Thursday, December 03, 2020

Group of criminal justice leaders call for ending federal death penalty immediately

As detailed in this press release from Fair and Just Prosecution, " a bipartisan group of nearly 100 criminal justice leaders — including over 60 current elected prosecutors (District Attorneys, State Attorneys, Prosecuting Attorneys and Attorneys General), nine former U.S. Attorneys and 14 current and former Police Chiefs and Sheriffs — issued a joint statement calling for an immediate halt to federal executions and asking the President to commute the sentences of the five people now scheduled to be executed by the federal government over the next two months."  The full three-page joint statement and the list of signatories is available here, and the statement gets started this way: 

We are a group of nearly 100 current and former elected prosecutors, Attorneys General, and law enforcement leaders, and former United States Attorneys and Department of Justice officials writing in opposition to the application of the death penalty, and in support of clemency, for those individuals scheduled for federal execution in the coming months. Case after case has revealed that our nation’s long experiment with the death penalty has failed.  The process is broken, implicates systemic racism and constitutional concerns, and distinguishes our country from many other democratic nations in the world. If ever there were a time to revisit this practice, that time is now.

Many have tried for over forty years to make America’s death penalty system just.  Yet the reality is that our nation’s use of this sanction cannot be repaired, and it should be ended.  The death penalty raises serious concerns in tension with the constitutional ban against cruel and unusual punishment and the guarantees of due process and equal protection under the law.

It is unequally and arbitrarily applied, ineffective at improving public safety, and a waste of taxpayer resources; and its use presents the perilous risk of executing an innocent person.  We also now know that we have not executed the worst of the worst, but often instead put to death the unluckiest of the unlucky — the impoverished, the poorly represented, and the most broken.  Time and again, we have executed individuals with long histories of debilitating mental illness, childhoods marred by unspeakable physical and mental abuse, and intellectual disabilities that have prevented them from leading independent adult lives.  We have executed individuals with trial lawyers so derelict in their duties and obligations that they never bothered to uncover long histories of illness and trauma. We have also likely executed the innocent.

December 3, 2020 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

"Cruel & Unusual Non-Capital Punishments"

The title of this post is the title of this new article available via SSRN authored by William Berry.  Here is its abstract:

The Supreme Court has rendered the Eighth Amendment a dead letter with respect to non-capital, non-juvenile life-without-parole sentences.  Its cases have erected a gross disproportionality standard that seems insurmountable in most cases, even for draconian and excessive sentences.  State courts have adopted a similar approach in interpreting state constitutional Eighth Amendment analogues, often finding that they are no broader than the Court’s narrow interpretation of the Eighth Amendment, despite linguistic variations in many cases.

Nonetheless, in a handful of state cases, state courts have found that state punishments violate the Eighth Amendment or its state constitutional analogue.  This article examines those cases to identify what non-capital punishments have caused courts to limit state punishment practices even in the shadow of an overwhelming, albeit unfortunate, trend of according constitutional deference to state punishment practices.  In light of these decisions, this Article advances a series of possible arguments by which to attack state and federal punishment practices in an effort to create more exceptions to the draconian status quo constitutional rule.

In Part I, the Article begins by providing an overview of Eighth Amendment gross disproportionality doctrine and its use in state constitutional analogues to the Eighth Amendment.  Part II examines the handful of state court cases that have found punishments unconstitutionally disproportionate.  In Part III, the Article advances one set of arguments — both systemic and case-based — for use in attacking non-capital state punishments under state constitutions.  Part IV, the Article advances a second set of arguments — both systemic and case-based — for use in attacking non-capital state punishments under the Eighth Amendment.

December 3, 2020 in Examples of "over-punishment", Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, December 02, 2020

Ramos, Tasmanian tigers and Teague, oh my: SCOTUS debates retroactivity of jury unanimity rule in Edwards oral argument

Lions-and-tigers-and-bears-oh-my

The Supreme Court often seems to have a Wizard-of-Oz like quality, especially now that we are all behind a COVID curtain, and so I could not resist an Ozian title for this post noting today's interesting oral argument in Edwards v. Vannoy.   At issue in Edwards is whether the Court’s decision last Term in Ramos v. Louisiana, holding that the Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts, applies retroactively to cases that have already become final on direct review.  This Bloomberg Law account of the argument, headlined "Justices Divided on Making Jury Unanimity Decision Retroactive," provides a great summary, and here are excerpts:

Supreme Court justices were divided during oral argument over whether their decision barring nonunanimous jury convictions last term applies retroactively.

Questions on Wednesday from Justices Neil Gorsuch, Sonia Sotomayor, and Stephen Breyer suggested all three may favor retroactivity, but the defendant, Thedrick Edwards, could have trouble attracting two more justices to join them. 

Chief Justice John Roberts and Justice Elena Kagan, both of whom could hold crucial votes, asked tough questions of both sides....  It’s unclear how the newest justice, Amy Coney Barrett, will vote.  She replaced the late Justice Ruth Bader Ginsburg, who voted with the majority in last term’s Ramos v. Louisiana.

Justices Samuel Alito, Clarence Thomas, and Brett Kavanaugh are likely votes against retroactivity.  Kavanaugh voted with the majority in Ramos, but said in a concurrence that he didn’t think the decision should apply retroactively....

Edwards, a Black man, was convicted in 2007 of armed robbery, kidnapping, and rape by a nonunanimous Louisiana jury and sentenced to life in prison.  The lone Black juror voted to acquit on all counts.  The states most recently to allow split verdicts were Louisiana and Oregon, which were found to have enacted their systems for discriminatory purposes.  Nonetheless, those states, Puerto Rico — which also had them — and the Justice Department are pressing the high court to keep intact the nonunanimous convictions that have already been upheld.  That would bar relief for Edwards and potentially over a thousand people like him who want to take advantage of Ramos even though they already exhausted their initial round of appeals.... 

Bélanger downplayed the notion that a ruling for Edwards would overload the system with new trials.  Prompted by questioning from Breyer, he said “we’re really looking at our estimates of maybe two to three cases per prosecutor.” He said “the system is more than capable of accommodating this type of caseload.”  Louisiana Solicitor General Elizabeth Murrill deemed that assessment unrealistic.  “You can’t just hand out cases to anybody who happens to be an assistant district attorney,” she said.  “I mean, some of those people actually enforce laws in city court and — or do — you know, they collect money from — they do civil cases.”

One way for decisions to apply retroactively is if they reaffirmed an old rule.  Gorsuch, the author of Ramos, expressed support for that idea, while Kagan called it a “steep climb” at the argument.  Another way the court could view the Sixth Amendment unanimity right from Ramos is as a newly-recognized criminal procedure rule, which generally wouldn’t apply retroactively.  But under the court’s 1989 ruling in Teague v. Lane, it can if it’s a “watershed” right implicating fundamental fairness and accuracy.

Yet the court has never expressly identified such a watershed right — it has indicated the right to counsel that predated Teague could be one — leading Gorsuch to wonder if the watershed test is a “false promise.”  Alito said it reminds him “of something you see on some TV shows about the — the quest for an animal that was thought to have become extinct, like the Tasmanian tiger, which was thought to have died out in a zoo in 1936, but every once in a while, deep in the forests of Tasmania, somebody sees a footprint in the mud or a howl in the night or some fleeting thing running by, and they say, a-ha, there still is one that exists.”

Both Kagan and Barrett pressed lawyers about what exactly accuracy means in the Teague analysis.  “I’m having trouble understanding what we’re measuring,” Barrett said. “Are we trying to ask whether juries wrongfully convicted someone because the majority saw the case in the wrong way and the — and the one dissenter in the jury or the two dissenters in the jury were right?”...

[T]hough she dissented in Ramos, Kagan seemed to struggle with whether defendants should benefit from it retroactively.  “I mean, Ramos says that if you haven’t been convicted by a unanimous jury, you really haven’t been convicted at all,” she told assistant to the U.S. solicitor general Christopher Michel, who supported Louisiana’s Murrill at the argument. “And so how could it be that a rule like that does not have retroactive effect?” she asked....

The court could also avoid the retroactivity issue entirely.  Some justices — at least Thomas, Alito, and Kavanaugh — expressed during the argument that habeas corpus restrictions could bar Edwards from relitigating the issue at all.

December 2, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Fourth Circuit becomes the fourth circuit to embrace a robust view of sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act

I am very pleased to see today yet another important circuit rulings on the reach and application of the compassionate release provisions amended by the federal FIRST STEP Act.  As regular readers know, in lots of (pre-COVID) prior posts I made much of the provision of the FIRST STEP Act allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I have consider this provision a big deal because, if applied appropriately and robustly, it could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced. 

The Second Circuit back in September was the first circuit to rule in Zullo/Brooker, quite rightly in my view, that district courts have now broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" to justify a sentence reduction under 3582(c)(1)(A).  Then, on the same day last month, the Sixth Circuit in Jones and the Seventh Circuit in Gunn issued similar opinions recognizing that district court now have broad authority after the FIRST STEP Act to determine whether and when "extraordinary and compelling" reasons may justify a sentence reduction when an imprisoned person files a 3582(c)(1)(A) motion.  Now, today, the Fourth Circuit has become the fourth circuit to get into this act with a great panel opinion in US v. McCoy, No. 20-6821 (4th Cir. Dec. 2, 2020) (available here).  Here is how this opinion gets started:

The defendants in these consolidated appeals were convicted of robberies and accompanying firearms violations under 18 U.S.C. § 924(c). At the time, sentences under § 924(c) were “stacked,” which exposed the defendants to additional mandatory minimums and led to sentences ranging from 35 to 53 years of imprisonment. After the defendants’ convictions became final, Congress passed the First Step Act and ended sentence “stacking” under § 924(c). Today, the defendants’ sentences would be dramatically shorter – in most cases, by 30 years – than the ones they received.

At the same time it shortened sentences under § 924(c), the First Step Act significantly expanded access to compassionate release under 18 U.S.C. § 3582(c)(1)(A). Prior versions of § 3582(c)(1)(A), which empowers courts to reduce sentences for “extraordinary and compelling reasons,” had allowed review of sentences only at the request of the Bureau of Prisons (“BOP”). The First Step Act removed the BOP from that gatekeeping role, authorizing defendants themselves to file motions for sentence reductions.

Relying on both these First Step Act provisions, the defendants moved for reductions in their sentences under § 3582(c)(1)(A), resting their case for “extraordinary and compelling reasons” primarily on the length of their § 924(c) sentences and the disparity between their sentences and those that Congress deemed appropriate in the First Step Act. After considering each defendant’s individual circumstances – including their youth at the time of the offenses, their lack of significant prior criminal history, their exemplary behavior and rehabilitation in prison, and their already-substantial years of incarceration – the district courts granted the defendants’ motions and reduced their sentences to time served.

We now affirm the judgments of the district courts. As the government emphasizes on appeal, § 3582(c)(1)(A) prohibits sentence reductions that are not consistent with “applicable policy statements issued by the Sentencing Commission.” But contrary to the government’s argument, treating the defendants’ § 924(c) sentences as an “extraordinary and compelling” reason for release is not inconsistent with any “applicable policy statement” of the Sentencing Commission for the simple reason that the Commission has yet to issue a policy statement that applies to motions filed by defendants under the recently amended § 3582(c)(1)(A). Nor was it otherwise improper, we conclude, for the district courts to consider the First Step Act’s declaration of the appropriate level of punishment under § 924(c) in assessing the defendants’ cases, on an individualized basis, for compassionate release.

Like the other circuit opinions and many comparable district court opinions, this Fourth Circuit ruling is the real McCoy, and its closing paragraph provides a fitting summary of the sound work that district courts are doing in accord with the congressional guidance in the FIRST STEP Act:

We return to the Second Circuit’s description of the First Step Act and its amendment of § 3582(c)(1)(A): an “incremental” change that does not mandate more lenient sentences across the board but instead gives new discretion to the courts to consider leniency.  Zullo, 976 F.3d at 230.  The district courts in these cases appropriately exercised the discretion conferred by Congress and cabined by the statutory requirements of § 3582(c)(1)(A).  We see no error in their reliance on the length of the defendants’ sentences, and the dramatic degree to which they exceed what Congress now deems appropriate, in finding “extraordinary and compelling reasons” for potential sentence reductions. The courts took seriously the requirement that they conduct individualized inquiries, basing relief not only on the First Step Act’s change to sentencing law under § 924(c) but also on such factors as the defendants’ relative youth at the time of their offenses, their post-sentencing conduct and rehabilitation, and the very substantial terms of imprisonment they already served.  Those individualized determinations were neither inconsistent with any “applicable” Sentencing Commission guidance nor tantamount to wholesale retroactive application of the First Step Act’s amendments to § 924(c).

A few of many, many prior related posts:

December 2, 2020 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Lots of (surprising and unsurprising) clemency chatter ... and great advocacy for clemency change

The lame-duck end of a presidential (or gubernatorial) term is often a time for lots of discussion of clemency possibilities.  And who follows this space surely sensibly expected that the Term of Prez Trump would wind down with plenty of clemency chatter.  But, as detailed via these recent headlines and links, the array of stories afoot are remarkable:

From Business Insider, "Joe Exotic's lawyer thinks he's 'very, very close' to getting a presidential pardon from Trump"

From the New York Times, "Trump Has Discussed With Advisers Pardons for His 3 Eldest Children and Giuliani"

From NPR, "Justice Department Investigating Possible Bribery-For-Pardon Scheme"

Though I might have "hot takes" about the latest clemency news, the recent piece most worth considering in this space comes from Emily Galvin-Almanza via The Appeal under the headline "Biden Must Fix The Broken Executive Clemency Process.  This Is Who He Should Select To Lead That Effort."  Here are excerpts:

[W]e must work at all levels to transform our criminal legal system.  But we can’t neglect powerful, fast tools like clemency.  We shouldn’t box clemency away as merely some form of mercy, when in fact it is something much more akin to a high-speed mechanism for undoing the worst impacts of bad, outdated policy and enforcement choices.  And yet, we have done exactly that: As [Rachel] Barkow has pointed out, we’ve taken this powerful tool and abandoned it in a dusty closet somewhere in the basement of the Department of Justice.  That’s where a brave new Administration must begin....

As you might expect, this choking process has left clemency in a state of crisis.  It is dysfunctional, available primarily to the powerful, and raises only false hopes for marginalized people. But we are standing, post-election, on the verge of tremendous change.  Looking to a Biden Administration that, at its core, has indicated a commitment to righting the wrongs of the past and looking for smarter, more human (and humane) solutions.  Clemency is a fantastic opportunity for such an administration: fixing clemency in a way that would spur transformative change doesn’t require congress, doesn’t require massive bureaucracy, and doesn’t require anything other than strong executive action–and an executive ready to leverage the unique depths of his own empathy.

The process is simple: first, the new President Joe Biden must move the clemency process out of DOJ and into the White House, and appoint someone with deep grounding in the topic–and bipartisan credibility–to lead a committee on clemency that would not only build a system to process individual applications faster, but create proactive tactics for finding ways to use the clemency power to undo the worst impacts of bad, carceral law–even for people who hadn’t been able to file for relief on their own.  Best of all, this idea isn’t particularly controversial: it was supported during the primary by everyone from Senators Amy Klobuchar to Bernie Sanders, it made it through the Biden-Sanders Unity Taskforce, and it was integrated into the 2020 Democratic Party platform.  For context, this makes it significantly less controversial than, say, legalizing marijuana — a policy many, many states are already enacting.

Rachel Barkow, of course, would be a very smart choice, as someone whose primary body of work has focused on building a better clemency system, and who has also been celebrated by advocates from across the political spectrum.  She’s not only a respected scholar and former clerk to the iconic Justice Scalia, she’s a national policy player who has been through Senate confirmation once already, joining the U.S. Sentencing Commission in 2013.  But importantly, her views aren’t limited to the ivory tower — she’s done the actual work of helping people apply for clemency: she and co-author Mark Osler started a “pop up” clemency clinic to help people apply for clemency in 2014....

Leading a team that would not just include but center the experiences of people who had lived through incarceration, and also reserve space for public defenders, civil rights lawyers, and progressive prosecutors who carry a more modern understanding of second chances than their old-school peers, Barkow could hand the President a mechanism for fostering liberty, opportunity and restoration out of the wreckage of our bloated system.  She could change the game by building a faster, smarter process.  For people who love comparisons, Barkow’s role in the clemency conversation is not dissimilar from the robust academic-yet-tactical power Senator Elizabeth Warren has brought to the conversation around the Consumer Financial Protection Bureau.  Tasking Barkow with bringing clemency into the White House would be a little like letting Sen. Warren supercharge the CFPB.

Instead of placing endless barriers between deserving, promising people and their chance to be heard, or allowing prosecutorial dinosaurs at DOJ to stand between ordinary people and opportunity, she and her committee could fast-track applications and give President Biden an opportunity to be a groundbreaking leader in this area.  They could seek out specific areas where we know sentences are too long and out of step with current enforcement priorities and find people who may not have had the capacity to file a petition, but whose sentence is wildly out of step with modern views. It would be especially beautiful to break down the legacy of 1994 — and 1990s punitive measures more generally — with this unique and deceptively simple action.

December 2, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Interesting advocacy for Senator Durbin to take over top Dem spot on Senate Judiciary Committee

In my upper-level sentencing class, I spend a lot of time highlighting for students how many different system players have an impact on sentencing law, policy and practice.  Too often, a cursory discussion of sentencing looks only at trial judges and judicial decision-making.  But at the case-specific level, decisions by victims and police and prosecutors and defense attorneys can often have a profound and even controlling impact on sentencing outcomes.  System-wide, players inside and around all levels of legislative, executive and judicial branches can directly and subtly impact sentencing law and policy.  These realities are on my mind upon seeing this recent Hill piece headlined "Criminal justice groups offer support for Durbin amid fight for Judiciary spot."  Here are the details:

A coalition of criminal justice groups is signaling support for Sen. Dick Durbin (D-Ill.) in his bid to take over the top Democratic spot on the Senate Judiciary Committee.  Justice Roundtable, a coalition of more than 100 groups, sent a letter to Senate Democratic Leader Charles Schumer (D-N.Y.), obtained exclusively by The Hill, signaling support for Durbin, citing his previous work on criminal justice reform.

"At this inflection point in the nation’s history, particularly as we confront a devastating pandemic and systemic racial inequality, we are comforted to know Senator Durbin’s long-standing commitment to human rights, fairness and justice will guide him at this critical time.  He is a trusted and experienced leader, and we welcome his ascension in the Judiciary Committee," Justice Roundtable leadership wrote to Schumer.

Durbin, who was recently reelected to serve as the Senate Democratic whip in the next Congress, has worked for years on criminal justice legislation.  Most recently he teamed up with Sen. Chuck Grassley (R-Iowa), who was then the chairman of the Judiciary Committee, on the Sentencing Reform and Corrections Act and the First Step Act.  The First Step Act, which incorporated provisions of the first bill, was passed in 2018 after Senate Majority Leader Mitch McConnell (R-Ky.) agreed to give it a vote amid pressure from the White House and a bipartisan group of senators.

"If not for Dick Durbin sentencing reform would not be a part of the First STEP Act. He was very much an ally of the criminal justice groups and the liberal groups," Inimai Chettiar, the federal legislative and policy director for the Justice Action Network, told The Hill, crediting Durbin with "holding people's feet to the fire."

Durbin and Grassley, who will chair the Judiciary Committee if Republicans keep the majority, have also teamed up this year on legislation reforming compassionate release for federal prisoners amid the coronavirus.

Durbin, who is serving in the No. 2 spot as party whip, announced that he would seek the party's top position on the panel after Sen. Dianne Feinstein (D-Calif.) said she would step down from the spot. Some progressives, however, have signaled support for Sen. Sheldon Whitehouse (D-R.I.), who has also been active on criminal justice and prison reform and has been a leading voice in the caucus on issues like campaign finance reform and the judiciary....

"Anyone who cares about criminal justice reform and its impact on racial justice should want [Durbin] to be the top Democrat on Senate Judiciary," Kevin Ring, the head of the FAAM Foundation, tweeted amid the progressive pushback against Durbin. He added on Monday that "this is madness. You don’t pass over Michael Jordan to shake things up. Dems should pick Durbin if they want to pass bolder criminal justice reform."...

The offers of support for Durbin comes as criminal justice groups are gearing up to try to get additional legislation passed under the incoming Biden administration. Biden, during the White House race, vowed to end the government's use of private prisons, end cash bail and work to end the use of the death penalty.

If Durbin or Whitehouse would be chair or ranking member of the Judiciary Committee remains unclear because which party will control the Senate will come down to the two Georgia runoff elections on January 5. "I think it is critically important who the leadership of the Senate Judiciary Committee is going to be and I think Dick Durbin has a very proven record of being able to fight for criminal justice reforms," Chettiar said.

It is so interesting to see criminal justice reform advocates advocating to a Senate leader about who should ge given a leadership role in the chamber.  These advocates fully understand the importance of having a vocal proponent for criminal justice reform serving in a key Senate role (although how key that role is to be awaits the run-off results next month in Georgia).  As I explained in this post last month, I am cautiously optimistic that some form of sentencing reform will be an arena for important bipartisan discussion and work in the next Congress no matter who is in charge.  But who is in charge still matters a lot, so it will be interesting to see how the new Senate Judiciary Committee takes shape. 

December 2, 2020 in Criminal justice in the Biden Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Seventh Circuit panel says old guideline does not limit potential "extraordinary and compelling reasons" for 3582(c)(1)(A) motions after FIRST STEP Act

Last night in this post, I noted the big compassionate release ruling from the Sixth Circuit in US v. Jones, 20-3701 (6th Cir. Nov. 20, 2020) (available here), which ruled that "the passage of the First Step Act rendered § 1B1.13 'inapplicable' to cases where an imprisoned person files a motion for compassionate release."  In other words, the Sixth Circuit held that district courts now have broad authority to determine what now qualifies as "extraordinary and compelling reasons" for a sentence reduction under the statutory provisions of 18 U.S.C. § 3582(c)(1)(A) despite the fact that a pre-FIRST STEP provision of the guidelines, § 1B1.13, might seem to limit that authority. 

Helpfully, a couple of readers made sure I did not miss another ruling from another circuit on the same topic that happened to be handed down the same day as Jones.  Specifically, a Seventh Circuit panel in US v. Gunn, No. 20-1959 (7th Cir. Nov. 20, 2020) (available here), had this (and more) to say on this topic:

Like the Second Circuit, see United States v. Brooker, 976 F.3d 228 (2d Cir. 2020), we disagree with this reading of the statute’s trailing paragraph.  It says that a reduction must be “consistent with” all “applicable” policy statements.  Section 1B1.13 addresses motions and determinations of the Director, not motions by prisoners.  In other words, the Sentencing Commission has not yet issued a policy statement “applicable” to Gunn’s request.  And because the Guidelines Manual lacks an applicable policy statement, the trailing paragraph of §3582(c)(1)(A) does not curtail a district judge’s discretion.  Any decision is “consistent with” a nonexistent policy statement.  “Consistent with” differs from “authorized by”.

The statute itself sets the standard: only “extraordinary and compelling reasons” justify the release of a prisoner who is outside the scope of §3582(c)(1)(A)(ii).  The substantive aspects of the Sentencing Commission’s analysis in §1B1.13 and its Application Notes provide a working definition of “extraordinary and compelling reasons”; a judge who strikes off on a different path risks an appellate holding that judicial discretion has been abused.  In this way the Commission’s analysis can guide discretion without being conclusive....

Like the district court, we hope that the Sentencing Commission’s ability to revise its guidelines and policy statements will be restored by the appointment of additional members.  Until that happens and §1B1.13 is amended, however, the Guidelines Manual lacks an “applicable” policy statement covering prisoner-initiated applications for compassionate release.  District judges must operate under the statutory criteria — “extraordinary and compelling reasons” — subject to deferential appellate review.

A few of many, many prior related posts:

December 2, 2020 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, December 01, 2020

Sixth Circuit panel rules "courts have full discretion" to determine extraordinary and compelling reasons for 3582(c)(1)(A) motions

I only today saw a big notable Sixth Circuit ruling from a few weeks ago discussing the reach and application of the compassionate release provisions amended by the federal FIRST STEP Act.  As regular readers know, in lots of (pre-COVID) prior posts, I made much of the provision of the FIRST STEP Act allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  The SIxth Circuit's recent ruling in US v. Jones, 20-3701 (6th Cir. Nov. 20, 2020) (available here), constitutes the second big circuit decision ruling that district courts have broad discretion to determine what now qualifies as "extraordinary and compelling reasons" for a sentence reduction.

The first significant circuit ruling on the reach and application of § 3582(c)(1)(A) came from the Second Circuit in US v. Zullo/Brooker, No. 19-3218-CR (2d Cir. Sept. 25, 2020) (available here; discussed here).  This latest circuit ruling from the Sixth Circuit in Jones folllows the same path by providing a thoughtful and thorough accounting of the history of applicable law on the way to these important statements: 

We now join the majority of district courts and the Second Circuit in holding that the passage of the First Step Act rendered § 1B1.13 “inapplicable” to cases where an imprisoned person files a motion for compassionate release.  See United States v. Brooker, 976 F.3d 228, 234 (2d Cir. 2020).  Until the Sentencing Commission updates § 1B1.13 to reflect the First Step Act, district courts have full discretion in the interim to determine whether an “extraordinary and compelling” reason justifies compassionate release when an imprisoned person files a § 3582(c)(1)(A) motion....

By following the Second Circuit’s lead, we weave together three compatible aspirations: preserving as much of § 1B1.13 that can be saved, adhering to Congress’s intent, and respecting the Sentencing Commission’s thoughtful authorship of § 1B1.13’s commentary.  In cases where incarcerated persons file motions for compassionate release, federal judges may skip step two of the § 3582(c)(1)(A) inquiry and have full discretion to define “extraordinary and compelling” without consulting the policy statement § 1B1.13.  Thus, the district judge in Jones’s case permissibly assumed for the sake of argument that extraordinary and compelling circumstances existed without reference to the policy statement § 1B1.13.

There is a lot more in the Sixth Circuit ruling in Jones worth checking out, but most consequential is this clear statement that district courts are not limited by the (now-dated, pre-FIRST-STEP-Act) language of § 1B1.13 when assessing what may qualifies as "extraordinary and compelling reasons" for a sentence reduction.  I believe a few other circuits are considering this issue now, and it will be interesting to see if any more rule of this matter before we get tho the two-year anniversary of the FIRST STEP Act later this month.

A few of many, many prior related posts:

December 1, 2020 in FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Federal Defenders' updated fact-sheet on COVID-19 and federal detention

Sentencing Resource Counsel for the Federal Public Community Defenders now have updated this fact sheet on "The COVID-19 Crisis in Federal Detention."  This two-page document is dense with information and links about the continued ugly state of federal detention amidst the pandemic.  I recommend the full document and all its helpful links, and here are some of the details (absent the links):

Eight months into the pandemic, the failure to control COVID-19 in federal detention remains “both a public health catastrophe and a moral one.”  In the Federal Bureau of Prisons (BOP), the disease is infecting incarcerated individuals at a rate at least 4.77 times the general population.  The U.S. Marshals Service (USMS) doesn’t publicly post data on infections, but in statements to the media, it has reported that as of mid-November, 6,676 individuals in its custody had tested positive for COVID-19 and 20 had died. Federal officials have the power to protect individuals in federal custody from harm, but have failed to do so....

There have now been 157 reported deaths of individuals incarcerated in BOP, a devastating loss.  They were parents, siblings, and children.  They were us.  And some of their deaths surely were preventable.  BOP’s press releases reveal that the majority — 117 — were at higher risk of complications from COVID-19 and that BOP knew it.  Nearly a third of those who have died in BOP’s care were sixty-five or older.

At least 25 individuals died in BOP custody after filing—and in some cases, even after being granted — requests for release.  Many wrote to the court to plead for their lives in the days, weeks, and months preceding their deaths....

BOP and AG Barr have barely used the tools Congress gave them to safely lower prison populations.  The CARES Act authorized AG Barr to dramatically expand the use of home confinement to protect the most vulnerable from COVID-19.  Instead, AG Barr and BOP issued restrictive guidance and memos, each “more confusing than the next,” that together establish a “complex set of procedural and logistical hurdles to home confinement.”  The OIG found that BOP failed to use its early-release authorities to transfer vulnerable individuals to safety in its reviews of hard-hit facilities like Lompoc Federal Correctional Complex (FCC) and Oakdale FCC.  During the first three months of the pandemic, BOP approved only 11 of the 10,940 — 0.1% — of compassionate release requests it received.  The First Step Act of 2018 expanded compassionate release so that individuals may file a motion directly with the court 30 days after the warden’s receipt of a request, but that delay, coupled with routine opposition to release by DOJ, prevents vulnerable defendants from obtaining critical relief.  Based on a survey of defense attorneys representing clients across the country, we are not aware of a single BOP-initiated motion for compassionate release based on heightened risk of severe illness from COVID-19 infection.

December 1, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Can Kim Kardashian help stop next week's scheduled federal execution?

The question in the title of this post is prompted by this Los Angeles Times piece headlined "Kim Kardashian West flexes her prison-reform muscle, taking on death-penalty case." Here are excerpts:

Kim Kardashian West is flexing her criminal justice reform muscles for perhaps the last time before President Trump leaves office, asking that the sentence of federal death-row inmate Brandon Bernard be commuted to life in prison without parole before Bernard’s Dec. 10 execution date.

Bernard was sentenced to death in 2000 for the murder of Stacie Bagley, who was killed with her husband after a carjacking and robbery in June 1999 left them locked in the trunk of their car, which was set on fire after both victims were shot. Todd Bagley died from the gunshot, but Stacie died in the fire, which was set by Bernard. The murders took place on Ft. Hood military land in Texas, making it a federal case.

“First, I want to say that a terrible crime was committed and me fighting for a stay of execution does not take away from the sympathy I have for the victim’s Todd and Stacie Bagley, and their families. My heart breaks for everyone involved,” the reality TV star and beauty mogul wrote Sunday in a series of tweets.

Kardashian West first revealed her interest in criminal-justice reform in 2018, when she and others successfully lobbied President Trump to pardon Alice Marie Johnson, who had served 22 years of a life sentence for a nonviolent drug offense. Since then, she has started studying law and has stepped up on behalf of numerous other convicts. In April, she released “Kim Kardashian West: The Justice Project,” a documentary on Oxygen.

“While Brandon did participate in this crime, his role was minor compared to that of the other teens involved, two of whom are home from prison now,” Kardashian West continued Sunday on Twitter.

The fourth man involved in the crimes, Christopher Andre Vialva, was executed Sept. 24 after being sentenced to death on three of the four charges he faced and life in prison on the other. Bernard also received life sentences on three of the four counts, which included committing or aiding and abetting carjacking and conspiracy to commit murder.

Kardashian West tweeted that Bernard wasn’t involved in the initial carjacking and was “stunned” when the Iowa youth ministers were shot. He feared for his own life, she said, when he sprayed lighter fluid into the car and set it on fire to destroy the evidence.

The 40-year-old mother of four cited a recent article written by the prosecutor who defended Bernard’s death sentence on appeal but now believes that sentence should be tossed. She also posted videos from two of the five jurors who — out of the nine jurors still alive — now regret their vote for the death sentence two decades ago. None of those people, however, doubts Bernard’s guilt.

“At trial Brandon’s attorney fell short by not hiring any experts who could have explained to the jury why Brandon decided to leave the video game store that night or how he had grown up in an abusive home, or how his homeless father had left him searching for protection in the streets,” Kardashian West tweeted. “His trial attorney also failed to tell the jury how remorseful he was or anything about his background. We now know this testimony would have spared his life.”...

Bernard, who was convicted of the same four charges Vialva was, got the death sentence for Stacie Bagley’s killing. He was 18 at the time of the murders and, like Vialva, a gang member, according to court documents.

It might seem silly to think a reality TV star like Kim Kardashian West would have sway with the President of the United States.  But, of course, the current President is himself a reality TV star, and he has been greatly influenced by Kimme in the past to reduce the severity of some federal sentences.  I would be quite surprised if she can convince Prez Trump to halt an execution, but I supposed I have learned the last four years to put nothing past this President.

A few prior related posts:

December 1, 2020 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, November 30, 2020

Two criminal cases up for SCOTUS oral argument this week

A day before the calendar makes it official, the Supreme Court starts its December argument sitting this morning. Two cases being heard this week are interesting criminal matters, and here are the basics thanks to SCOTUSblog:

Van Buren v. United States (Nov. 30): Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.

Case preview: Justices to consider breadth of federal computer fraud statute (Ronald Mann)

 

Edwards v. Vannoy (Dec. 2): Whether the Supreme Court’s decision in Ramos v. Louisiana, holding that the Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts, applies retroactively to cases that have already become final on direct review.

November 30, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Sunday, November 29, 2020

Reviewing CJUTF Recommendations: will the Biden Administration go all in with progressive prosecutors?

Right after the election, I blogged a bit (here and here) about some criminal justice reform recommendations from the Biden-Sanders Unity Task Force (available here pp. 56-62).  And last week, as explained here, I decided to start a series of posts to spotlight and amplify some recommendations from the CJUTF that ought to be of particular interest to sentencing fans.  This post will focus on prosecutors, and  begin by noting this recent Hill commentary by Miriam Krinsky headlined "Biden can rebuild trust in our justice system by prioritizing prosecutorial reform."  I recommend this piece in full, and here are a few choice passages:

[P]rosecutors wield vast power to determine whether someone comes into the justice system and the course of their case thereafter.  They control which charges to bring and make the high-stakes determination of whether to seek to keep people in jail as they await trial — which, in turn, makes them four times more likely to be sentenced to prison than if released pre-trial....

[T]he new administration’s ability to impact the criminal justice system will depend, in significant part, on its ability to support and work alongside local prosecutors.  To start, a robust task force on “21st Century Prosecution” can propel a new national vision of what it means to be a fair and just prosecutor — and a strategy for how to get there.

In other words, prosecutors are arguably the most consequential players in the criminal justice system, and reform advocates are eager to see the Biden Administration advance a "new national vision of what it means to be a fair and just prosecutor."   So, here is some of what the CJUTF has to say on this front:  

Task Force on Prosecutorial DiscretionCreate a new task force, placed outside of the U.S. Department of Justice, to make recommendations for tackling discrimination and other problems in our justice system that result from arrest and charging decisions....

Federal Prosecutorial Guidelines: Immediately withdraw the Trump Administration’s guidance advising prosecutors to pursue the harshest penalties possible, even for low-level offenses.  Reinstate the Obama-Biden Administration's Smart on Crime Initiative, and issue new federal guidelines that advise prosecutors not to overcharge cases in order to coerce plea deals, or to pursue harsher sentences in order to penalize citizens for exercising their right to a jury trial....

Appointing Prosecutors:  Appoint people committed to criminal justice reform to key prosecutorial positions, including AG, DAG, and U.S. Attorneys.

Transparency & Data Collection: Direct DOJ to collect data on federal prosecution practices and make it public. Include opening investigations, charging, pretrial detention and release, plea offers, and sentence recommendations. Include data on racial disparities....

Support Progressive Prosecutors: Support new state prosecutors through funding and technical support in their efforts to ensure public safety while reducing incarceration.

The commitment to reinstate the Obama-Biden Administration's Smart on Crime Initiative strikes me as notable, though not quite game-changing.  A serious commitment to require DOJ to collect comprehensive data about its practices could be a bigger deal than any particular substantive policy change, though it is unclear just how this data might be collected and used.  Perhaps an independent task force on prosecutorial discretion can and will figure out how to effectively gather and operationalize federal prosecutorial data. 

In the end, the biggest game-changer could be if the Biden Administration were really to go all in with the progressive prosecutors movement.  Directing special federal funding and support to local progessive prosecutors could add momentum to an already significant local movement.  And the commitment to appoint reform-minded folks to all "key prosecutorial positions, including AG to DAG, and U.S. Attorneys" sounds like a commitment to having progressive prosecutors throughout the federal criminal justice system.

In the end, I suspect we will see a broad definition of "people committed to criminal justice reform" in key Biden appointments, and I do not think anyone should expect dramatic change in this arena right away.  But I do think there is reason to be hopeful that in coming years the US Department of Justice could become more of an ally, rathen than a persistent opponent, of at least some progressive criminal justice reforms.

Prior related posts:

November 29, 2020 in Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

"The Legality of Presidential Self-Pardons"

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

The traditional understanding of the Article II Pardon Clause is that the President may grant clemency to anyone who has committed a federal offense.  Yet, a question exists whether that “anyone” includes the President.  The issue has arisen on three occasions: in the 1970s, when President Richard Nixon was under investigation for his involvement in crimes associated with Watergate; in the 1980s, when the Iran-Contra Investigation raised the question whether President George H.W. Bush knew about an illegal arms-for-hostages arrangement; and more recently when President Donald Trump publicly stated that he had the legal authority to pardon himself to end a Department of Justice investigation into Russia’s involvement in the 2016 presidential election.  No court has ruled on the legitimacy of a presidential self-pardon, and commentators have disagreed over the issue.  In my opinion, the Article II Pardon Clause allows the President to pardon himself, but the Article I Impeachment and Removal Clauses permits Congress to remove the President for doing so.

Clemency was a prerogative of the English Crown.  The King’s grant of a pardon was conclusive and not subject to revision by Parliament or the English courts.  The Pardon Clause reflects the prerogative nature of that power.  Its text contains only two restrictions — one limiting clemency to federal offenses, the other denying the President the ability to halt impeachment proceedings — and neither one prevents self-pardons.  Supreme Court case law does not justify creating a self-pardon exception.  As interpreted by the Court, the Pardon Clause is the last surviving remnant of the royal prerogatives.  To be sure, the Take Care Clause imposes a fiduciary obligation on a President, one comparable to the obligation borne by a private trustee, to act in the best interests of his client — the public — and a President can breach that duty by excusing himself from criminal liability.  But the Impeachment and Removal Clauses provide the appropriate remedy for any abuse of presidential authority, including any misuse of the pardon power.  That conclusion will not satisfy anyone who believes that there must be a judicial remedy available for every wrong, but it is the best reading of the text of our Constitution.

November 29, 2020 in Clemency and Pardons, Who Sentences | Permalink | Comments (1)

Saturday, November 28, 2020

"Misaligned incentives and the scale of incarceration in the United States"

Thanks to twitter, I just saw this notable recent article, which I use for the title of this post, published in the November 2020 issues of the Journal of Public Economics. The article is authored by Aurélie Ouss and here is its "highlights" and "abstract":

Highlights
  • In the US, states typically pay for prison, while county employees (judges, prosecutors, probation officers…) determine time spent in custody.
  • When the cost of incarceration is internalized by the entity choosing punishment, incarceration is lower, without detectable effects on crime.
  • Misaligned incentives in criminal justice may have contributed to the growth of incarceration in the United States

Abstract

The incarceration rate has increased substantially in the United States between the 1980s and the 2000s.  In this paper, I explore an institutional explanation for this growth: the fact that costs of incarceration are not fully internalized.  Typically, prison is paid for at the state level, but county employees (such as judges, prosecutors or probation officers) determine time spent in custody.  I exploit a natural experiment that shifted the cost burden of juvenile incarceration from state to counties, keeping overall costs and responsibilities unchanged.  This resulted in a stark drop in incarceration, and no increase in arrests, suggesting an over-use of prison when costs are not internalized.  The large magnitude of the change suggests that misaligned incentives in criminal justice may be a significant contributor to the current levels of incarceration in the United States.

November 28, 2020 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Friday, November 27, 2020

Exploring what Prez-elect Biden might (or might not) get done for criminal justice reforms

NBC News has this new piece discussing, mostly in vague terms, what criminal justice reform might look like under a Biden Administration. The piece is headlined "Biden was pilloried for his criminal justice record. During his presidency, advocates expect change," and here are excerpts:

Experts told NBC News that now as both political parties appear to have common ground on the issue and significant steps have been made over the past decade, a Biden administration needs to make criminal justice reform more than a talking point.

“The chief cornerstone has already been laid, the groundwork has already been done, the foundation has already been built.  The only thing that he has to go in and do is continue to capitalize off of the momentum,” said Louis L. Reed, the director of organizing and partnerships at #Cut50, a bipartisan criminal justice reform nonprofit.  “Biden needs to hit the ground running on legislation and executive action.”

The Biden transition team did not respond to a request for comment on their plans.  But as a presidential candidate, he proposed sweeping reforms, including ending private prisons, cash bail, and mandatory-minimum sentencing.  He has also been a vocal opponent of the death penalty and police reform.  He has floated, for example, tying federal funds given to police departments to diversity initiatives and community policing, among other areas — rebuffing calls from progressive activists to defund police departments....

Biden’s legislative hopes also hinge on the Democrats winning the majority in the Senate in January.  He has promised a flurry of executive orders on Day 1 in the White House to unwind a number of Trump administration policies and may opt to continue doing so if Republicans obstruct his legislative efforts.  But the effectiveness of executive orders can be limited when it comes to criminal justice reform, which would not affect state and local prisons.

Tackling police reform will be an especially delicate issue after a year in which the deaths of Black Americans at the hands of law enforcement prompted worldwide protests and national reckoning.  Balancing the concerns of police officers and progressive activists looking to slash their budgets and re-imagining policing is one illustration experts say will be one of the hurdles he could face. Biden during the campaign rejected calls to defund the police, angering some progressive activists.  At the same time, he also lost support from police unions, who largely supported Trump.

Adam Gelb, the founder of the Council on Criminal Justice, a bipartisan criminal justice nonprofit, is a former Senate Judiciary staffer who worked with Biden on the 1994 crime bill.  He said that he believes Biden’s promise to be a coalition builder is genuine but that he may not be fully prepared to restructure the nation’s sprawling criminal justice system.

“I don't think he sees crime control and justice as a zero-sum game, but will focus on policies that can produce win-wins,” he said, adding that Biden and Vice President-elect Kamala Harris recognize that "many of the policies of the 80s and 90s overshot the mark, and are now way out of step with public sentiment, as well as research about what actually works."...

Gelb said he believes Biden understands that there are social inequalities but does not fully grasp the extent to which the system itself is the root of the problem.  "My sense is that he understands that the criminal justice system is deeply flawed and needs to be fixed, but that he sees the system as a source of solutions, not a fundamental cause of the problems,” he said.  “And that means a balanced strengthening of the systems of enforcement, and prevention, and treatment, and corrections, and the courts."

A few of many prior related posts:

November 27, 2020 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (1)

Wednesday, November 25, 2020

Prez Trump grants pardon to Michael Flynn ... are a lot more to come?

As reported here by NPR, "President Trump has pardoned his first national security adviser, Michael Flynn, who spent years enmeshed in an often bizarre legal war with the government that sprang from the Russia investigation."  Here is more about an unsuprising act of clemency:

Trump announced the news on Twitter as Americans prepared to observe the Thanksgiving holiday this week.

The pardon brings an end to a long-running legal odyssey for Flynn, who was the only member of the Trump administration to be charged as part of special counsel Robert Mueller's Russia investigation.

Flynn pleaded guilty in 2017 to lying to the FBI about his contacts with the Russian ambassador, and then cooperated extensively with prosecutors. But he ultimately reversed course and accused the government of trying to frame him. Flynn went to so far as to withdraw his first plea of guilty and substitute a second plea of not guilty, even though he'd acknowledged the underlying conduct that was against the law and been close to receiving a sentence.

The pardon drew condemnations from critics who've said Trump's actions to help his friends interfere with the justice system. House Intelligence Committee Chairman Adam Schiff, D-Calif., for example, who helped prosecute Trump at his impeachment, called the president's actions obviously corrupt.

Flynn, meanwhile, reacted on Twitter with a Bible verse alluding to a holy rescue.

Trump's action on Wednesday may open the door to possible clemency for other former Trump advisers who were indicted as part of the Russia investigation, including former campaign chairman Paul Manafort.

Meanwhile, this New York Times article, headlined "White House Weighs Pardon Blitz Before Trump’s Exit," highlights that I might have a lot of Trumpian clemency action to blog about in the coming weeks.  Here is how the piece gets started and some additional excerpts:

It’s not just Michael T. Flynn. The White House is weighing a wave of pardons and commutations by President Trump in his final weeks in office, prompting jockeying by a range of clemency seekers and their representatives, including more allies of Mr. Trump.

Among those hoping for pardons are two former Trump campaign advisers, Rick Gates and George Papadopoulos, who like Mr. Flynn, the former national security adviser who was pardoned on Wednesday by Mr. Trump, were convicted in cases stemming from the special counsel’s Russia investigation.

Alan Dershowitz, the law professor who represented Mr. Trump during his impeachment trial, is considering seeking clemency for two of his clients — a New Jersey man serving more than 20 years for defrauding investors, and a billionaire businessman convicted in what’s been called “one of North Carolina’s worst government corruption scandals.” Mr. Dershowitz said he recently discussed the pardon process with the White House.

But it is not just the well-connected and wealthy who could benefit from one of Mr. Trump’s final exercises of executive power, lawyers in contact with the administration said. Several groups that have pushed for a criminal justice overhaul are working with an ad hoc White House team under the direction of Jared Kushner, Mr. Trump’s son-in-law and adviser, with a goal of announcing as many as hundreds of commutations for offenders now in jail for crimes ranging from nonviolent drug convictions to mail fraud and money laundering.

“Lists of people are being circulated,” said Brandon Sample, a Vermont lawyer who specializes in presidential pardons and has submitted several names of people to be considered. Among them is Russell Bradley Marks, 57, who has been imprisoned after pleading guilty in 1992 on a cocaine-related conviction for which he was given a mandatory life sentence....

Lawyers say the White House is also focused on ways to use presidential clemency powers to further burnish Mr. Trump’s role in what is considered the most consequential criminal justice legislation in a generation, which reduced sentences for nonviolent offenders. A blitz of late pardons or commutations for federal crimes — over which presidents have unchecked power — is seen by some criminal justice reform activists as another way to build his record on that issue....

The planned clemency initiative, and the lobbying that has unfolded around it, has been hindered in some ways in recent weeks by Mr. Trump’s refusal to formally concede his loss to President-elect Joseph R. Biden Jr.

Potential pardon seekers and their representatives said in interviews that they were waiting to escalate their appeals until Mr. Trump conceded, or at least signaled that he had started to come to grips with the looming end of his presidency. Appealing for clemency before then, people involved warn, risks backfiring, because it could be seen as acknowledging a defeat that Mr. Trump has thus far refused to accept....

The effort to create a White House commutation program separate from the formal Justice Department office started last year after the 2018 passage of the First Step Act, which expanded an early release program and modified sentencing laws, including mandatory minimum sentences for nonviolent drug offenders. There are at least 13,700 people who have formally applied to the Justice Department for pardons that are listed as “pending.”

Representatives of inmates seeking sentence reductions have separately been sending the White House lists of names, typically focusing on people who received unusually long sentences for nonviolent crimes after declining to accept a plea agreement and others serving long sentences because of mandatory guidelines. “Each of these are sad, sad situations,” said Norman Reimer, the executive director of the National Association of Criminal Defense Lawyers. “They show massive injustice and over- sentencing, and we hope he will act on them.”

November 25, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"Here's One Thing Republicans and Democrats Agree on: Criminal Justice Reform"

The title of this post is one headline that I have seen for this new New York Times article (which echoes some themes I have stressed in a few posts here and here from election week). I recommend the article in full, and here are some excerpts:

In a video presenting his closing argument for maintaining Republican dominance of the Senate, the majority leader, Mitch McConnell of Kentucky, chose three issues — tax cuts, judicial appointments and criminal justice reform.

Mr. McConnell had resisted bringing the First Step Act, which expanded release opportunities for federal prisoners, to the floor under former President Barack Obama and did so during the Trump administration only under extreme pressure.  Its passage firmly established the allure of reform and is now widely cited as President Trump’s most significant bipartisan achievement....

[C]riminal justice reform offers something for just about everyone: social justice crusaders who point to yawning racial disparities, fiscal conservatives who decry the extravagant cost of incarceration, libertarians who think the government has criminalized too many aspects of life and Christian groups who see virtue in mercy and redemption.

At the federal level, both parties have proposed police accountability bills.  Senator Lindsey Graham, the Republican chairman of the Judiciary Committee, has recently signaled that he is open to reinstating parole for federal prisoners, which was eliminated during the tough-on-crime 1980s.  President-elect Joseph R. Biden Jr. has promised to reduce incarceration and supports abolishing mandatory minimum sentences and expanding mental health and drug treatment.

Relatively few voters ranked the criminal justice system at the top of their list of concerns, even after the killing of George Floyd in May thrust policing into the national spotlight.  But patient work by advocates, buy-in from conservative groups and the United States’s position as a global leader in incarceration have gradually spread the message that the system is broken, and made fixing it a cause with broad appeal. 

A wide array of criminal justice measures did well on the ballot, including increasing police oversight, legalizing drugs and restoring voting rights to those with felony records.

Fewer Americans than ever believe the system is “not tough enough,” according to a recent Gallup poll.  And in a sign of how much attitudes have changed since lawmakers boasted of locking people up and throwing away the key, Mr. Trump and Mr. Biden sparred over who had let more people out of prison.

The fact that it is a niche issue may serve to increase its chances of breaking partisan gridlock....

The pandemic, in which prisons and jails have become some of the biggest viral hot spots, presents an opportunity for advocates, who hope that Covid-19 relief measures like expanded medical release and early parole will outlast the spread of the coronavirus.

Pandemic-related budget shortfalls represent another opportunity. The Texas Criminal Justice Coalition, a progressive group, has called its legislative agenda for next year “Spend Your Values, Cut Your Losses,” arguing that measures like lowering drug penalties and making it harder to revoke probation and parole will save millions of dollars....

Robert Blizzard, a Republican pollster, said that criminal justice reform proposals garner support across the board, and help Republicans reach outside their base to groups like suburban women and people of color.

I am pleased to see this article and like many of its themes.  But amidst generations of mass incarceration and criminalization, data showing a third of US adults has a criminal record, and nationwide 2020 protests focused on racial (in)justice, I am still struck and troubled by the blasé statement that criminal justice reform is just a "niche issue."  (Since I read nine of the first ten Amendments to the US Constitution as setting forth formal or informal safeguards against extreme uses of the police power, I suppose I should be grateful the Framers did not view as "niche" the operation of American criminal justice systems.)

This NY Times piece, coming right after a big transition election, leads me to recall this online article I penned for the Harvard Law & Policy Review almost exactly 12 years ago under the title "Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities."  Among other points, I urged progressives to seek to forge bipartisan coalitions for reform in this way:

[P]rogressives can and should be aggressively reaching out to modern conservatives and libertarians in order to forge new coalitions to attack the many political and social forces that contribute to mass incarceration....  If truly committed to their espoused principles of human liberty and small government, modern conservatives and libertarians should be willing and eager to join a serious campaign committed to reversing the incarceration explosion.  Progressives, rather than categorically resisting calls for smaller government, should encourage modern conservatives and libertarians to turn their concerns and energies toward improving America’s criminal justice systems.  Areas where harsh criminal laws appear to be driven by government efforts to hyper-regulate often intangible harms, such as extreme mandatory sentencing statutes related to drug crimes and gun possession, seem especially likely settings for a convergence of views and new alliances for advocacy efforts.  Specific, issue-based advocacy may allow progressives to forge coalitions with unexpected allies in order to work against some of the most unjust modern sentencing laws and policies.

Though a lot of progress has been made in since I wrote these words back in 2008, there is still a whole lot more that needs to get done. I hope political leaders at the federal, state and local levels will continue to keep working together (on this "niche" issue) to continue to move forward aggressively and effectively.

November 25, 2020 in Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Tuesday, November 24, 2020

Two different takes on Prez Trump's clemency record as his term nears conclusion

The silly Presidential turkey pardon tradition has prompted two new pieces about Prez Donald Trump's clemency record that strike markedly different tones.  Here are the headlines, links, and excerpts:

By John Gramlich and Kristen Bialik at Pew Research Center, "So far, Trump has granted clemency less frequently than any president in modern history":

As he enters the home stretch of his White House tenure, Donald Trump has used his clemency power less often than any president in modern history, according to data from the U.S. Department of Justice.  Trump’s sparse use of pardons, commutations and other forms of official leniency stands in sharp contrast to his predecessor, Barack Obama, who used the clemency power more frequently than any chief executive since Harry Truman.

As of Nov. 23, Trump had granted clemency 44 times, including 28 pardons and 16 commutations.  That’s the lowest total of any president since at least William McKinley, who served at the turn of the 20th century.  Obama, by comparison, granted clemency 1,927 times during his eight-year tenure, including 212 pardons and 1,715 commutations.  The only modern president who granted clemency almost as infrequently as Trump is George H.W. Bush, who granted 77 pardons and commutations in his single term.

By Steven Nelson at the New York Post, "Turkeys, Corn and Cob, expected to be first in slew of final Trump pardons":

People close to the White House believe President Trump may pardon humans in addition to turkeys this holiday season — with one advocate saying they expect Trump to close out his term with a bang as the “most merciful” president in history.  Trump will “pardon” gobblers named Corn and Cob in an annual tradition at the White House on Tuesday, but in a potential twist, allies and reform advocates are anticipating more serious reprieves in the coming weeks.

“President Trump has moved mountains since taking office and I’m certain he’s not done yet,” said Amy Povah, a clemency advocate and founder of the CAN-DO Foundation.  “I would not be surprised if he goes down in history as the most merciful president when it comes to correcting injustices carried over from the horrifying tough-on-crime era of the late ’80s and ’90s that is responsible for sending many good people to prison for life, including life for pot.”

Presidents generally are more generous with clemency — including pardons and prison commutations — toward the end of their terms, contributing to the anticipation.

Though I am always eager to complain about Presidents failing to use their clemency powers more, I think the Pew piece is a bit unfair because it compares Prez Trump's record in his first term to mostly two-term Presidents.  In fact, Prez Trump has already granted more clemencies his his first term than did Prez Obama or Prez George W. Bush at this point in their first terms.  Moreover, as the NY Post article suggests, there are reasons to expect Prez Trump will grant some more clemencies — perhaps a lot more clemencies — over his last few months in office.

I sincerely hope Amy Povah and others are effective in encouraging Prez Trump to become "the most merciful president when it comes to correcting injustices carried over from the horrifying tough-on-crime era."  But I cannot help but wonder how Prez Trump's own vision of his political future and legacy might impact his clemency work in the months ahead.  Any attempt at a self-pardon or granting clemencies to lots of family members or close advisors could be viewed as a tacit admission of serious wrong-doing and thus could, perhaps, hurt the Trump political brand.  But since I have never been quite able to figure out the Trump political brand, I will close here by highlighting some notable cases mentioned in the lengthy NY Post piece:

Some clemency aspirants were jailed-for-life for marijuana dealing or importing crimes under President-elect Joe Biden’s 1994 crime law, giving Trump an opportunity to thumb his nose at his 2020 rival....  Allies see the final two-month stretch of Trump’s term as an opportunity to cement his first-term legacy before handing over the reins to Biden, who authored some of the most punitive drug laws.

Paraplegic Michael Pelletier, 64, has a life sentence for smuggling marijuana from Canada into Maine in the early 2000s. Both jurisdictions later legalized the drug and he ruefully notes that pot shops have been deemed “essential” during COVID-19 lockdowns....  Another clemency seeker, Corvain Cooper, 41, has a life sentence for his role transporting marijuana from California to North Carolina, also under the three-strike provision of Biden’s law....

Many prisoners pushed by clemency advocates aren’t public figures and were sentenced for drugs.  David Barren, 55, whose drug-dealing life sentence was reduced to 30 years by former President Barack Obama, told The Post he hopes to be free while his parents, in their 80s, are still alive.  Rufus Rochell, 69, who is under home arrest as he completes a 40-year drug sentence, said his family is grateful that his brother Richard Williams, convicted in the same drug conspiracy, was released from prison this year under Trump’s reform law, but that he would be grateful to have his record cleared.

Physical lists of convicts seeking commutations and pardons have swirled in the West Wing since June 2018 when Trump freed Alice Johnson from a life sentence at the request of Kim Kardashian.  Johnson spoke at this year’s Republican National Convention and traveled with Trump to the first presidential debate in Cleveland.  Trump often speaks proudly of freeing Johnson and turned to her for recommendations.  During this year’s campaign, Trump pledged minority voters a new clemency commission if he won re-election.

The White House did not respond to a request for comment.

November 24, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"Fake News, Real Policy: Combatting Fear And Misinformation In Criminal Justice"

The title of this post is the title of this interesting new R Street policy study authored by Emily Mooney and Casey Witte. Here is part of its introduction:

Currently, opportunities for and examples of misinformation and fear-mongering within the criminal justice system are bountiful.  The United States is facing a global health crisis and struggling to productively address long-standing issues of racial injustice.  In the first half of 2020, our nation continued to see property crime and most forms of violent crime decrease, while murder and nonnegligent manslaughter rates (although historically still low) rose by nearly 15 percent when compared to the first half of 2019, while aggravated assaults rose by about 5 percent. Although still one of the most crime-free times in our nation’s history, many have been quick to blame this increase on policy changes, such early prison releases due to the COVID-19 pandemic, and civil unrest.9\ Yet, as experts have pointed out, the intersecting forces of a global pandemic, economic recession, racial unrest and nationwide protests mean it will take more time, data and intentional analysis to decipher the causal mechanisms of any current crime trends.

In both the past and present, it has been easy for criminal justice policy to be driven by fear and emotional policymaking rather than a sober assessment of the facts. This occurs for somewhat natural reasons, as the consequences of criminal justice policy failures can appear more immediate and visceral: the potential for the death of a loved one, lost property or abuse are far more tangible concepts than cybersecurity threats or green energy.  This is likely, at least in part, due to human memory — research shows experiences and events tied to strong emotions are more memorable than less dramatic or weighted incidents.  Further, policy success is often measured by recidivism — a zero-sum measure of an individual’s return to crime — rather than other metrics which show incremental progress.  On top of this, the media, more often than not, focuses on policy failures rather than policy successes.

Yet, fear-based and emotionally-driven policy debates and policymaking are a disservice to the American public.  Policymakers and the public may incorrectly deduce or be blind to the collateral consequences of their policies and are prone to letting biases impact their decision-making.  As a result, the same problems remain, which cost life, property and liberty in the process.

This paper seeks to address this trend by first examining the relationships between fear, misinformation and policy and then providing illustrative examples of modern criminal justice myths alongside the evidence stacked against them.  It will then conclude with a short list of policy solutions to combat misinformation and fear-mongering in criminal justice policy.

November 24, 2020 in National and State Crime Data, Who Sentences | Permalink | Comments (0)

Great discussions of progressive prosecution in latest issue of the Journal of Criminal Law and Criminology

Anyone and everyone intrigued by the progressive prosecutor movement should be sure to check out Volume 110, Issue 4 of the Journal of Criminal Law and Criminology.  These great-looking articles are in this great-looking issue:

November 24, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, November 23, 2020

Reviewing Criminal Justice Unity Task Force Recommendations: a new series to welcome a new President

Since the 2020 federal election results became clear a few weeks ago, I have already blogged a bit (here and here) about some of the the notable criminal justice reform recommendations [available here pp. 56-62] from the Biden-Sanders Unity Task Force (first discussed here).  With Prez-elect Biden now starting to announce his planned cabinet appointments, I have decided it is now time to start a new series of posts that spotlight and amplify some  recommendations from the Criminal Justice Unity Task Force that ought to get sentencing fans especially excited. 

I have never been quite sure if Prez-elect Joe Biden views the recommendations that emerged from the Biden-Sanders Unity Task Force as part of his official avowed agenda.  But I am quite sure that I am going to be eager to persistently judge the work of the Biden Adminstraton against the backdrop of what the Criminal Justice Unity Task Force (CJUTF) recommended.  And because soooooo much is recommended by the CJUTF, everyone should be prepared for a lot of coming posts in this series.

With that set up, let me start this series by spotlighting arguably the most exciting and challenging of all the CJUTF recommendations:

Sentence Length and Early Release: Task the U.S. Sentencing Commission with conducting a comprehensive review of existing sentencing guidelines and statutory sentencing ranges, with the goal of generating legislative recommendations, promulgating new guidelines, and issuing formal guidance to reduce unreasonably long sentences and promote rehabilitation.  The Commission should make recommendations regarding early release options, including expanding good time credits, reinstating federal parole, and creating a “second look” mechanism permitting federal judges to reevaluate sentences after a certain amount of time served.  Any such options should use a systematic, evidence-based approach that reduces risks to public safety, prevents racially disparate implementation, reduces the total number of people under federal custody and supervision, and limits the duration and conditions of supervision.

This recommendation is so exciting and challenging because it essentialy calls for a top-to-bottom "comprehensive" review of the federal sentencing system.  It is also exciting and challenging because it presupposes a functioning and functional US Sentencing Commission, which has not existed for the better part of two years because of USSC vacancies. 

I have flagged this issue in this first post in this series not only because it is arguably the most far-reaching of the CJUTF recommendations, but also because the incoming Biden Administration needs to be working now on appointments to the US Sentencing Commission if it really wants to hit the ground running.  Sadly, there is a long history of US Sentencing Commission not getting the attention it deserves and that it critically needs if and whenever federal policymakers are seriously committed to federal sentencing reform.  At a time when there is finally sustained bipartisan commitment to continued federal sentencing reforms, the new President and his team should be trying to get all the key players on the field ASAP.  All the other proposed CJUTF sentencing reforms that I will discuss in coming posts can and should be more effectively advanced if and when the Biden Administration does this critical initital appointing work.  

Prior related posts:

November 23, 2020 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Latest Gallup poll indicates "U.S. Support for Death Penalty Holds Above Majority Level"

Yf68dytyzk6h07t16w_kyqThe quoted portion of the title of this post is the headline of this Gallup report from a few days ago,  Here are excerpts from the report:

Americans' support for the death penalty continues to be lower than at any point in nearly five decades.  For a fourth consecutive year, fewer than six in 10 Americans (55%) are in favor of the death penalty for convicted murderers.  Death penalty support has not been lower since 1972, when 50% were in favor.

Gallup has asked Americans whether they are "in favor of the death penalty for a person convicted of murder" since 1936, when 58% said they were. In all but one survey -- in 1966 -- more Americans have been in favor than opposed.  The 1960s and early 1970s brought many legal challenges to the death penalty, culminating in a 1972 U.S. Supreme Court ruling that invalidated state death penalty statutes.  After the high court upheld revised state death penalty laws in 1976, support for capital punishment grew, peaking at 80% in 1994, a time of heightened public concern about crime.

This year's results are based on a Sept. 30-Oct. 15 survey.  Gallup occasionally asks another question to gauge death penalty support, with respondents indicating whether they believe the better punishment for murder is the death penalty or life imprisonment with no possibility of parole.  In the most recent update, from 2019, Americans favored life imprisonment over the death penalty by 60% to 36%, a dramatic shift from prior years.

Many Americans are thus conflicted on the death penalty.  The two Gallup trend questions indicate that about one in five Americans express theoretical support for use of the death penalty but believe life imprisonment is a better way to punish convicted murderers....

Both Democrats and independents show declines in their support for the death penalty, including similar drops (eight and seven percentage points, respectively) since 2016.  Between the 2000-2010 and 2011-2016 time periods, Democratic support dropped more (eight points) than independent support did (three points).  Now, 39% of Democrats and 54% of independents are in favor of the death penalty.  Meanwhile, Republicans' support for the death penalty has held steady, with 79% currently supporting it, unchanged since 2016 and barely lower than the 80% registered between 2000 and 2010....

Changes in the U.S. population appear to be a factor in declining death penalty support in recent years. Groups that are constituting a greater share of the U.S. adult population over time -- including millennials and Generation Z, non-White adults and college graduates -- all show below-average support for the death penalty.

Over the past four years, an average of 45% of those in Generation Z (those born after 1996) have favored the death penalty, as have 51% of millennials (those born between 1980 and 1996).  That compares with 57% of those in Generation X, 59% of baby boomers and 62% of those born before 1946.

Forty-six percent of non-White Americans, versus 61% of Non-Hispanic White Americans, support the death penalty. Among college graduates, 46% favor the death penalty, compared with 60% of those without a college degree.

November 23, 2020 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

"Some Modest Proposals for a Progressive Prosecutor"

the title of this post is the title of this new piece now available via SSRN authored by Steven Zeidman. Here is its abstract:

The progressive prosecutor movement has spawned a number of races for District Attorney where candidates fight to claim the mantle of most progressive potential prosecutor. However, the promises made by self-described forward thinking, if not exactly radical, prosecutor candidates, as well as those made by newly elected District Attorneys, are at best the kind of reformist reforms criticized by many as having little impact on entrenched systems of oppression and as ultimately expanding their reach.

It is incumbent on those looking for fundamental change in prosecutorial practices to try and assess whether any candidates are willing to take bolder steps than simply promising to prosecute more fairly and compassionately.  Instead, the inquiry must be whether the candidate is willing to give up any aspects of the awesome power and the vast resources bestowed upon the office, particularly when it comes to the trial process.

November 23, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, November 22, 2020

Notable review of New York's recent parole realities

This Times Union has this notable new article on New York's notable parole realities under the full headline "A 'broken' parole process: Data shows widened racial bias: Four years after racial disparities exposed, a state report has yet to be released." Here is how the piece gets started:

A white inmate in a New York prison is significantly more likely on average to be released on parole than a Black or Hispanic person — and that gap has widened in 2020, according to a Times Union analysis of the nearly 19,000 parole board decisions over the last two years.

The disparities continue despite steps by the Department of Corrections and Community Supervision to make the parole board more diverse.  That initiative began about four years ago, after Gov. Andrew M. Cuomo ordered an investigation by the inspector general's office into revelations in a New York Times series that exposed the racial imbalances in parole and prison disciplinary proceedings.  The investigation has languished and no public report has been released.

The inspector general’s office, in an email response to questions, asserted without providing any data that racial disparities have gone down in recent years.  They offered a list of policy changes that have been made, including changes to sentencing guidelines, appeals processes and implicit bias training.

DOCCS, which oversees New York’s 53 state prisons, said the Times Union's analysis was too limited.  Spokesman Thomas Mailey wrote that the analysis was inadequate because detailed factors like disciplinary and program records, positions of the district attorney, sentencing courts and victim impact statements were not considered.

But officials contacted for this story did not provide any evidence countering the Times Union's core findings.  And those findings were averages based on each parole initial hearing and reappearance over the last two years, showing that the racial disparities were prevalent in the outcomes.

In discretionary parole hearings from October 2018 through October 2020, where commissioners from the Board of Parole decided whether incarcerated people should be released from prison, the Times Union’s analysis showed that 41 percent of white people were granted parole, compared to 34 percent of Blacks and 33 percent of Hispanics.  These numbers include initial parole appearances once people meet their minimum sentences, as well as subsequently scheduled reappearances, which are usually every two years.  It excludes more specialized categories such as medical hearings or those relating to deportations.

If Black and Hispanic people were paroled at the same rates as whites over the last two years alone, there would be 675 fewer people behind bars.

November 22, 2020 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, November 20, 2020

US Department of Justice sets three more execution dates

In this July post I wondered aloud "How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?".  My main point in that post was that, after the completion of an initial three federal executions that month thanks to SCOTUS lifting lower court stays, it seemed that AG Barr would likely be able to have completed as many executions he decided to set.  For anyone who might have thought AG Barr would be content with ten executions in 2020 (eight already completed and two more planned), this new DOJ press reveals details he is not done.  This release is titled  "Executions Scheduled for Inmates Convicted of Brutal Murders Many Years Ago," and here are the essentials:

Attorney General William P. Barr today directed the Federal Bureau of Prisons to schedule the executions of three federal-death row inmates sentenced to death for staggeringly brutal murders, including the murder of a child and, with respect to two inmates, the murder of multiple victims.

  • Alfred Bourgeois abused, tortured, and beat to death his young daughter....  Bourgeois is scheduled to be executed by lethal injection on Dec. 11, 2020, at the Federal Correctional Complex, Terre Haute, Indiana.
  • Cory Johnson murdered seven people — Peyton Johnson, Louis Johnson, Bobby Long, Dorothy Armstrong, Anthony Carter, Linwood Chiles, and Curtis Thorne — in furtherance of his drug-trafficking activities....  Johnson is scheduled to be executed by lethal injection on Jan. 14, 2021, at the Federal Correctional Complex, Terre Haute, Indiana.
  • Dustin John Higgs kidnapped and murdered three women — Tamika Black, 19; Tanji Jackson, 21; and Mishann Chinn, 23....  Higgs is scheduled to be executed on Jan. 15, 2021.

November 20, 2020 in Death Penalty Reforms, Who Sentences | Permalink | Comments (4)

NACDL continuing great work spotlighting the ugly trial penalty now through compelling clemency petitions

This news release, titled "NACDL Trial Penalty Clemency Project Submits Second Set of Petitions to White House," reports effectively on work by the National Association of Criminal Defense Lawyers to shine light on, and seek needed remedies for, criminal defendants unfairly subject to the "trial penalty."  Here are some details on NACDL's latest efforts and prior work:

As of this week, NACDL’s Trial Penalty Clemency Project submitted four more federal clemency petitions to the Office of the Pardon Attorney and the White House, adding to the first set of six petitions submitted on October 2, 2020.  Of the four petitions, three concern individuals serving life or lengthy sentences for non-violent drug charges, and one concerns an individual serving over 35 years for a non-violent white-collar conviction.

As of late, increased attention to the criminal legal system has led to public outrage and calls to reform myriad facets of the American legal system.  The trial penalty, though, which refers to coercive prosecutorial practices that induce accused persons to waive fundamental rights under threat of a vastly increased sentence when fundamental rights are asserted, persists in undermining the American criminal legal system.  The most obvious examples of its impact are seen in those who assert their rights and receive a geometrically enhanced sentence.  Though reform is badly needed to end the trial penalty, the only immediate remedy for those individuals living this injustice is executive clemency.  NACDL’s Trial Penalty Clemency Project aims to assist those individuals by pairing applicants with volunteer attorneys who will assist them in preparing a clemency petition.

“The trial penalty makes a mockery of the Constitution’s Sixth Amendment right to trial and is a large and ever-growing cancer on the American criminal legal system,” said NACDL President Chris Adams.  “Every time a defendant opts to hold the government to its burden and go to trial, and receives a substantially more draconian sentence than was previously offered in a plea deal, the American legal system moves further away from justice.  NACDL’s Trial Penalty Clemency Project is a vital step in beginning to remedy this great injustice.”

Thus far, through affiliates, members, and the assistance of organizations in this space like the CAN-DO Foundation, the Last Prisoner Project, and Life For Pot, the Project has identified, reviewed, and assigned more than 20 cases with attorneys.  The attorneys are crafting petitions or supplements to existing petitions focusing on the impact of the trial penalty. In addition to filing the petitions with the Office of the Pardon Attorney, the Project brought the four cases described below, in addition to six previous cases, to the attention of the White House panel on clemency.  NACDL’s Trial Penalty Clemency Project is a component of NACDL’s Return to Freedom Project...

In 2018, NACDL released a groundbreaking report – The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. Information and a PDF of NACDL’s 2018 Trial Penalty report, as well as video of the entire 90-minute launch event at the National Press Club in Washington, DC, and other trial penalty-related videos and materials are available at www.nacdl.org/trialpenaltyreport.

In 2019, The Federal Sentencing Reporter, published by University of California Press, released a double issue covering April and June 2019, edited by NACDL Executive Director Norman L. Reimer and NACDL President-Elect Martín Antonio Sabelli, entitled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."

And in 2020, NACDL and FAMM released a documentary on the trial penalty, The Vanishing Trial. The trailer for that film is available here.

November 20, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

SCOTUS grants cert on two new Fourth Amendment cases

The US Supreme Court released this brief order list this afternoon granting certiorari in these two new cases with these questions presented:

19-1414 UNITED STATES V. COOLEY, JOSHUA J.

Cert petition question presented: "Whether the lower courts erred in suppressing evidence on the theory that a police officer of an Indian tribe lacked authority to temporarily detain and search respondent, a non-Indian, on a public right-of-way within a reservation based on a potential violation of state or federal law."

20-157 CANIGLIA, EDWARD A. V. STROM, ROBERT F., ET AL.

Cert petition question presented: "Whether the 'community caretaking' exception to the Fourth Amendment’s warrant requirement extends to the home."

November 20, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Is Sally Yates on track to be the next US Attorney General?

E204c9e0-0c25-11eb-a040-3d8028d863aa_1200_630The question in the title of this post is prompted by this new Reuters piece headlined "Biden's possible attorney general pick has moderate track record: progressive critics."  Here are excerpts:

President-elect Joe Biden has pledged to end the federal death penalty and eliminate mandatory minimum sentences, but some progressives say a potential pick for attorney general to carry out those reforms may not be the one to enact bold changes.

Sally Yates, 60, is a leading candidate for the job, according to sources.  The Atlanta native is perhaps best known for being fired from her position as acting attorney general by Republican President Donald Trump in his first month in office when she refused to enforce his first attempt at banning travelers from Muslim-majority nations.

Her history at the Department of Justice (DOJ) — where Democratic President Barack Obama appointed her as deputy attorney general in 2015, and before that as Atlanta’s top federal prosecutor for about five years — make the adviser to the Biden transition team a safe pick for a role subject to confirmation by the U.S. Senate, which may still be under Republican control next year.

Asked for comment, a Yates spokeswoman provided a lengthy list of opinion articles, testimony and other records she said demonstrate Yates’ strong commitment to criminal justice reform.  A Biden transition team spokesman did not respond to a request for comment.

Yates has expressed a measured approach on some criminal justice reforms, including previously voicing some support for the mandatory minimum sentences Biden wants to end — a position some progressives worry may not go far enough at a time of reckoning for the criminal justice system.  “She has done courageous things, but she is a career prosecutor,” said Rachel Barkow, a New York University law professor who previously served on the U.S. Sentencing Commission, which sets federal sentencing guidelines.  “The question will be, if Sally Yates comes in a second time, does she do a better job reading the moment or is she still coming with that DOJ insider lens?”...

Yates, during her 2015 confirmation hearing for deputy attorney general, called mandatory minimum sentences “an important tool for prosecutors,” which could nevertheless be used more judiciously due to the “fiscal reality” facing U.S. prisons.  While she was U.S. attorney in Atlanta, her office also sought the death penalty in some cases, and she testified on the Justice Department’s behalf to urge the U.S. Sentencing Commission to narrowly limit who could qualify to apply retroactively for a drug sentence reduction.

She was also involved in a controversy surrounding a 2014 clemency project, after Pardon Attorney Deborah Leff resigned in protest due to a backlog of 1,000 recommendations sitting in Yates’ office, 100 of which were urging clemency be granted.  In her January 2016 resignation letter, Leff said Yates had blocked her access to the White House, including on cases where Yates had reversed Leff’s clemency determinations.  Yates’ defenders say she was passionate about clemency, and personally reviewed every petition herself.

Some former colleagues say Yates deserves credit for important work that began during the Obama administration, much of which has since largely been undone during Trump’s term.  Yates spearheaded efforts to scale back the federal government’s use of private prisons, revamped the Bureau of Prisons’ education program to better prepare inmates for release and urged limits on solitary confinement.  She also persuaded Obama-era Attorney General Eric Holder to expand on his new policy scaling back the use of mandatory minimums and later publicly rebuked Trump’s first attorney general, Jeff Sessions, after he reversed these policies in 2017.

“Somebody like Sally is very attuned to what has been happening in the country after George Floyd’s murder,” said Vanita Gupta, who headed the DOJ’s civil rights division during Yates’ tenure and now heads the Leadership Conference on Civil & Human rights.  “She is very personally committed to civil rights and criminal justice reform, and I would fully expect that commitment would actually only deepen.”

I sense that Yates' long history as a federal prosecutor and her moderate approach to many reform issues leads some progressives to be rooting against her for the Attorney General position in a Biden Administration.  But I am inclined to view Yates' past criminal justice record somewhat like I view VP-elect Harris' record: I sense they have always been highly attuned to, and quite effective within, the felt legal and political needs of the time, which would suggest at least some ability to step up to the needs of our current criminal-justice-reform-focused times.

I am eager to note here that Sally Yates has recently been actively involved in the Council of Criminal Justice, serving as Co-Chair of the CCJ Board of Trustees and as a member of its federal priorities task force.  As highlighted in this post from May, I was especially impressed with the agenda for reform that the CCJ federal priorities task force produced.   This impressive report, titled "Next Steps: An Agenda for Federal Action on Safety and Justice," included 15 thoughtful recommendations, and I would be thrilled to have a new Attorney General committed to making these particular proposals a reality ASAP:

If the next Attorney General would be able to get even half of these priorities completed in the coming years, that would be quite a set of accomplishments.

November 20, 2020 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (2)

After SCOTUS lifts stay by 6-3 vote, federal government completes it eighth execution of 2020

As reported here via SCOTUSblog, the "Supreme Court on Thursday night allowed the government to proceed with the execution of Orlando Hall, who became the eighth federal inmate to be put to death since the Trump administration resumed federal executions in July."  Here is more:

Hall was sentenced to death for his role in the kidnapping, rape and murder of 16-year-old Lisa René in 1994.  In a one-sentence order, the Supreme Court lifted a district judge’s last-minute injunction that had temporarily blocked Hall’s execution.  Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented and would have left the injunction in place.

The court also rejected three separate emergency requests filed over the past two days in which Hall asked the justices to postpone his execution.  There were no noted dissents to the three brief orders rejecting those requests.  Shortly after the court’s orders, Hall was put to death at the federal prison in Terre Haute, Indiana.  He died at 11:47 p.m., according to local news reports.

Hall’s case reached the Supreme Court after a flurry of litigation in the lower courts over the execution, which the government had scheduled for Thursday at 6 p.m.  On Thursday afternoon, Judge Tanya Chutkan of the U.S. District Court for the District of Columbia issued an injunction blocking the execution.  The injunction was based on an earlier finding from Chutkan that the government’s method of execution violates the Federal Food, Drug, and Cosmetic Act because the government uses a lethal dose of sodium pentobarbital without obtaining a prescription for that drug.

The government immediately appealed Chutkan’s injunction.  The government argued that the prescription requirement in the FDCA does not apply to lethal-injection drugs.  It also argued that Hall was not entitled to an injunction based solely on the lack of a prescription.

The Supreme Court sided with the government, issuing an order just before 11 p.m. that lifted Chutkan’s injunction. The majority did not explain its reasoning, and none of the three justices who noted their dissent wrote an opinion explaining why.  At the same time, the court denied Hall’s three emergency applications, each of which presented separate legal arguments for a postponement of his execution....

Hall’s case was the first case involving a pending execution in which Justice Amy Coney Barrett participated since she joined the bench in October.  Barrett, a devout Catholic, co-wrote a 1998 article on the moral and legal dilemma that Catholic judges face in capital cases due to the church’s opposition to capital punishment.  That article raised questions in her confirmation hearings about possible recusals from such cases.  Barrett cited her full participation in capital cases as a law clerk for Justice Antonin Scalia and as a judge on the U.S. Court of Appeals for the 7th Circuit.

A few prior recent related posts:

November 20, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, November 19, 2020

"How Governors Can Use Categorical Clemency as a Corrective Tool: Lessons from the States"

The title of this post is the title of this interesting new report from the Urban Institue.  Here is its executive summary:

Governors in most states have executive clemency authority that allows them to change the terms of someone’s criminal justice system involvement, including by issuing pardons or by granting commutations to adjust the sentences of people in prison.  Though many clemency deliberations are independent case-by-case assessments, in some cases, governors can also extend clemency eligibility categorically to groups of people in prison to mitigate structural issues or accomplish larger reform goals.  In this report, we provide a high-level overview of state executive categorical clemency and offer examples of how state governors have used this strategy as a corrective tool to address problems in the criminal justice system.

November 19, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"'Some Mother's Child Has Gone Astray': Neuroscientific Approaches to a Therapeutic Jurisprudence Model of Juvenile Sentencing"

the title of this post is the title of this new paper authored by Michael Perlin and Alison Lynch now available via SSRN. Here is its abstract:

There is a robust body of evidence that tells us that the juvenile brain is not fully developed by age 18, and this evidence should and does raise important questions about the sentencing of juveniles in criminal cases.  This evidence, though, must be considered in the context of public opinion (about certain juvenile crimes that have been subject to saturation publicity) in the context of judges’ decisionmaking (where such judges do not want to be perceived as “soft on crime”).  The conflict between what we now know and what (false) “ordinary common sense” demands (in the way of enhanced punishments) flies squarely in the face of therapeutic jurisprudence precepts.  If the legal process is to seek to maximize psychological well-being and if it is to coincide with an “ethic of care,” then, it is necessary for those involved in the criminal justice system to speak publicly about this topic, and to “call out” those — be they elected politicians, editorial writers and commentators in the conservative media, or judges — who urge retributive and punitive sentences for adolescents and children.

In this paper, we will first give a brief overview about the current neuroscientific findings about juvenile brain development in the context of criminal behavior, and then discuss the current sentencing standards and regulations that are in place.  Then, we will discuss the impact of therapeutic jurisprudence as a framework for advocating for juvenile clients, in order to maximize and preserve their psychological well-being and to mitigate trauma.  Finally, we will offer recommendations for how experts can work with attorneys who are presenting sentencing arguments, in order to make the most comprehensive, scientifically persuasive case for leniency in juvenile sentencing.

November 19, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, November 18, 2020

Pyrrhic victory for federal death row inmates in DC Circuit lethal injection litigation

As reported in this Courthouse Legal News piece, headlined "Federal Executions on Track but DC Circuit Flags Legal Errors," two federal defendants scheduled to be executed in coming days and weeks got some cold comfort from the DC Circuit today:

Though it declined to block two federal executions, the first just over 24 hours away, the D.C. Circuit was critical Wednesday that seven lethal injections have been carried out in the last few months without medical prescriptions.

This year alone, President Donald Trump’s Justice Department has carried out more federal executions than the combined total of his predecessors from the last 57 years. That record has sat undisturbed so far against a litany of challenges to the new lethal-injection protocol unveiled last year by Attorney General William Barr after a 17-year hiatus on the death penalty at the federal level.

Inmates suffered their latest defeat Wednesday morning when the D.C. Circuit declined to stay the executions of Orlando Hall set for Thursday and Brandon Bernard on Dec. 10.

In a rare rebuke from the appeals court as to the government’s death-penalty practices, however, the court revived the inmates’ claims that the government must obtain a prescription before using the drug pentobarbital to kill prisoners....

[In] a September ruling ... U.S. District Judge Tanya S. Chutkan found that the Trump administration violated the law by carrying out death sentences with unprescribed pentobarbital, but that Supreme Court decisions foreclosed her from blocking the upcoming executions.

The Supreme Court cleared the way for the first federal execution to proceed this year, overturning a temporary ban that Chutkan had ordered. In her latest ruling, Chutkan concluded that “most of the evidence” brought by attorneys to show flash pulmonary edema grips an inmate while they are still awake was already reviewed by the justices and did not reach the high bar to grant injunctive relief.

But the 2-1 appeals panel ruled Wednesday that Chutkan “should have ordered the 2019 protocol to be set aside to the extent that it permits the use of unprescribed pentobarbital in a manner that violates the FDCA.” Though the court revived the inmates’ Eighth Amendment challenge, it affirmed “denial of a permanent injunction to remedy the FDCA violation.”

Jonathan S. Meltzer, an attorney for Hall, said they would ask the Supreme Court this afternoon to issue a stay. The Justice Department did not respond to whether it plans to bring its own challenge to the Wednesday ruling. Hall has requested to go to the execution chamber at 6 p.m. for his scheduled death on Thursday. He was convicted for the kidnapping, rape and murder of a 16-year-old girl in 1994.

Bernard, set to be executed next month, was sentenced to death for the killing of two youth ministers at Food Hood. One of his five co-defendants, Christopher Vialva, was the most recent federal prisoner to die by lethal injection, executed by the Trump administration in September.

Lisa Montgomery, bringing a separate lawsuit backed by the ACLU, is scheduled to die on Dec. 8 — two days before Bernard — and would be the first woman executed by the U.S. government since 1953.

The full split panel ruling from the D.C. Circuit is available at this link.

November 18, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Seventh Circuit panel reverses below-guideline 16-year prison sentence as substantively unreasonable in terrorism case

Regular readers know I do not blog much about federal sentence reasonableness review these days because there is usually not that much worth blogging about.  Out of many thousands of appeals brought by federal defendants each year, typically only a few hundred are successful, and these are usually involve miscalculation of the guideline range.  The government rarely appeals, though it does often have a better success rate in the few dozen appeals it brings each year. 

In one particular (and rare) categories of cases, namely terrorism cases, the government has a particularly notable history of appellate success when arguing a sentence in unreasonably lenient (see posts linked below for some historical examples).  A helpful reader made sure I did not miss a new Seventh Circuit panel ruling handed down yesterday in this category: US v. Daoud, No. 19-2174 (7th Cir. Nov. 17, 2020) (available here).  Federal sentencing fans will want to review this 26-page opinion in detail, but the start and few passages from the body of the opinion provides the basics:

Adel Daoud pressed the button to detonate a bomb that would have killed hundreds of innocent people in the name of Islam.  Fortunately, the bomb was fake, and the FBI arrested him on the spot.  Two months later, while in pretrial custody, Daoud solicited the murder of the FBI agent who supplied the fake bomb.  Two and a half years later, while awaiting trial on the first two charges, Daoud tried to stab another inmate to death using makeshift weapons after the inmate drew a picture of the Prophet Muhammad.  Daoud eventually entered an Alford plea, and the cases were consolidated for sentencing.  The district court sentenced Daoud to a combined total of 16 years’ imprisonment for the crimes.  The government appeals that sentence on the ground that it was substantively unreasonable.  We agree.  We vacate the sentence and remand for resentencing....

[W]hile the district court paid lip service to the seriousness of the offenses, it undercut its own statements by unreasonably downplaying Daoud’s role in each offense.  District courts have broad discretion as to how to weigh the § 3553(a) factors, but a district court’s sentence must reflect a reasonable view of the facts and a reasonable weighing of the § 3553(a) factors....  Here, the district court sterilized Daoud’s offense conduct in ways that cannot be reconciled with the objective facts of these violent offenses.  That unreasonable view of the facts prevented the district court from properly weighing the seriousness of the offenses when selecting its sentence....

In the district court’s telling, Daoud’s age, mental health, and general awkwardness and impressionability converged to render him uniquely susceptible to criminal influence. A sentencing court is well within its rights to consider a defendant’s mental limitations in mitigation.... But that factor only goes so far in this case.  Daoud committed the attempted bombing around his 19th birthday.  He was 19 when he solicited the FBI agent’s murder and 21 when he tried to stab a fellow inmate to death.  In other words, he was college aged at all relevant times.  He may have been immature, but, as the court recognized, he was old enough to know what he was doing.

Prior posts on similar reasonableness ruling:

November 18, 2020 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

County in Washington State approves new diversion program focused on community restoration

This local article, headlined "King County Council OKs plan to let community groups decide some punishment -- not judges," reports on a notable new diversion program just approved in Seattle's county.  Here are the interesting details:

The King County Council on Tuesday voted Tuesday to approve funding for a groundbreaking criminal justice diversion program that will let community groups decide what punishment -- if any -- should be handed out for a select group of accused felons.

The county council voted 9-0 to approve a program known as Community Restorative Pathways, adding funding for it in the county's $12.59 million biennium budget. Instead of facing a judge, juveniles and adults accused of a first-time, non-violent felony offense will be offered an alternative where a non-profit community panel will decide how the accused person can be held accountable for their crime.

Suspects accused of violent crimes and crimes against persons would not be eligible for the diversion program, and if the offender fails to follow through with the community groups recommended punishment or accountability, the original criminal charges could still be pursued in court.

“We can send that person instead (of jail) to a community accountability group, who will define what they think accountability means,” said King County Prosecutor Dan Satterberg. It’s a new concept for King County Superior Courts and the King County Prosecutor’s Office, which has 7,000 cases waiting for disposition, double the amount in a normal year. Accountability would not include jail or even a conviction, said Satterberg, who declined to define what accountability means.

“That’s up to the community groups,” he said, adding that it would target 800 juveniles and 1,000 adults to start. “These are low-level felonies, property offenses, no domestic violence, no sexual assault cases (and) decisions you would make if you were in my shoes.”

The program is slated to begin in mid-2021 and be implemented no later than the start of 2022. The budget for the program is set at $6.2 million, money that would have gone to the King County Sheriff’s Office.

King County Executive Dow Constantine proposed the idea along with Satterberg. Constantine has pledged to phase out the King County Jail after the pandemic is over, what he described as a cost-cutting move. “Locking people up is very costly and it’s not affirmative for people's lives,” King County Councilmember and Budget Chairperson Jeanne Kohl-Welles told KOMO News just before the budget vote. “But we also have to make sure to protect the public, so this is hard, it’s not going to be easy."

November 18, 2020 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, November 17, 2020

"The Rule of Judicial Political Affiliation in Criminal Sentencing Outcomes"

The title of this post is the title of this new paper now available via SSRN authred by Wendy Calaway, Jennifer Kinsley and Taylor Wadian.  Here is its abstract:

Legislative efforts to bring consistency to criminal sentencing outcomes has been much discussed in academic literature and Congressional hearings alike.  Despite these efforts disparate sentencing outcomes persist.  Researchers have studied many variables seeking to understand these disparities but have been unable to form a consensus around the cause. Perhaps because of the lack of a firm understanding of the issue among researchers, legislative intervention at both the state and federal level has largely failed to address the issue of judicial characteristics that may drive sentencing disparities.  As a result, absent from the conversation on criminal sentencing reform is empirical and anecdotal evidence about how judges make determinations within the range of outcomes specified by the legislature.  New data on federal sentencing outcomes collected by Harvard researchers, however, finds a direct connection between the political party of the President who appointed the federal judge and the length of a defendant’s sentence.  As the Harvard study reports, federal judges appointed by Republican presidents sentence defendants on average to three more months in prison than federal judges appointed by Democratic presidents.  Republican-appointed judges in the federal system also sentence black defendants more harshly than Democratic-appointed judges.

As will be discussed in this Article, the central premise of the Harvard political sentencing study — that judicial political affiliation influences sentencing outcomes, even those that are highly guided by legislative criteria — also holds true on the state level with respect to elected, rather than appointed, judges.  As we report, empirical evidence from the state of Ohio demonstrates that elected Republican judges sentence defendants to lengthier terms of incarceration than elected Democratic judges by a statistically significant margin.  This evidence suggests that, rather than being entirely guided by specified statutory criteria, judges bring preexisting sentencing ideologies to the bench and make decisions with a range of sentencing outcomes based at least in part on their individual philosophies and beliefs.  Based on these findings, we argue that in order to address the issue of sentencing disparities, reform efforts should take action to specifically address the behavior and motivation of individual judges.

November 17, 2020 in Data on sentencing, Detailed sentencing data, Who Sentences | Permalink | Comments (0)

Notable new Gallup poll numbers on perceptions of the US criminal justice system

Bnlwz2mfyu2twk35wjqfzwThis new Gallup release, headlined "Fewer Americans Call for Tougher Criminal Justice System," reports on new polling number concerning pubic views on the US criminal justice system.  Here are the details:

Americans' belief that the U.S. criminal justice system is "not tough enough" on crime is now half of what it was in Gallup's initial reading of 83% in 1992.  The latest measure, at 41%, is the lowest on record and down slightly from the previous reading in 2016 -- although it remains the view of the plurality.  At the same time, there has been a seven-percentage-point uptick among those who say the system is "too tough" (21%) and no change among those who think it is "about right" (35%).

Americans' perceptions of whether the criminal justice system in the U.S. is too tough, not tough enough or about right in its handling of crime since 1992.  The percentage saying it is not tough enough has fallen from 83% in 1992 to 41% now.  At the same time, the percentage saying it is about right has risen from 12% in 1992 to the current 35%, and those who think it is too tough has increased from 2% in 1992 to 21% now.

Across the five times Gallup has asked this question since 1992, when public perceptions of national and local crime rates were at or near their highest points, there has been a steady decrease in the percentage saying the system is not tough enough and increases in the percentages saying it is too tough or about right.  These changes coincide with declines in crime rates in the U.S.  The latest reading is from Gallup's annual Crime poll, conducted Sept. 30-Oct. 15, 2020.

Americans' faith in the U.S. criminal justice system remains low according to Gallup's 2020 Confidence in Institutions poll conducted earlier this year, and confidence in one element of that system -- the police -- fell to a record-low level in the same poll.  This decline in confidence in the police followed several high-profile deaths of Black Americans at the hands of police officers, including George Floyd, Breonna Taylor and Rayshard Brooks.

Views of the criminal justice system vary by party identification and racial background.  A 58% majority of Republicans and Republican-leaning independents say the criminal justice system is not tough enough.  However, this view is shared by less than half as many Democrats and Democratic-leaning independents (25%), while 37% think the system is about right and 35% too tough.

More White Americans than non-White Americans say the justice system is not tough enough on crime (45% vs. 31%, respectively).  The plurality of non-White adults, 40%, think it is about right, while 26% believe it is too tough.

Americans across these four party and racial subgroups have become significantly less likely to say the criminal justice system is not tough enough, but it has declined the most among Democrats, falling from 62% in 2000 to 25% today.  Over the same period, Democrats' view that the system is too tough has grown from 6% to 35%.

Given two options for approaches to lowering the U.S. crime rate, more Americans prefer putting money and effort into addressing social and economic problems such as drug addiction, homelessness and mental health (63%) rather than putting money and effort into strengthening law enforcement (34%).

November 17, 2020 in Elections and sentencing issues in political debates, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Monday, November 16, 2020

"Presidential Pardons and the Problem of Impunity"

The title of this post is the title of this quite timely article authored by Frank Bowman III now available via SSRN. Here is its abstract:

This Article considers the reach of the President’s pardon power and its potential employment as one means of creating legal impunity for a President and his personal and political associates.  It addresses, in particular, the possibility that a President might issue self-interested pardons to himself, family members, or political or business associates.  The Article reviews the constitutional origins of the federal pardon power, and the law and practice of its use since the Founding era, and concludes:

A President cannot constitutionally pardon himself, though the point is untested.  In theory, a President could resign, or under the Twenty-fifth Amendment withdraw temporarily from the office, transform the Vice President into the President or Acting President, and secure a pardon from the his former subordinate.  But that seems improbable.

A President can pardon anyone but himself (both humans and corporations), and those pardons, once issued, are almost certainly unchallengeable and irrevocable.  A presidential pardon can cover any (and perhaps all) federal crimes the beneficiary has ever committed, so long as such crimes occurred and were completed prior to the issuance of the pardon. A president cannot pardon crimes that have not yet been committed.  Consequently, a pardon issued corruptly might itself constitute a crime that could not be pardoned.

The pardon power does not extend to state crimes or to any civil or administrative action brought by federal or state authorities.  A presidential pardon cannot block congressional investigations.  Finally, because a pardon effectively erases the Fifth Amendment privilege as to offenses covered by the pardon, it might make it easier for criminal and civil investigative authorities and Congress to compel testimony from the person pardoned.

Therefore, presidential pardons could inconvenience, but could not prevent, thorough investigations of the private and public actions of a former President or his associates.  The Article concludes by recommending a thorough, but judicious, use of available investigative avenues to inquire into well-founded allegations of wrongful behavior by former presidents and their personal and political associates.

November 16, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Justice Sotomayor dissents at length from SCOTUS refusal to reinstate order for Texas prison to implement COVID protections

As reported in this SCOTUSblog post, the "Supreme Court on Monday afternoon rejected a request from two inmates at high risk for complications from COVID-19 to reinstate an order by a federal district court that would require Texas prison officials to take basic safety precautions to combat the virus."  Justice Sotomayor issued a lengthy dissent from the ruling, which was joined by Justice Kagan, and here are parts from the start and end of this 11-page opinion:

I write again about the Wallace Pack Unit (Pack Unit), a geriatric prison in southeast Texas that has been ravaged by COVID–19.  See Valentine v. Collier, 590 U.S. ___ (2020) (statement respecting denial of application to vacate stay).  The Pack Unit is a “‘tinderbox’” for COVID–19, not only because it is a dormitory-style facility, “making social distancing in the living quarters impossible,” but also because the vast majority of its inmates are at least 65 years old, and many suffer from chronic health conditions and disabilities....

In July, the District Court held a weeks-long trial that revealed rampant failures by the prison to protect its inmates from COVID–19.  In September, the District Court entered a permanent injunction requiring prison officials to implement basic safety procedures.  The Fifth Circuit, however, stayed the injunction pending appeal.  Now, two inmates, Laddy Valentine and Richard King, ask this Court to vacate the stay.  Because they have met their burden to justify such relief, I would grant the application....

The people incarcerated in the Pack Unit are some of our most vulnerable citizens.  They face severe risks of serious illness and death from COVID–19, but are unable to take even the most basic precautions against the virus on their own. If the prison fails to enforce social distancing and mask wearing, perform regular testing, and take other essential steps, the inmates can do nothing but wait for the virus to take its toll.  Twenty lives have been lost already. I fear the stay will lead to further, needless suffering.

November 16, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Federal judge orders Missouri to improve its parole process

As reported in this local piece, headlined "Judge orders revamp of Missouri’s ‘unconstitutional’ parole system," a notable new federal district court ruling last week "spurred by a class-action lawsuit in 2017 by state prison inmates, requires the state’s Department of Corrections to implement over two dozen reforms related to the agency’s unconstitutional handling of parole revocation proceedings."  Here is more:

The lawsuit alleged that the current practices resulted in the unlawful reincarceration of thousands of people each year. “These reforms should result in fewer people thrown back behind bars, and slow the churn at prison reception centers,” said Amy Breihan, co-director of the MacArthur Justice Center.

The 55-page order from U.S. District Judge Stephen R. Bough found the Department of Corrections has been intentionally failing to provide state-funded counsel to eligible parolees. The court ordered the department to ensure all eligible parolees have an attorney appointed for any proceeding to move forward.  The judge also ordered several other changes. While the agency previously would not disclose evidence against an individual until the hearing, officials are now required to provide evidence at least five days prior to a revocation hearing.

The court also wants the state to move faster on revocation hearings that have previously resulted in parolees waiting hundreds of days in detention. “Having reviewed the evidence presented at the hearing and in the parties’ briefing on the matter, the court finds constitutional deficiencies in the current parole revocation process remain and issues this order to remedy such due process violations,” Bough wrote.

November 16, 2020 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, November 15, 2020

Members of Congress urge Attorney General Barr "to suspend all federal executions"

There have already been seven federal executions in 2020, and there are three more federal executions scheduled in the next month: as this BOP page details, one execution is scheduled for this coming Thursday, and two more are scheduled for the second week of December.  But a few members of Congress, as detalled in this press release, have written to Attorney General William Barr to urge him "to suspend all federal executions so the incoming Biden-Harris Administration can evaluate and determine the future use of the death penalty by the federal government."

The full short letter is available at this link, and here are its concluding sentiments:

President-Elect Biden’s plan for strengthening America’s commitment to justice includes the elimination of the federal death penalty and Vice-President-Elect Harris is an original cosponsor of legislation we have introduced to eliminate the federal death penalty. A record number of Americans voted in favor of President-Elect Biden and Vice-President Elect Harris and they deserve an opportunity to implement their policy agenda without the Trump Administration rushing to take preemptive and irreversible steps.

While you will remain in office for a few more weeks, going forward with executions in the weeks before the new administration takes office would be a grave injustice. 

November 15, 2020 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

"The Curriculum of the Carceral State"

The title of this post is the title of this recently published essay by Alice Ristroph.  Here is its abstract:

This Essay scrutinizes the canons of substantive criminal law, with a particular focus on the curricular canon.  By curricular canon, I mean the conceptual model used to teach the subject of criminal law, including the cases, narratives, and ideas that are presented to students.  Since the middle of the twentieth century, American law schools have offered (and often required) a course in criminal law in which homicide is the paradigm crime and legality is a core organizing principle.  The curricular canon depicts criminal law as a necessary and race-neutral response to grave injuries, and it also depicts criminal law as capable of self-restraint through various internal limiting principles. 

This model does not correspond closely to actual legal practices, and it never did; it was designed to model what criminal law could become.  Though this curricular model was developed by men who wanted to improve and constrain the criminal law, instead it probably contributed to the vast expansion of criminal interventions in the second half of the twentieth century.  The Essay reveals the pro-carceral implications of the prevailing canon, and it offers the outline of a different model that could alter American attitudes toward criminal law.  

I highly recommend everything penned by Alice Ristroph, and I am especially excited to see her turn her attention to the gaps between "our curricular model and our present criminal law reality" and to how "American law schools, through the required course on substantive criminal law, have contributed affirmatively to the collection of phenomena commonly labeled mass incarceration."  And reading this great piece reminded me of this very short commentary I wrote in the very first issue of the Ohio State Journal of Criminal Law way back in 2003 to flag my concerns that "failing to discuss the modem dynamics of criminal law doctrine and practice ... [results in] a substantive criminal law course that is often archaic, incomplete and perhaps unjustifiable."  My point back then was that modern criminal justice developments, particularly the drug war, plea realities and sentencing reforms, made the Model Penal Code outdated as a fundamental teaching text.  As I put it then:

The original MPC retains important historical value as a compendium of post-war scholarly thinking about criminal law, and its impact as a practical reform project remains profound. However, because the fundamental issues and concerns of criminal law doctrine and practice have shifted so dramatically in the last 40 years, the original MPC's continued use as a criminal law textbook operates, in my view, as a considerable disservice to criminal law academics and students, and ultimately to the entire field of criminal justice....

[T]he front-line realities of modem criminal law doctrine and practice have become quite grim and messy, and yet study of the original MPC can suggest that criminal law doctrine and practice is quite enlightened and orderly.  The MPC — and our teaching of it — trumpets the foundational concepts of actus reus and mens rea; yet the act requirement is often functionally eclipsed in a world in which conspiracy and possession offenses are staples, and the import of mental states is often functionally eclipsed in a world in which most sentencing factors are strict liability elements.  The MPC — or perhaps more particularly our teaching of it — suggests that homicides and other serious offenses are the central concern of the criminal justice system; yet modem criminal dockets are clogged with 60 times more felony drug and property cases than homicide cases. The MPC — and especially our usual methods for teaching it — suggests that many cases raise legal and factual claims and defenses that are resolved at trials where burdens of proof and precise offense elements are scrupulously considered; yet such matters very rarely occupy real criminal courts as judges spend the bulk of their time processing and sentencing the 19 out of every 20 defendants whose convictions are secured through guilty pleas.  And of course the MPC could not discuss — and I fear our teaching still fails to discuss — the enormous economic and personal costs and consequences of making mass incarceration a defining element of the modem American criminal justice system.

Gosh, I sure wish these musings of mine from this 2003 article felt more dated now, but Alice Ristroph's article effectively highlights how these problems have only gotten worse over time.

November 15, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Thursday, November 12, 2020

"Nondelegating Death"

The title of this post is the title of this notable new paper just posted to SSRN and authored by Alexandra Klein.  Here is its abstract:

Most states’ method-of-execution statutes afford broad discretion to executive agencies to create execution protocols.  Inmates have challenged this discretion, arguing that these statutes unconstitutionally delegate legislative power to executive agencies, violating the state’s non-delegation and separation of powers doctrines.  State courts routinely use the non-delegation doctrine, in contrast to the doctrine’s historic disfavor in federal courts.  Despite its uncertain status, the non-delegation doctrine is a useful analytical tool to examine decision-making in capital punishment.

This Article critically evaluates responsibility for administering capital punishment through the lens of non-delegation.  It analyzes state court decisions upholding broad legislative delegations to agencies and identifies common themes in this jurisprudence.  This Article positions legislative delegation in parallel with historic and modern execution practices that utilize responsibility shifting mechanisms to minimize participant responsibility in carrying out capital sentences and argues that legislative delegation serves a similar function of minimizing accountability in state-authorized killing.

The non-delegation doctrine provides useful perspectives on capital punishment because the doctrine emphasizes accountability, transparency, and perceptions of legitimacy, core themes that permeate historic and modern death penalty practices.  Creating execution protocols carries a high potential for arbitrary action due to limited procedural constraints, secrecy, and broad statutorily enacted discretion.  The decision to authorize capital punishment is a separate policy decision than the decision of how that punishment is carried out.  This Article frames a more robust non-delegation analysis for method-of-execution statutes, and argues that legislators determined to utilize the penalty should carry greater accountability for investigating and selecting methods of execution and should not be allowed to delegate these decisions.

November 12, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, November 11, 2020

Harvard Law Review SCOTUS issue covers the handful of notable criminal justice rulings from last Term

As hard-core law nerds know, the November issue of the Harvard Law Review is always devoted to the Supreme Court's prior Term work.  And as long-time readers know, in years past I have sometimes been disappointed when the November HLR SCOTUS issue does not give considerable attention to the Court's considerable criminal justice work. 

But, as noted in this post from last year, the 2019 HLR SCOTUS issue provided a sign of the modern criminal justice times with its Foreword and a lead commentary focused on criminal justice issues.  The November 2020 issue of the Harvard Law Review, which is available at this link, has its lead pieces understandably focused on other topics this year, but it remains heartening to see that seemingly all the noteworthy criminal cases of OT 2019 SCOTUS are covered in case comments in this issue: 

November 11, 2020 in Recommended reading, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, November 10, 2020

Should we want Congress to try to limit the President's pardon power?

The question in the title of this post is prompted by this notable new New York Times op-ed By Jack Goldsmith.  The full title of this piece highlight its main points: "Trump Loves to Use the Pardon Power. Is He Next? There is little to be done right now about the president’s self-serving ways, but Congress can limit future abuses." Here are excerpts:

President Trump has abused the pardon power like none of his predecessors. But we likely ain’t seen nothing yet. Now that he has lost the election, Mr. Trump will likely pardon himself, friends, family members and Trump business entities and employees for any crime they might have committed before or during his presidency.

Mr. Trump’s pardons to date, and those likely to come during a transition, reveal the problems with the supposed “absoluteness” of the pardon power — and should prompt legal reform to clarify limits on its abuse.

The pardon power that the Constitution confers on the president has just two stated limitations: A president cannot pardon for impeachment, and a presidential pardon can excuse or mitigate punishment only for federal offenses. There is little that can be done at this point to stave off a potential wave of pardons in the lame duck period, but the federal crime limitation means that Mr. Trump cannot stop state criminal investigations, including one in progress by the Manhattan district attorney into possible bank and insurance fraud by Mr. Trump and his companies.

But for federal crimes, the president can — with the stroke of a pen — erase a criminal conviction or criminal exposure for basically whomever he wants and for almost any reason. Unsurprisingly, Mr. Trump’s pardons and commutations have largely served his personal interests.

Notorious examples include the pardon for Joe Arpaio, the former Arizona sheriff who was convicted of defying a federal court order against profiling Hispanics; the pardons for the president’s political supporters Conrad Black and Pat Nolan; and the sentence commutation for Mr. Trump’s friend Roger Stone, who was convicted of obstruction of justice and related crimes and who many believe refused to implicate Mr. Trump in the hope of presidential relief from punishment.

Such self-serving pardons are not without precedent. Bill Clinton pardoned his half brother, a friend who refused to cooperate with the independent counsel investigating the president and two notorious fugitives from justice who were suspected of obtaining favorable consideration through an aggressive lobbying campaign and the support of politically influential allies. George H.W. Bush pardoned the former defense secretary Caspar Weinberger and several national security officials who had been convicted or indicted on a charge of perjury and obstruction of justice in connection with the Iran-contra scandal, in which Mr. Bush himself was suspected of criminal involvement....

Mr. Trump has proclaimed “the absolute right to pardon myself.” While neither the Constitution nor judicial precedents overtly speak to the issue, the Justice Department declared in 1974 a self-pardon would “seem” to be disallowed “under the fundamental rule that no one may be a judge in his own case.” Scholars are torn on the matter. The issue, which would arise if after Mr. Trump leaves office the new administration indicts him for a crime for which he pardoned himself, can be settled only by the Supreme Court.

There is little that can be done at this point to stave off a probable wave of opportunistic pardons.  But in light of what we already know about his pardon practices, Congress should enact two reforms to prevent future abuses.

First, it should check the most extreme abuses of the pardon power by expressly making it a crime for a president to issue a pardon as part of a bribe or as an inducement to obstruct justice.  Current law does not explicitly cover the president and should be reformed to leave no doubt. Second, Congress should declare that presidential self-pardons are invalid. Such a declaration would not resolve the constitutional question, but it could inform the answer when a court addresses it.

It might be that Mr. Trump’s pardons prove so abusive that a constitutional amendment to the pardon power will be warranted.  The challenge in that case will be to draft an amendment that checks presidential abuses without curtailing a vitally important mechanism, when properly deployed, for mercy and reconciliation. This is one of many ways that Mr. Trump’s abuses of presidential power will have long-lasting consequences for American justice.

Regular readers surely know that I am MUCH more troubled by the modern disuse of the pardon power than by its misuse.  And Goldsmith's first suggestion to make it a crime to "issue a pardon ... as an inducement to obstruct justice" might arguably make a crime of at least one act of clemency by many of our presidents in the last half-century.  Because the pardon power is already chilled enough, I think we should be trying to enhance and politically motivate its proper use, rather than worrying so much about its occasional misuse.

November 10, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

"Drug Policy Implications: Elections 2020"

Drug-Policy-Implications-Elections-2020_for-web-email2The title of this post is the title of this panel discussion taking place (on Zoom) next Monday afternoon, November 16, 2020 from 1-2:15 pm EST, sponsored by the Drug Enforcement and Policy Center.  Here is the basic description of the event and the planned speakers:

The 2020 election will have a monumental impact on how the United States addresses a broad range of policy issues, and drug enforcement and policy is no exception.  Numerous states approved medical or full marijuana legalization via ballot initiative, and voters in other states weighted in on drug-related criminal justice ballot initiatives.  At the federal level, marijuana reform has been gaining momentum and federal officials will undoubtedly take cues from the nationwide election results to determine the pace of reform on an array of drug enforcement and policy issues.

Join our panel of experts for a post-election discussion of the 2020 election results and what they are likely to mean for drug enforcement and policy at both the state and federal level.

Speakers

  • John Hudak, deputy director of the Center for Effective Public Management and a senior fellow in Governance Studies, Brookings Institution
  • Maritza Perez, director of the Office of National Affairs, Drug Policy Alliance
  • Tamar Todd, legal director, New Approach PAC

Moderated by:

Douglas A. Berman, executive director, Drug Enforcement and Policy Center

November 10, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Who Sentences | Permalink | Comments (0)

Noticing marijuana reform as criminal justice reform in Arizona after passage of Prop 207

Regular readers, particularly those who also keep up with my work over at Marijuana Law, Policy & Reform, know that I strongly believe that marijuana reform can and should always be a form of criminal justice reform.  This local article, headlined "Prop 207 could have huge impact on criminal justice reform in Arizona," details part of this story in one state one week after its big reform vote:

We are learning more about how Proposition 207 will impact our criminal justice system. The proposition legalizes recreational marijuana in Arizona and will become official when election results are certified in about a month.

Steven Scharboneau, Jr. is an attorney with the Rosenstein Law Group. “Arizona is one of the only states where a drug conviction for marijuana is a felony conviction, so it has life-lasting implications," Scharboneau said....

Adam Trenk is a Rose Law Group partner and director of the firm’s cannabis law department. “I think it’s really a big deal and a really big step for our state," Trenk said. Trenk said Prop 207 is really the first of its kind. “Historically we would, we being the state’s court systems, would seal records, but they wouldn’t necessarily expunge records," Trenk said.

Starting July 12, 2021, people previously convicted of select marijuana offenses can petition to have their records expunged. Essentially, this will give people a clean slate, which is what Scharboneau said his work is all about. “If we really work hard to make the laws more fair so people can actually have a fair chance at that second chance," Scharboneau said....

Rebecca Fealk, the Legislative Policy Coordinator there, said the group is working to get the word out about this measure and the impact it will have on criminal justice reform. “If somebody had a marijuana conviction, they were often denied food stamps, they were denied Pell Grants to be able go to college and do these things that allowed them to be part of our community," she said. “And so by having the opportunity to remove those, we are allowing people to be more successful and remove the harm the criminal justice system has done."

I believe that the Montana marijuana legalization ballot initiative also included some remedial criminal justice provisions, but that such reforms will require follow-up legislative action in other states.  Still, I sense there is continuing and growing momentum in marijuana reform quarters to ensure any and all reforms come with remedial provisions.  When I wrote an article on this topic a few years ago, "Leveraging Marijuana Reform to Enhance Expungement Practices," I was eager to see these intersecting issues get more attention, and I am now quite happy that they are.

UPDATE: I just saw this official press release from yesterday that details an immediate and tangible criminal justice impact from the passage of Prop 207 in Arizona. The release is titled "MCAO to Dismiss All Pending and Unfiled Charges of Possession of Marijuana," and here is the full text:

With the passage of Proposition 207, the Maricopa County Attorney’s Office (MCAO) will be dismissing all pending and unfiled charges of possession of marijuana and any associated paraphernalia charges that are before this office. Instead of continuing to spend resources on these cases, this office will begin implementing the will of the voters immediately.

We are instructing Deputy County Attorneys to file a motion to dismiss any charge covered by Proposition 207. If those charges make up the entirety of the charges of the case, the entire case will be dismissed. If there are other felony charges the case will remain pending, but we will file motions to dismiss the charges covered by Proposition 207. This will include all cases pending in Early Disposition Court, those currently in diversion or pending trial, and those set for sentencing or probation violation hearings.

Priority will be given to cases with court dates and those in custody. The office will also be filing motions to dismiss bench warrant cases where all the charges are covered by Proposition 207.

November 10, 2020 in Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Monday, November 09, 2020

"The Intersectionality of Age and Gender on the Bench: Are Younger Female Judges Harsher with Serious Crimes?"

The title of this post is the title of this new paper now available via SSRN authored by Morris Hoffman, Francis Shen, Vijeth Iyengar and Frank Krueger. Here is its abstract:

We analyzed sentencing data from sixteen years of criminal trials in the State of Colorado, consisting of almost 3,000 individual sentences, and discovered an interaction effect of harm, gender, and age not reported in any of the empirical or experimental literature.  Young female judges punished high harm crimes substantially more than their male and older female colleagues.  These results, if confirmed, could have significant strategic and tactical implications for practicing lawyers.  They may also inform policies surrounding judicial selection, education, training, and retirement.

November 9, 2020 in Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

After Tennessee Gov postpones last scheduled state execution of year, will all three scheduled federal 2020 executions still go forward?

As reported in this local article, "Tennessee Gov. Bill Lee has granted death row inmate Pervis Payne a temporary reprieve due to the COVID-19 pandemic."  Here is more:

Payne's execution was scheduled for Dec. 3, 2020. The reprieve lasts until April 9, 2021. Lee said in a written statement that the reprieve was issued "due to the challenges and disruptions caused by the COVID-19 pandemic," but did not elaborate further.

Payne, who is being held on death row in Riverbend Maximum Security Institution in Nashville, is convicted of the 1987 deaths of Millington woman Charisse Christopher, 28, and her 2-year-old daughter, Lacie.  Christopher’s 3-year-old son, Nicholas, survived multiple stab wounds in the brutal attack that took place in Christopher’s apartment.

“This additional time will also allow us to investigate Mr. Payne’s strong innocence claim, together with the Innocence Project," said Kelley Henry, Payne's attorney.  "We are grateful to the 150 faith, legal, legislative, and community groups in Memphis and across the state that support clemency for Mr. Payne. Together with Mr. Payne’s family, we will continue the fight to prove Mr. Payne’s innocence.”

The reprieve also allows time for the Tennessee Black Caucus of State Legislators to potentially pass legislation that would allow a defendant already sentenced to the death penalty and whose conviction is final to still bring a petition regarding a claim of intellectual disability. Although members of the caucus filed the bill Wednesday, it cannot be passed until January at the earliest, initially after Payne's scheduled execution.

Payne has maintained his innocence, and his attorneys have said that he is intellectually disabled, but have been unable to litigate the claim in Tennessee due to procedural reasons. In federal court, Payne’s attorneys have filed a petition asking the court to prevent his execution until hearing his claim that he is intellectually disabled....

During his 1988 trial, Payne said he discovered the gruesome crime scene after hearing calls for help through the open door of the apartment. He said he bent down to try to help, getting blood on his clothes and pulling at the knife still lodged in Christopher's throat. When a white police officer arrived, Payne, who is Black, said he panicked and ran, fearing he would be seen as the prime suspect.

The Shelby County District Attorney's Office has maintained that regardless of what DNA testing shows, the evidence to convict Payne of the crimes was overwhelming. An officer saw him leaving the scene of the crime drenched in blood, and Payne admitted to being there.  His baseball cap was found looped around the 2-year-old victim's arm, and his fingerprints were found inside the apartment.

Payne’s case has drawn the support of a large coalition of advocates, led by the Ben F. Jones Chapter of the National Bar Association, urging for the DNA testing.  The coalition includes the Tennessee Black Caucus of State Legislators, Memphis Chapter of the NAACP, the Memphis Bar Association, 100 Black Men of Memphis, National Council of Negro Women (Memphis Chapter), Stand for Children Tennessee, Memphis Interfaith Coalition for Action and Hope (MICAH) and several leaders in the Church of God in Christ (COGIC), of which Payne is a member.

It strikes me as quite notable and ultimately disturbing that, for a crime that took place 33 years ago(!), it seems that a global pandemic was needed to justify a short reprieve to provide time "to investigate Mr. Payne’s strong innocence claim."  Also, if Payne is actually intellectually disabled and thereby categorically ineligible for execution under the Eighth Amendment, it seems quite problematic to preclude him from properly litigating this constitutional issue fully for mere procedural reasons.

These case specifics aside, this Death Penalty Information Center page details that this planned Tennessee execution had been the last state execution scheduled for 2020.  So, due to lots COVID disruptions as well as other factors, it appears the total number of state executions in 2020 will be only seven individuals, marking the lowest yearly total of state executions in almost 40 years.  But, of course, the federal government really revved up its machinery of death in 2020, and there have already been seven federal executions in 2020.  Moreover, there are three more federal executions still scheduled for 2020: as this BOP page details, one execution is scheduled for next Thursday, and two more are scheduled for the second week of December.

Even if we did not have a consequential federal election this month, the federal defendants scheduled for execution in the coming weeks would surely be seeking a reprieve based on COVID concerns and perhaps on other grounds as well.  But, especially given that the Joe Biden campaign talked about seek to abolish the federal death penalty, if these condemned defendants can find a way to get their executions postponed until after January 20, 2021, they might benefit from a new Administration eager to now completely turn off the entire federal machinery of death.

November 9, 2020 in Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, November 08, 2020

So who are you rooting for to be the next US Attorney General?

I would be eager to hear from readers about who they would like to to see nominated by Joe Biden to be the next US Attorney General.  This Politico article, headlined "Meet the contenders for Biden’s Cabinet," discusses these purported front-runners:

With Tommy Tuberville’s defeat of Sen. Doug Jones (D-Ala.) on Tuesday, Jones will be unemployed come January and available to join Biden’s cabinet. Jones wouldn’t add to the Cabinet’s diversity, but the former U.S. attorney in Alabama has credibility when it comes to civil rights: He led the successful prosecutions of two members of the Ku Klux Klan involved in the 1963 bombing of the 16th Street Baptist Church in Birmingham, nearly 40 years later. Jones also happens to be a friend of Biden’s, dating back to his work on Biden’s first presidential campaign in 1988.

Jones, however, is likely to have competition for the Attorney General post, including from Democratic National Committee Chairman Tom Perez. Perez is “in the mix,” said Oscar Ramirez, a Democratic lobbyist who worked in the Obama administration and is active in Latino Democratic circles. Another person who’s tracked the early jockeying for attorney general said allies of Perez have floated his name.

Perez has Justice Department experience: He served as assistant attorney general for civil rights in President Barack Obama’s administration before Obama tapped him as Labor secretary. But he also faces a potential obstacle with Republicans likely to remain in control of the Senate: No Republicans voted to confirm him as Labor secretary in 2013, and it’s unlikely that his years leading the DNC have endeared him to the GOP.

Another name being mentioned is Sally Yates, a former deputy attorney general in the Obama administration, who became a progressive cause célèbre when President Donald Trump fired her in the early days of his presidency for refusing to defend his executive order barring entry to people several Muslim countries. California Attorney General Xavier Becerra is another potential candidate, Ramirez said, although he’s also been mentioned as a possible Homeland Security secretary. California Gov. Gavin Newsom might also tap Becerra, a former congressman, to fill the Senate seat that Vice President-elect Kamala Harris will vacate in January. (Becerra previously succeeded Harris as California attorney general in 2017 following Harris’ election to the Senate.)

This USA Today article, headlined "President-elect Joe Biden seeks diverse Cabinet to 'look like America' in leading federal departments," throws out these additional names:

Sen. Amy Klobuchar, D-Minn., a white member of the Senate Judiciary Committee where she has been harshly critical of Attorney General William Barr. She dropped her presidential campaign after the South Carolina primary and endorsed Biden....

Stacey Abrams, a Black former member of the Georgia Legislature who was among those considered as Biden’s running mate.  Abrams has been a fierce advocate for voting rights after running an unsuccessful but high-profile campaign for governor of Georgia, a state that was surprisingly competitive for Biden.

Sen. Cory Booker, D-N.J., a Black member of the Senate Judiciary Committee and presidential candidate, was a key sponsor of sweeping criminal justice legislation aimed at cutting mandatory minimum sentences and reducing the federal prison population.

Preet Bharara, who was born in India, a former chief federal prosecutor in Manhattan’s Southern District of New York, was fired by Trump after the then-newly elected president had asked him to remain on the job.  Bharara subsequently described a series of contacts with Trump before his firing that he said threatened the Justice Department’s independence from the White House.

I have always been a big Cory Booker fan, in part because he has long been a vocal advocate for a range of federal sentencing reforms.  So I think he is the candidate I am rooting for, though I sense he may be a relative long shot.  And I am genuinely eager to hear from readers about their thoughts about people on this list or anyone else who might become our nation's next "top law enforcement officer" for the United States.

November 8, 2020 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (8)

Pondering marijuana reform echoes after another historic election cycle

I briefly flagged here a few days ago the remarkable success of drug policy reform ballot initiatives in red and blue states nationwide.  And the success particularly of marijuana reform initatives in Arizona, Mississippi. Montana, New Jersey, and South Dakota has me thinking and writing a lot about what's next in this space over at Marijuana Law, Policy & Reform.  Specifically, I have been blogging reactions to marijuana's big election night via these new posts:

November 8, 2020 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)