 years in solitary confinement, a committee of prison security personnel concluded that Mr. Hope was no longer an “escape risk,” according to court papers.  But prison authorities have kept him isolated....

As the court has grown more conservative, the arguments against prolonged solitary confinement have shifted. Mr. Hope’s lawyers at the MacArthur Justice Center told the justices in his petition seeking review that the practice was inconsistent with the original understanding of the Eighth Amendment.

Solitary confinement was, they wrote, “unheard-of at the founding, attempted and quickly aborted in the following centuries, and resurrected only with Mr. Hope’s generation of prisoners.”  The petition drew on the work of John F. Stinneford, a law professor at the University of Florida whose work on the original meaning of the Eighth Amendment has been cited with approval by the court’s conservative majority in cases on methods of execution.

As a matter of text, I have quite a hard time coming up with a better set of adjectives than "cruel and unusual" to describe the decision of Texas prison officials to keep Mr. Hope punished with solitary confinement for nearly two decades after concluding he was no longer an escape risk.  So, though I might be just a simple-minded textualist, I would think most true textualists would see real strength in the argument that Texas is violating Mr. Hope's Eighth Amendment right to not have "cruel and unusual punishments inflicted."  Notably, the text of the Eighth Amendment speaks to punishments "inflicted" and not just those "imposed" (which is the term used for the prohibition of excessive fines).  This precise text of the Eighth Amendment has always led me to see all of actual punishment administration, and not just formal punishment imposition, to be of constitutional concern and part of what is constitutionally limited by the  text of the Eighth Amendment.

As a matter of original meaning, I have long been a fan of Prof Stinneford's effort to unpack and understand what an originalist approach to the Eighth Amendment might mean for modern constitutional law and limits on the infliction of modern punishment.  Critically, though, whether one fully embraces or questions Prof. Stinneford's Eighth Amendment analysis, I am not aware of any originalist arguments that the Eighth Amendment does not place some judicially cognizable limits on way defendants get punished.  Justice Scalia, in his 1991 originalist opinion assailing Eighth Amendment proportionality review in Harmelin v. Michigan, repeatedly noted that "the cruel and unusual punishments clause was directed at prohibiting certain methods of punishment" and that "the Clause disables the Legislature from authorizing particular forms or 'modes' of punishment — specifically, cruel methods of punishment that are not regularly or customarily employed" and that it "was designed to outlaw particular modes of punishment."  In other words, the O.G. originalist on the Supreme Court was quite clear that the kind of extreme punishment administration Eighth Amendment claim raised by Mr. Hope is exactly the type of constitutional claim that the Framers wrote the Eighth Amendment to be cognizable by courts.

I suspect there could and likely will be some advocates for extreme solitary confinement who develop textualist and originalist arguments to defend how Texas has been punishing Mr. Hope.  But, I still think any true textualists and/or any true originalists would still be quite inclined to grant certiorari on this significant claim so that the textualist and originalist arguments on these important matters could be developed through full briefing and thoughtful reflection.  But if these strong claims are just rejected entirely and summarily at the cert stage, I will be incline to think "fair-weather" textualism and originalism defines the work of many justices.  I want to believe strict fidelity to the text of the Constitution means more than reaching policy conclusions that a judge finds appealing, and maybe this case will restore my faith that some of the talk of textualism and originalism is not just about getting to certain results in certain cases.

Sentencing court's "abandonment of impartiality and unwillingness to follow the law" prompts reversal and rebuke

As noted in this Newsweek piece, headlined "Court Says Judge Overstepped with Ruling, May Be In 'Wrong Line of Work'," a sentencing reversal in Michigan last week is making national headlines because of some of the strong words in the ruling of a unanimous court of appeals.  Here are some highlights from the press report:

A Michigan judge known for giving criminals higher sentences than what guidelines recommend and making controversial comments from the bench was told by a higher court Tuesday that remaining a judge may not be the job for him.

Jackson County Judge John McBain was reprimanded by the Michigan Court of Appeals' ruling on the case of Dawn Marie Dixon-Bey, a 49-year-old woman convicted of fatally stabbing her boyfriend on Valentine's Day in 2015. Dixon-Bey said she acted in self-defense.

"If a trial judge is unable to follow the law as determined by a higher appellate court, the trial judge is in the wrong line of work," the appeals court said in its opinion, which followed a previous reprimand for how McBain handled the case....

The case began in 2017 when McBain sentenced Dixon-Bey to serve a minimum of 35 years in prison, 15 years over the recommended guidelines, for the second-degree murder of her boyfriend Greg Stack. During the sentencing hearing, McBain made comments to Dixon-Bey such as "I hope you are haunted by the vision of you stabbing him. After this day, you don't exist," and that the one major flaw Stack had was "that he stayed in a relationship with you," Michigan Live reported.

In 2020, the appeals court derided McBain for the sentence he gave Dixon-Bey and said he treated the defendant as if she was convicted of premeditated murder and "grilled her" in court. At the time, the judges' panel overturned the initial ruling, but McBain ignored it and gave Dixon-Bey a 30-year sentence.

McBain argued at the hearing Dixon-Bey had planned the killing saying "she stabbed the victim in the heart not once, but twice, and murdered him in cold blood," according to Associated Press. He also said he could consider the evidence presented in the case as premeditation, despite the defendant not being convicted of that crime.

With the second sentencing sent back to the Court of Appeals, the panel unanimously overturned McBain's ruling and ordered he be removed from any future hearings related to the case. The judges said McBain's decision to hand out a high sentence based on finding Dixon-Bey's crime as premeditated and deliberated, contrary to the jury's verdict, "was an abuse of discretion and a willful violation of controlling precedent from our Supreme Court," their opinion said.

A helpful reader provided me with copy of the full ruling in Michigan v. Dixon-Bey, No. 354866 (Mich. Ct. App. Feb. 1, 2022) (available for download below). Sentencing fans should take the time to read the entire opinion, which addresses sentencing topics ranging from the consideration of acquitted conduct to the right of allocution. And, among other notable statements, the opinion concludes with the appeals court stating that the "trial court’s conduct and statements may warrant investigation by the Judicial Tenure Commission."

Download Dawn Marie Dixon-Bey Michigan Court of Appeals

Intriguing squabble in Idaho over capital commutation authority

This AP article, headlined "Judge says Idaho governor can’t veto clemency for condemned man," reports on a new state ruling concerning who has capital commutation authority in the Gem State.  Here are some of the details:

A judge says Idaho’s governor doesn’t have the power to veto a clemency recommendation by the state’s parole board for a terminally ill man who was expected to be executed this year. The ruling from 2nd District Judge Jay Gaskill on Friday says putting Gerald Pizzuto Jr. to death would be illegal and so the court won’t issue a death warrant — a required document before an execution can occur. Gov. Brad Little’s office vowed to appeal.

Pizzuto, 66, has been on death row for more than three decades after being convicted for the July 1985 slayings of two gold prospectors at a cabin north of McCall. He was scheduled to be executed by lethal injection last year, but after a clemency hearing the Idaho Commission of Pardons and Parole voted 4-3 to recommended that Pizzuto’s sentence be changed to life in prison. The board cited Pizzuto’s poor health — he has terminal bladder cancer, heart disease and diabetes as well as decreased intellectual function — and said commutation would be an act of mercy.

Little, however, rejected the recommendation and said he wouldn’t commute Pizzuto’s sentence. Little noted the man committed the Idaho slayings shortly after being released from prison in Michigan, where he had been convicted of rape.

Pizzuto’s attorneys with the Federal Defender Services of Idaho went to court, with attorney Jonah Horwitz arguing last month that while Idaho’s Constitution gives the governor the power to grant temporary reprieves from execution, it stops far short of allowing the governor to override the parole board’s commutation recommendation.

Attorneys for the state had argued a phrase added by amendment in 1986 to the relevant section of the constitution, “only as provided by statute,” meant that the Legislature could modify the way commutation and parole powers are carried out. Deputy Attorney General LaMont Anderson told Gaskill during oral arguments that the Legislature had done exactly that in a state law that said the parole board could recommend commutation, but the governor must approve.

In Friday’s ruling, Gaskill said the final decision on commuting a sentence rests with the parole board and not the governor. “If the drafters intended to allow the governor to have the power of commutation, which is greater than the power to grant respites and reprieves, the drafters could have specifically stated this,” Gaskill said, pointing out that the constitutions of several other states including Texas, Oklahoma, Arizona and Pennsylvania do explicitly give commutation power to the governor.

The judge also noted that the section of Idaho’s Constitution detailing the parole and commutation powers had been amended a few times throughout the state’s history — most recently in 1986 — but none of the amendments gave full commutation authority to the governor....

In an emailed statement, the governor’s office said the decision was the ruling of “one judge,” and said Little had followed the constitution and state law as written. “Governor Little will challenge this ruling because the state must have the ability to carry out the death penalty as ordered by the court in this case,” the office said. “Pizzuto was convicted of rape, robbery and four brutally gruesome murders. This matter is now left for a higher court to ultimately decide.”

Notably, as detailed at this DPIC page, Idaho has only carried out only three executions over the last 50 years and none in nearly a decade. But, in the modern US experience with capital punishment, there always seems to be a whole lot of litigation even if when there are not that many executions.

Federal judge rejects binding sentencing federal plea deal for men who killed Ahmaud Arbery

As reported in this new AP piece, a "federal judge rejected a plea agreement Monday that would have averted a hate crimes trial for the man convicted of murdering Ahmaud Arbery." Here are the sentencing details that apparently drove the decision:

A federal judge rejected a plea agreement Monday that would have averted a hate crimes trial for the man convicted of murdering Ahmaud Arbery.

Arbery’s parents denounced the proposed deal for Travis McMichael, with mother Wanda Cooper-Jones and father Marcus Arbery emotionally asking the judge to reject agreements filed for McMichael and his father, Greg McMichael.

In rejecting the deal, U.S. District Judge Lisa Godbey Wood said it would have locked her into specific terms — including 30 years in federal prison — at sentencing. Wood said that in this case it would only be appropriate to consider the family’s wishes at sentencing, which the proposed deal wouldn’t allow. The judge gave the McMichaels until Friday to decide whether they move ahead with pleading guilty.

Marcus Arbery told reporters outside the federal courthouse in Brunswick that he was “mad as hell” over the proposal, which lawyer Lee Merritt said could enable Travis and Greg McMichael to spend the first 30 years of their life sentences in federal prison, rather than state prison where conditions are tougher. “Ahmaud is a kid you cannot replace,” Arbery said. “He was killed racially and we want 100% justice, not no half justice.”

Cooper-Jones described the U.S. Justice Department’s decision to propose the plea deal despite her objections as “disrespectful.” “I fought so hard to get these guys in the state prison,” she said. “I told them very, very adamantly that I wanted them to go to state prison and do their time. ... Then I got up this morning and found out they had accepted this ridiculous plea.”...

The proposed plea agreements for the McMichaels were filed with the court late Sunday. There was no mention of a deal with their co-defendant, William “Roddie” Bryan. All three men were sentenced to life in prison on Jan. 7 after a trial last fall.

The hate crime charges accuse McMichaels and Bryan of violating the 25-year-old Black man’s civil rights by chasing him through their neighborhood in coastal Georgia on Feb. 23, 2020. The McMichaels armed themselves and pursued Arbery in one pickup truck while Bryan joined the chase in another and recorded video of Travis McMichael blasting Arbery with a shotgun.

"Life 'Or' Death"

The title of this post is the title of this new article authored by Marlee Russell now available on SSRN. Though focused on Mississippi law, the issue of "or" in state constitutions is one that arises in a number of other states. Here is this article's abstract:

This Article argues that the death penalty violates the Mississippi State Constitution because of the state’s prohibition of cruel “or” unusual punishments. By using the word “or” instead of “and,” Mississippi guarantees its citizens with a broader protection than the Eighth Amendment guarantees.  The different language should cause punishments, specifically the death penalty, to be evaluated under a separate standard for each prong of this protection.

Part I of this paper will argue that lethal injection is torture, explaining the methods, procedures, and associated risks during administration of the drugs.  Part II will show how lethal injection violates the Mississippi State Constitution due to the differences between conjunctive and disjunctive interpretations of the constitutional language.  Part III will prove that the remaining methods of execution in Mississippi violate the constitution because of their rare and unusual use in the state.  Part IV will suggest a new standard for evaluating if a punishment is cruel or unusual in Mississippi based on this language.

Joe Exotic gets 21 years (only a year off prior sentence) at resentencing

It feel like it has been a very long time since everyone was talking about Joe Exotic and Carole Baskin, even though NetFlix released "Tiger King 2" only a few months ago.  And, as this new AP article details, there was something of a "Tiger King 2" in federal court this past week as Joe Exotic (aka Joseph Maldonado-Passage) was resentenced for trying to put an end to Baskin.  Here are some of the details:

A federal judge resentenced “Tiger King” Joe Exotic to 21 years in prison on Friday, reducing his punishment by just a year despite pleas from the former zookeeper for leniency as he begins treatment for early-stage cancer. “Please don’t make me die in prison waiting for a chance to be free,” he tearfully told a federal judge who resentenced him on a murder-for-hire charge.

Joe Exotic — whose real name is Joseph Maldonado-Passage — was convicted in a case involving animal welfare activist Carole Baskin.  Both were featured in Netflix’s “Tiger King: Murder, Mayhem and Madness.”

Wearing an orange prison jumpsuit, Maldonado-Passage, 58, still had his trademark mullet hairstyle, but the bleach-blonde had faded to brown and gray.  Baskin and her husband, Howard Baskin, also attended the proceedings, and she said she was fearful that Maldonado-Passage could threaten her. “He continues to harbor intense feelings of ill will toward me,” she told the judge.

Baskin said even with Maldonado-Passage in prison, she has continued to receive “vile, abusive and threatening communications” over the last two years. She told the judge she believes Maldonado-Passage poses an even more serious threat to her now that he has a larger group of supporters because of the popularity of the Netflix series.

Maldonado-Passage’s attorneys told the judge their client is suffering from stage-one prostate cancer, along with a disease that compromises his immune system, making him particularly vulnerable to COVID-19. Stage-one prostate cancer means it has been detected early and hasn’t spread.  Maldonado-Passage previously said that he planned to delay treatment until after his resentencing.  Federal officials have said Maldonado-Passage will need up to eight weeks of radiation treatments and would be unable to travel during the treatments.  His attorney Amy Hanna told the judge he’s not receiving the proper medical care inside the federal prison system and that a lengthy prison sentence is a “death sentence for Joe that he doesn’t deserve.”

Prosecutors also told the judge Friday that Maldonado-Passage received a disciplinary write-up in September for being possession of a contraband cellphone and unauthorized headphones that was not included in his pre-sentencing report. Palk added that Maldonado-Passage had four previous disciplinary write-ups, although he described those as “relatively minor and not violent.”

Friday’s court proceedings came about after a federal appeals court ruled last year that the prison term he’s serving on a murder-for-hire conviction should be shortened.

Supporters packed the courtroom, some wearing animal-print masks and shirts that read “Free Joe Exotic.” His attorneys said they would appeal the resentencing and petition for a new trial. “The defense submitted a series of attachments that showed excessive government involvement in the creation of the offense for which he’s been convicted,” attorney Molly Parmer told reporters after the hearing. “We are going to continue our post-conviction litigation, but we did preview for the court the evidence we have through our post-conviction investigation.”

The former zookeeper was sentenced in January 2020 to 22 years in prison after he was convicted of trying to hire two different men to kill Baskin.  A three-judge panel of the 10th U.S. Circuit Court of Appeals agreed with Maldonado-Passage that the court should have treated them as one conviction at sentencing because they both involved the same goal of killing Baskin, who runs a rescue sanctuary for big cats in Florida and had criticized Maldonado-Passage’s treatment of animals....

Maldonado-Passage, who maintains his innocence, also was convicted of killing five tigers, selling tiger cubs and falsifying wildlife records.

Prior related post:

• Joe Exotic (of "Tiger King" fame) prevails on technical guideline issue to secure resentencing on Tenth Circuit appeal 

By 5-4 vote, Supreme Court enables Alabama to move forward with execution

As reported in this AP piece, the Supreme Court "cleared the way Thursday night for the state of Alabama to execute an inmate who contended that an intellectual disability combined with the state’s inattention cost him a chance to avoid lethal injection and choose a new method."  Here is more:

Reeves was convicted of killing a driver who gave him a ride in 1996. Reeves claimed the state failed to help him understand a form that would have let him choose a new execution method involving nitrogen, but the state argued he wasn’t so disabled that he couldn’t understand the choice.

A divided court agreed with the state’s bid to let the execution to proceed.  Justice Amy Coney Barrett said she would deny the state’s request, while Justice Stephen Breyer, who just announced his retirement, and Justice Sonia Sotomayor joined with Justice Elena Kagan in a dissent that said the execution shouldn’t occur.

The dissenting opinion of Justice Kagan, which runs three pages and is available here, starts this way (with cites removed):

Four judges on two courts have decided — after extensive record development, briefing, and argument — that Matthew Reeves’s execution should not proceed as scheduled tonight.  The law demands that we give their conclusions deference. But the Court today disregards the well-supported findings made below, consigning Reeves to a method of execution he would not have chosen if properly informed of the alternatives. I respectfully dissent.

I believe this is the first time Justice Barrett has voted in favor of a capital defendant is one of these cases, though she did not explain just why.

UPDATE:  The AP article linked above now reports that the execution has been completed:

Alabama executed an inmate by lethal injection for a 1996 murder on Thursday after a divided U.S. Supreme Court sided with the state and rejected defense claims the man had an intellectual disability that cost him a chance to choose a less “torturous,” yet untried, execution method.

Matthew Reeves, 43, was put to death at Holman Prison after the court lifted a lower court order that had prevented corrections workers from executing the prisoner. He was pronounced dead at 9:24 p.m. CST, state Attorney General Steve Marshall said in a statement.

Notable new report on juve LWOP reviews "Montgomery v. Louisiana Six Years Later: Progress and Outliers"

This morning I received this email from the folks at the Campaign for the Fair Sentencing of Youth that highlighting this new report "Montgomery v. Louisiana Six Years Later: Progress and Outliers." The full short report is worth a full read, and the emails provides this brief accounting of the report's coverage:

Six years ago today, the U.S. Supreme Court issued its decision in Montgomery v. Louisiana, making Miller v. Alabama’s requirement that judges consider the mitigating attributes of youth retroactive and offering new hope to thousands of people who had been sentenced to life without parole as children.  For many, that hope has led to shorter prison sentences, and for hundreds of others, it’s meant freedom.  At the time of the decision, 2,800 individuals in the U.S. were serving life without parole for crimes committed as children.  In the six years since, 835 individuals formerly serving this sentence have been released from prison. 

Today, 25 states and the District of Columbia ban life-without-parole sentences for children, and in six additional states, no one is serving life without parole for a crime committed as a child.  While we celebrate this inspiring progress, we recognize that far too many others have not yet received the relief they rightfully deserve.  Thus, we are pressing forward in the fight for these individuals across all areas of our work, with a particular focus on state legislatures and advocacy in outlier states. You can read more about how far we have come and the challenges we still face in this report authored by Rebecca Turner, the CFSY’s Senior Litigation Counsel.  

The full report gives particular attention to developments in Pennsylvania, Michigan, and Louisiana, which "each had more children sentenced to life without parole than any other state in the country" when Montgomery was handed down.  Here is how the report describes subsequent developments in those states and nationwide:

A majority of the 2,800 individuals serving juvenile life without parole (JLWOP) following Miller have been resentenced in court or had their sentences amended via legislation, depending on the jurisdiction in which they were convicted.

Yet despite the 80% reduction in people serving JLWOP, jurisdictions have varied significantly in their implementation of Miller. As a result, relief afforded to individuals serving JLWOP is based more on jurisdiction than on whether the individual has demonstrated positive growth and maturation.

The uneven implementation of Miller disproportionately impacts Black individuals, who represent 61% of the total JLWOP population....

Within that population [serving JLWOP when Montgomery was decided], 29% have been released, over 50% have had their sentences reduced from JLWOP, about 17% have not yet been afforded relief, and approximately 3% have been resentenced to JLWOP.

Connecticut Supreme Court reverses sentence based "materially false information" that defendant was in "mythical group of teenage 'superpredators'"

A few helpful folks made sure I did not miss the notable ruling by the Connecticut Supreme Court this past Friday in State v. Belcher, No. SC 20531 (Conn. Jan 21, 2022) (available here). The start of the unanimous opinion sets out the basics:

The defendant, Keith Belcher, a juvenile offender, appeals from the trial court’s denial of his motion to correct an illegal sentence. After his conviction, the defendant received a total effective sentence of sixty years of incarceration.  He claims, inter alia, that the trial court improperly denied his motion to correct on the basis of the court’s conclusion that the sentencing court did not impose the sentence in an illegal manner by relying on materially false information.

Our review of the record reveals that the defendant established that the sentencing court substantially relied on materially false information in imposing his sentence, specifically, on the court’s view that the defendant was a ‘‘charter member’’ of a mythical group of teenage ‘‘superpredators.’’  Therefore, we conclude that the trial court abused its discretion in denying the defendant’s motion to correct.  Accordingly, we reverse the judgment of the trial court, and the case is remanded with direction to grant the defendant’s motion and for resentencing.

The full opinion merits a full read for many reasons.  Therein, one learns that the defendant here was only 14 when committing his crimes way back in 1993 (meaning he has now already served nearly three decades).  Also of note, the court avoids resolution of constitutional claims by deciding he gets resentencing based on the illegal manner of the original sentence's imposition. Here are a few highlights from the interesting opinion:

We conclude that the superpredator theory was baseless when it originally was espoused and has since been thoroughly debunked and universally rejected as a myth, and it therefore constituted false and unreliable information that a sentencing court ought not consider in crafting a sentence for a juvenile offender....

In the context of the sentencing of the defendant, a Black teenager, the court’s reliance on the materially false superpredator myth is especially detrimental to the integrity of the sentencing procedure for two reasons.  First, reliance on that myth invoked racial stereotypes, thus calling into question whether the defendant would have received as lengthy a sentence were he not Black.  Second, the use of the superpredator myth supported treating the characteristics of youth as an aggravating, rather than a mitigating, factor....

In summary, by invoking the superpredator theory to sentence the young, Black male defendant in the present case, the sentencing court, perhaps even without realizing it, relied on materially false, racial stereotypes that perpetuate systemic inequities — demanding harsher sentences — that date back to the founding of our nation.  In addition, contrary to Roper and its progeny, in relying on the superpredator myth, the sentencing court counted the characteristics of youth as an aggravating factor against the defendant.  Although we do not mean to suggest that the sentencing judge intended to perpetuate a race based stereotype, we cannot overlook the fact that the superpredator myth is precisely the type of materially false information that courts should not rely on in making sentencing decisions.  Whether used wittingly or unwittingly, reliance on such a baseless, illegitimate theory calls into question the legitimacy of the sentencing procedure and the sentence.

"The First Step Act, The Pandemic, and Compassionate Release: What Are the Next Steps for the Federal Bureau of Prisons?"

The title of this post is the title of this congressional hearing taking place this morning conducted by the Subcommittee on Crime, Terrorism, and Homeland Security of the US House Judiciary Committee.  I cannot yet find links to any written testimony, but here are the scheduled witnesses from this Witness List:

Homer Venters, Adjunct Clinical Associate Professor, NYU School of Global Public Health

Alison Guernsey, Clinical Associate Professor of Law, University of Iowa College of Law

Gwen Levi, Baltimore, MD

Melissa Hamilton, Professor of Law and Criminal Justice, University of Surrey, School of Law

Gretta L. Goodwin, Director, Homeland Security and Justice, U.S. Government Accountability Office

Julie Kelly, Senior Contributor, American Greatness

Frustrating (but still fascinating) SCOTUS argument on crack offense resentencing under FIRST STEP Act

The Supreme Court heard oral argument today in Concepcion v. US, No. 20-1650, to address this technical question as presented by the Petitioners: "Whether, when deciding if it should 'impose a reduced sentence' on an individual under section 404(b) of the First Step Act of 2018, 21 U.S.C. § 841 note, a district court must or may consider intervening legal and factual developments."  Perhaps in part because the federal government agrees that a district court "may" consider new facts at crack offense resentencing, it seems likely that the defendant here will secure some form of relief.  But, perhaps in part because of the federal government's position, a number of Justices seemed quite eager to talk up the virtues of limiting the scope of a crack offense resentencing.  And because everyone talked at great length about sentencing laws and practices — save Justices Barrett and Thomas, who were mostly quiet — all federal sentencing fans will want to make time to listen to (or read) the oral argument available here.

Many aspects of the argument were fascinating, included Justice Breyer's persistent eagerness to talk up the US Sentencing Commission and even USSC staff documents.  But I found the tenor and tone of the entire argument to be somewhat frustrating given the historical context of unjust crack sentencing.  The advocates and the Justices often suggested it was exceptional that Congress provided for crack resentencings, and the Assistant SG repeatedly spoke of the defendant's original "lawful sentence."  Nobody really mentioned at all the exceptionally unjust and unfair original 100-1 crack sentencing ratio and how that injustice was overwhelmingly acknowledged by Congress through the Fair Sentencing Act of 2010 and finally fixed retroactively  though the FIRST STEP Act of 2018.  Put more directly, Congress has twice made quite clear that it believes that crack defendants sentenced before 2010 received unjust and wrong sentences, even if those sentences may have been technically "lawful."  

In other words, what is fundamentally at issue in Concepcion is whether a group of defendants (almost all of whom are persons of color) who have been serving unjust and wrong federal sentences for more than a decade should be limited in how they can argue for now getting a more just and rightful sentence.  Most fundamentally, these crack defendants want to argue that they should also benefit at resentencing from other improvements in the guidelines apart from crack reforms.  But the Assistant AG expressed concern that allowing arguments for a more just and rightful sentence based on new guidelines could lead to an "unjustified windfall for a select subset of crack cocaine offenders."  But, as I see it, understanding how these defendants have been subject to unjust sentencing for many years, it is functionally impossible for them to really get any "windfall."  Indeed, allowing current new and improved law to inform a new and improved sentence for these crack defendants is the exact opposite of "unjustified windfall."  It is what all should recognize as justice, years late, but hopefully not short.

SCOTUS to hear argument over terms of crack offense resentencing under FIRST STEP Act

The Supreme Court will be hearing oral argument on Wednesday morning in Concepcion v. US, No. 20-1650, which presents the following sentencing issue as phrased by the petitioner in this brief:

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

The Government articulates the issues somewhat differently in its brief:

Whether a district court is required to consider all legal and factual developments occurring after an offender’s original sentencing — whether or not related to the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 — in connection with a motion for a reduced sentence under Section 404 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5222.

I was happy to be able to join this law professors' amicus brief which stresses the centrality of the 3553(a) factors at federal sentencing, which calls for analysis of all relevant considerations at initial sentencings and at any resentencings.

Supreme Court takes up procedural issues around challenging execution methods and habeas matters

Via this order list, the US Supreme Court this afternoon granted certiorari in five new cases, two of which involve criminal procedure.  This SCOTUSblog post reviews the high-profile religion case of the bunch and provides this very brief account of the two criminal matters:

• Nance v. Ward, involving the procedures by which an inmate must raise his challenge to the method by which the state intends to execute him.
• Shoop v. Twyford, involving (among other things) whether a court must determine whether evidence would help an inmate seeking a writ of habeas corpus and whether the court can consider that evidence before the court grants an order allowing the inmate to develop new evidence.

Though there were less than a dozen executions throughout the US last year, the Supreme Court now will decided three notable death penalty cases this Term on jury and penalty phase procedures (Tsarnaev), on how executions can be carried out when the condemned seeks a spiritual advisor (Ramirez) and now on how condemned can proceed with challenges to execution methods (Nance).  So while less than .001% of incarcerated persons face execution in recent years, about 5% of the Supreme Court's docket this year involved death penalty matters.