Friday, November 01, 2024

Based on "the will of Congress," Third Circuit panel adheres to prior ruling limiting ground for compassionate release

I noted in this recent post that a Sixth Circuit panel heard oral argument this past week to consider its precedent limiting grounds for compassionate release in light of last year's US Sentencing Commission guideline amendment allowing some "changes in the law" to serve as basis for sentence reduction under § 3582(c)(1)(A)(i).  In that post, I explained that I thought this issue of statutory interpretation should be fairly straight forward for any and all true textualists.  Today, a panel ruling form the Third Circuit in US v. Rutherford, No. 23-1904 (3d Cir. Nov. 1, 2024) (available here), reinforces my view.  The panel in Rutherford rules against the defendant not based on any determinative text, but rather based on its belief as to "the will of Congress":

We agree with the government that subsection (b)(6) in the amended Policy Statement, as applied to the First Step Act’s modification of § 924(c), conflicts with the will of Congress and thus cannot be considered in determining a prisoner’s eligibility for compassionate release.  Congress explicitly made the First Step Act’s change to § 924(c) nonretroactive.  Pub. L. No. 115-391, § 403(b), 132 Stat. 5194, 5222.  And, in Andrews, we held that it would be inconsistent “with [the] pertinent provisions of [the First Step Act],” 28 U.S.C. § 994(a), to allow the amended version of § 924(c) to be considered in the compassionate release context because “Congress specifically decided that the changes to the § 924(c) mandatory minimums would not apply to people who had already been sentenced.” Andrews, 12 F.4th at 261.  

Besides the non-textual nature of divining the "will" of Congress to rule against a defendant, this holding conflates Congress's nonretoractivity decisions in the First Step Act with its decision, in the very same Act, to expand access to compassionate release and to keep in place the broad parameters of USSC authority to set terms for compassionate release.  There is nothing at all "inconsistent" with Congress saying not everyone should automatically retroactively benefit from a particular change in law and the USSC saying that judges can consider a change in law for a select few pursuing another legal remedy.  Put more clearly and directly, the USSC's policy statement regarding compassionate release does not formally or functionally make the First Step Act change to § 924(c) retroactive to anyone, and so it is in no way inconsistent with Congress's decision not to make that change retroactive to everyone. 

I could go on and on, but Rutherford ultimately stands as another telling example of the limits of textualism when a criminal defendant is the one stressing that the text Congress enacted is in his favor.  Even if text is clear (as I think it is here), courts are ready and able to say that the "will" of Congress is more important than the text.  (Notably, the Rutherford decision seem to think the "will" of Congress only makes it a problem for district courts to consider the § 924(c) change in law as part of a compassionate release motion; other changes in law would seemingly still be permissible considerations under the USSC's policy statement.) 

I assume a motion for an en banc review in Rutherford will be next up in the Third Circuit, and it will be interesting to see if any textualists elsewhere on that court might be troubled by the panel's reliance on congressional "will" over congressional text.  A Fifth Circuit panel has gone the other way, but I surmise there could still be full court consideration there.  And the Sixth Circuit, as well as a few other circuits, may also weigh in before SCOTUS may be inclined to take up this issue.  I suspect SCOTUS review is inevitable, with "when" perhaps more of an uncertainty than "if." 

Most recent related posts:

November 1, 2024 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Once again, a November starts, the new Guidelines are here, the new Guidelines are here!!

Though I have made this old reference many times before, November 1 still gets me thinking of this silly scene from "The Jerk" in which which Steve Martin's character is so excited about the new phonebook, which he says means "things are going to start happening" now.  I am not sure if anyone even prints phonebooks anymore; I am sure, in the federal sentencing world, it is still exciting when the "new book," the latest official revised version of the US Sentencing Guidelines, becomes official and effective on November 1. 

Excitingly, the US Sentencing Commission sent out an email yesterday highlighting some notable new resources related to the new guidelines. Here is part of the text and links from this email: 

What's New In The 2024 Manual?

Amendment 826 (Acquitted Conduct)

Amendment 827 (Loss Calculation)

Amendment 829 (Youthful Individuals)

... and more!

Learn about all of this year's amendments in the Reader-Friendly or review the quick summary of changes inside the front cover of the printed manual. 

The Commission has parked all six segments of the USSC podcast described as a "Guideline Amendments Miniseries" are available at this link.  Though there are a number of interesting elements to these amendments, they are all relatively modest in their particulars, especially as compared to the many more consequential changes in the 2023 Guideline amendment cycle. 

Interestingly, these may be the first set of amendments in which we do not know, at the time of implementation, if any could end up retroactive.  After gathering comment and conducting a public hearing in July on this topic, the Commission in August announced at a public meeting that it would "not be voting on retroactivity" while it worked on "clear principles that will guide its approach to retroactivity."  I do not know if the Commission is making progress on this front, but I do not know that amendments are not retroactive unless and until the Commission votes to formally make them retroactive. 

November 1, 2024 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (7)

Thursday, October 31, 2024

"How Does Judges' Personal Exposure to Financial Fraud Affect White-Collar Sentencing?"

The title of this post is the title of this new paper now available via SSRN authored by Trung Nguyen, Aneesh Raghunandan and Alexandra Scherf. Here is its abstract:

We study whether federal judges' personal exposure to financial fraud affects their professional behavior, in the form of sentencing outcomes in white-collar cases.  Following the methodology outlined in our registered report, we construct a novel measure of financial fraud exposure based on judges' direct shareholdings in firms that commit financial fraud. Using this measure, we exploit the random assignment of cases to judges to examine whether judges exposed to fraud in one firm (i) are less likely to rule in favor of defendants in white-collar cases involving other firms and (ii) less likely to grant favorable pre-trial motions to defendants.  We find minimal evidence in support of either (i) or (ii), concluding that for all but the most serious frauds, judges are unlikely to let their personal victimhood experience affect their professional sentencing behavior with respect to related cases.  Our study broadens our understanding of the spillover effects of financial fraud enforcement and contributes to the literature on how judges' personal experiences can shape judicial decision-making.

October 31, 2024 in White-collar sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, October 30, 2024

Previewing latest cases before circuit court on USSC guideline allowing some "changes in the law" to serve as basis for sentence reduction under § 3582(c)(1)(A)(i)

Bloomberg Law has this new article, headlined "Sentencing Commission Policy Power Faces Unusual Test on Appeal," previewing a notable oral argument in the Sixth Circuit scheduled this week to consider the US Ssentencing Guideline provision that permits some "changes in the law" to serve as basis for possible sentence reduction under § 3582(c)(1)(A)(i).  Here are excerpts:

A US Sentencing Commission policy statement that allows courts to consider nonretroactive changes to the law when weighing a criminal defendant’s bid for compassionate release will be tested during oral arguments in the US Court of Appeals for the Sixth Circuit Thursday.

Federal prosecutors around the country have challenged the policy statement, which allows courts to consider a change in the law — other than nonretroactive changes to the guidelines manual — as an extraordinary and compelling reason allowing a sentence reduction.

Under the policy, courts must consider the defendant’s individualized circumstances and can reduce a sentence only when the defendant received an “unusually long sentence,” has served at least 10 years in prison, and there’s a “gross disparity” between the sentence the defendant is serving and the sentence likely to be imposed now.

The Justice Department says the commission is effectively making nonretroactive laws retroactive....

Before the commission stepped in, five circuits—the Third, Sixth, Seventh, Eighth, and D.C. — said courts couldn’t consider a nonretroactive change in the law for purposes of compassionate release. Four circuits — the First, Fourth, Ninth, and Tenth—explicitly allowed judges to consider such changes, at least when examining a defendant’s overall circumstances.

The commission amended its policy statement describing “extraordinary and compelling” reasons for a sentence reduction in response to the First Step Act of 2018, an overdue move resulting from the commission lacking a quorum for several years.

The policy aimed to resolve the circuit split by allowing consideration of nonretroactive changes within a larger analysis. But DOJ has since taken the position that—despite an express delegation of authority — the policy exceeds the commission’s statutory power.  In DOJ’s view, a change in law can never be “extraordinary” or “compelling.”

Regular readers may know that I think this issue should be pretty easy to resolve for any and every jurist committed to textualism. There is absolutely nothing in the text of § 3582(c)(1)(a) that supports the Justice Department's contention that non-retroactive changes in the law cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors.  If a court rules otherwise, it is just inventing an extra-textual categorical limitation on the express statutory authority Congress gave to district courts to reduce prison terms (persumably based on the court's policy view that there should be additional limits beyond what Congress set forth in the statutory text).

That said, Congress did provide expressly in statutory text that there is be one factor that could not alone serve as the basis for sentence reduction under § 3582(c)(1)(a): "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason." 28 USC § 994(t).  But that clear textual exclusion reveals that Congress plainly knows how, in express statutory text, to exclude a particular reason from being alone the basis for a sentence reduction.  The expresio unius canon of construction — "the expression of one is the exclusion of others" — in turn suggest that courts should not be inventing additional extra-textual categorical exclusions that Congress did not actually place in the statutory text.  (Moreover, the use of the word "alone" in § 994(t) further suggests that Congress wants even "debatable" factors that cannot alone be the basis for a reduction to be useable in combination with other factors.)

Of course, Congress also provided in 28 USC § 994(t) that the US Sentencing Commission "shall describe what should be considered extraordinary and compelling reasons for sentence reduction," which does suggest that the Commission has statutory authority to limit what can qualify as "extraordinary and compelling reasons" for a sentence reduction.  Indeed, the Commission did just that in its 2023 amended policy statment, §1B1.13(b)(6), which puts all sorts of restrictions on just when "a change in the law ... may be considered in determining whether the defendant presents an extraordinary and compelling reason."  But, again, the text in applicable statutes makes plain that Congress tasked only the Commission with describing (and potentially limiting) sound grounds for sentence reductions under § 3582(c)(1)(a).  Creating new categorical limits on sentencing reduction grounds is not a job for circuit courts, unless those courts believe it is supposed to be their role to ignore clear statutory text and displace the policy-making roles of both Congress and the US Sentencing Commission.

October 30, 2024 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Am I the only one disappointed that former Prez Trump has not a new short list of possible Supreme Court nominees?

In this post a month ago, I asked "Is former Prez Trump going to release a new short list of possible Supreme Court nominees?".  In that post, I noted that Trump's clever and consequential decision in May 2016 to release a "short list" of people he would consider as potential Supreme Court appointments made for great blog fodder for court watchers.  I also noted that in mid-August 2024, Trump told a CBS reporter that he would release a new SCOTUS shortlist of possible nominees in September 2024.  But here we now are days before the election, and no short list.

I have seen a few recent press pieces about the election and the Supreme Court's future, but none of these pieces makes mention of the fact that 2024 is the first Trump presidential campaign without a short list:

From CNN, "There’s no such thing as a guaranteed Supreme Court vacancy"

From New York Magazine, "How the 2024 Election Will Reshape the Supreme Court"

From the New York Times, "This Election Is Also a Choice Between Two Visions of the Federal Courts"

I am inclined to guess that Trump's team has figured out that it would not be especially useful to generate media buzz about Trump's possible plans (and even potential eagerness) to replace the oldest Supreme Court Justices, who are Justices Clarence Thomas and Samuel Alito.  Still, for those of use who like to speculate about SCOTUS matters, the lack of a list is a small bummer.  And, of course, if Trump returns to the White House, I suspect that there will be any number of folks who will be eager to encourage Justices Thomas and Alito to make room for more Trump SCOTUS appointees.

October 30, 2024 in Campaign 2024 and sentencing issues, Who Sentences | Permalink | Comments (2)

Tuesday, October 29, 2024

Notable polling data on crime views on the eve of Election 2024

I just saw this intriguing new YouGov report with all sort of polling data on a range of crime issues. The piece is titled "Crime: What 2024 voters want and which candidate they trust" and is worth a full read (though none of the result strike me as too surpring). Here is how the piece gets started: 

During the 2024 presidential election campaign, YouGov asked registered voters their views on eight topics, including crime — the crime-related issues that matter most to them, the policies they support, and the candidates they trust. Among our findings:

  • The issue of crime is ranked highly among Trump's supporters — 45% say it's one of their three biggest issues — but is far less likely to be prioritized by voters supporting Harris, only 19% of whom say it's a top-three issue.
  • The crime-related issue that voters are most likely to emphasize is gun policy. Gun policy is by far the top issue for supporters of Harris, followed by racial disparities in criminal justice. Trump's voters place the most priority on police funding and criminal sentencing, though a large share also cares about guns.
  • Trump is somewhat preferred to Harris on the handling of crime overall, but trust on specific crime-related issues varies. Harris is more trusted than Trump for handling racial disparities in criminal justice, white collar crime, and marijuana laws. Trump leads Harris in trust on handling police funding and criminal sentencing. Voters are closely divided on who they trust more to handle gun policy, policing practices, and privacy rights.
  • Harris' crime policies are, on average, more popular than Trump's. Majorities of voters favor Harris-backed proposals for universal background checks for gun purchases and reentry programs for former prisoners. Trump's proposal to impose mandatory minimum sentences for violent crimes also is supported by a large majority of voters, including by most of his supporters and Harris'. Two of his plans each get far less support, including from less than half of his own supporters: giving qualified immunity to police officers and allowing the death penalty for drug dealers.
  • Voters are largely able to correctly identify Harris' policies regarding guns. Most voters also know that Trump wants to pardon participants in the January 6th attack and to send troops into cities to enforce order. Fewer than half of voters — including just 37% of his own supporters — know about Trump's support for allowing the death penalty to be imposed on drug dealers.

October 29, 2024 in Campaign 2024 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (4)

Monday, October 28, 2024

An incomplete review of former Prez Trump's eccentric and eclectic use of his clemency power

Over at Slate, there are two new pieces about Donald Trump's clemency record when he was in the Oval Office.  Because "weird" has apparently taken on talismanic meaning this election cycle, the headline of one piece uses that adjective to describe Trump's pardons.  As the headline of this post highlights, I am thinking "eccentric and eclectic" are more fitting.  Readers are urged to make suggestions on the best adjectives to describe Trump's record after checking out these Slate pieces:

"Trump’s Pardons Were Way Weirder Than You Remember: A rattlesnake smuggler, a congressman who spent campaign money on his rabbit, a hip-hop superstar—and more!"

"I Revisited Everyone Donald Trump Pardoned. One Alarming Consequence Was in Plain Sight.: His disgraced political operatives have been busy."

Here is a segment from the start of this second piece:

When Donald Trump, seven months into his presidency, pardoned the corrupt Arizona Sheriff Joe Arpaio before he could even be sentenced — calling the 85-year-old a “great American patriot” — it caused a gigantic scandal....

That first pardon broke with accepted norms, but by the end of his term, when Trump had granted pardons or commutations to 237 people, few were surprised by the kinds of recipients on the list. There were war criminals and police officers accused of brutality. There were scores of people who had been convicted of political corruption or fraud. The then president wasn’t exceptional in pardoning large numbers of people — Obama, for example, granted executive clemency to 1,927, many as part of mass commutations for nonviolent drug offenses — but Trump’s pardons were remarkably self-serving.

The full list includes an eclectic mix of criminals: drug dealers, wildlife smugglers, rappers who illegally possessed firearms, even sellers of bad beef.  But there’s a category of recipient that stands out: his own people.  Donald Trump had a remarkable number of people in his orbit who were convicted of crimes, including Steve Bannon, Michael Flynn, Roger Stone, and Paul Manafort.

Unsurprisingly, this kind of review glosses over clemency grants to a number of folks who were excessively sentenced and who failed to get relief from prior presidents (eg, Alice Marie Johnson and John Knock and a number of others).  In a funny way, I think one important lesson of Prez Trump's clemency record (and, to some extent, Prez Obama's record as well) is that granting a few (or many) controversial pardons to high-profile folks will lead to a whole lot of other clemency grants being largely ignored (for good or bad).

October 28, 2024 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"Assisted Outpatient Treatment: A State-by-State Comparative Review"

The title of this post is the title of this new paper now available via SSRN authored by E. Lea Johnston and Autumn Klein. Here is its abstract:

Assisted outpatient treatment, otherwise known as preventive outpatient commitment, is rapidly expanding across the United States, aiming to address mental health needs and reduce homelessness, hospital costs, and community violence.  Since 2019, fifteen preventive outpatient commitment statutes have been passed or expanded.  These statutes, which authorize courts to mandate community treatment for nondangerous individuals with mental illnesses, have evaded close scrutiny, rest on misconceptions, and raise significant constitutional concerns.  An analysis of legislative debates, court opinions, and scholarship reveals a fundamental misunderstanding about the prevalence of these laws, which contributes to their speedy passage.  Additionally, no analysis exists of these statutes' varying compositions.  Consequently, commentators underestimate their potential scope and enforceability.  Furthermore, a lack of clarity regarding the elements responsive to states' parens patriae and police power interests hinders accurate legal and policy analyses.

This Article explicates current preventive outpatient commitment statutes to enhance understanding of states' authority to compel community treatment.  It seeks to dispel common misconceptions about these statutes, including their prevalence, minimal invasiveness, applicability to only those lacking insight into their condition, and unenforceability through courts' contempt power.  It also offers a detailed analysis of the aspects of these statutes most crucial to their justifiability, i.e., criteria related to dangerousness and treatment decision-making incapacity.  Such examination is necessary to understand the evolving relationship between states and individuals with mental disorders, discern the goals of compelled treatment statutes, and assess their legality.  It is also essential for evaluating the success of these statutes and determining when a state's objectives have been fulfilled such that courts may not renew commitment orders.

This analysis aims to enrich future debates about the authority underpinning these statutes, their ideal composition, and their impact.  It also lays the foundation for future projects to examine the constitutionality of these statutes, their efficacy, and their broader justifications.

October 28, 2024 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, October 27, 2024

Continuing coverage and comment on Menendez brothers' possible resentencing

Unsurprisingly, the announcement last week by the Los Angeles DA that he will seek resentencing for the Menendez brothers has generated more media coverage and comment about the case and the brothers.  Here is a partial round up of pieces catching my eye:

From the AP, "The Menendez brothers built a green space in prison. It’s modeled on this Norwegian idea."

From The Daily Beast, "Menendez Bros’ Family in Bitter Feud Over DA’s Freedom Plan"

From the Los Angeles Times, "Will the Menendez brothers be set free? How the parole board, the governor and a new D.A. could change things"

From NBC News, "Did Hollywood help the Menendez brothers’ case?"

From USA Today, "Are the Menendez brothers getting released? What to know about the resentencing decision"

The USA Today piece includes some of these details regarding timelines and procedures:

At a Thursday news conference, Nancy Theberge, deputy in charge of Gascón’s resentencing unit, said she would like to see the petition for resentencing go before a judge within the next 30 to 45 days. She added that the brothers' could attend the hearing either in person or via Zoom.... Theberge said Thursday the resentencing unit will coordinate with the defense to set up a court date so the petition requesting resentencing can be heard.

The judge overseeing the hearing will then rule on the petition and decide whether the brothers will be eligible for parole. If the judge agrees the brothers should be resentenced, they will go before a parole board, which will primarily evaluate "whether they are rehabilitated and safe to be released," Gascón said.

The district attorney said while he and some members of his office believed the brothers deserve to be resentenced, there may be other members of his office who will present arguments on why they should remain in prison for life.

"It's very possible that there will be members of this office that will be present in court opposing their resentencing – and they have a right to do so," he said, adding, "We encourage those that disagree with us to speak in the court."

Prior recent related posts:

October 27, 2024 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, October 25, 2024

Notable new accounting of post-Bruen Second Amendment claims brought by 1,450 criminal defendants

This new Trace article, headlined "A Supreme Court Decision Claimed to Take Partisanship Out of Gun Cases. It Didn’t," provides a new accounting of Second Amendment cases since the Supreme Court transformed the applicable jurisprudence in its landmark 2022 Bruen decision.  The subtitle of the article highlights it general themes: "A Trace analysis of more than 1,600 rulings found that the Bruen decision has given judges remarkable leeway. The results have been starkly partisan."  

This article details that the vast majority of the post-Bruen rulings are in criminal cases, though I am not sure these reported data on these criminal cases make compelling the "starkly partisan" claim:

The Trace’s analysis identified 150 lawsuits seeking to overturn state assault weapons bans, age limits on buying firearms, licensing rules, and other gun restrictions. In these cases — many of which were brought by the National Rifle Association and other gun rights groups — Republican-appointed judges sided with plaintiffs 48 percent of the time. 

That is four times the rate of Democratic appointees, who did so in 13 percent of the cases they heard.

The remaining 1,450 rulings reviewed by The Trace involved criminal defendants, many of whom were using Bruen in an attempt to have their charges or convictions thrown out. In these cases, some Democratic judges have been sympathetic to arguments that gun regulations not only have little historical support but also disproportionately affect marginalized groups.

Democratic appointees have sided with gun rights claims in 30 out of the 525 criminal cases they’ve heard, or 6 percent. Two judges — Robert Gettleman and Staci Yandle, both in Illinois — alone issued 17 of those 30 rulings. By comparison, Republican-appointed judges ruled in favor of defendants in 22 out of 748 criminal cases, or 3 percent. (The remaining criminal cases were heard by nonpartisan magistrate judges.)

It seems there are two "outlier" Democratic appointees who may be rejecting many or most federal gun charges, whereas all other Democratic appointees are siding with gun defendants at nearly the exact same (very low) rate as Republican-appointed judges.  And, perhaps most notable, these Trace data show that, roughly speaking, there has been ten times as much post-Bruen Second Amendment litigation in criminal cases as in civil cases.

October 25, 2024 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (0)

"No Need To Wait: Congress Has the Power Under Section Five of the Fourteenth Amendment to Abolish the Death Penalty in the States"

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

Congress has the authority to abolish the death penalty in the states, and good reason to exercise it.

This Article takes as a given the Supreme Court’s view that the death penalty is not itself unconstitutional.

But under existing law Congress would have no difficulty in compiling a record that would support the use of its enforcement power under Section Five of the Fourteenth Amendment to enact a statute forbidding the imposition of capital punishment by those states that retain the practice.  The statute would be congruent and proportional legislation to remedy and prevent an amply documented history of violations of rights that the Court has long recognized as fundamental concerns.

Those violations include the states’: (1) denial of effective assistance of counsel to capital defendants, (2) racial discrimination in the selection of capital jurors and in charging and sentencing decisions, (3) failure to structure death penalty systems so as to reliably result in the execution of the most culpable of the potentially eligible defendants, (4) execution of the mentally impaired, (5) execution of prisoners contrary to the Constitution due to the fortuities of litigation timing, (6) execution of the innocent, and (7) use of torturous methods of execution.

Advocacy efforts supporting a federal statute abolishing capital punishment may achieve surprising success. Congressional representatives from abolitionist states may vote for one, and so may some legislators from retentionist states, buttressed by the growing number of political conservatives who support abolition. In any event, the campaign itself may strengthen the abolitionist cause.

October 25, 2024 in Death Penalty Reforms, Who Sentences | Permalink | Comments (9)

Thursday, October 24, 2024

Brennan Center releases "Myths and Realities: Prosecutors and Criminal Justice Reform"

The Brennan Center for Justice today released this new "expert brief" seeking to make the case that there is "no clear relationship between pro-reform prosecutors and increased crime." Here is how the data-heavy report gets started (with links from the original):

Prosecutors play a vital role in the criminal justice system, determining not just which cases to pursue but also what charges to file and penalties to seek.  Over the past decade, some prosecutors have developed approaches that aim to reduce racial and economic disparities and unjust outcomes in the legal system — such as excessive sentences or the criminalization of poverty through cash bail — while preserving public safety.

Far from a unified group, these prosecutors bring many different approaches to their work.  They span the political spectrum and are found in urban and rural jurisdictions alike. They are often grouped under the label “progressive prosecutors” or “reform-minded prosecutors.”  For the purposes of this analysis, we use the term “pro-reform prosecutors” to indicate chief district attorneys, county attorneys, commonwealth attorneys, and state attorneys who campaigned on or promised to reimagine the role of their office to broadly reduce unjust disparities in the justice system and decrease unnecessary incarceration.

Some critics have alleged that pro-reform strategies have driven increases in crime. We evaluate those claims, drawing on recent crime data and an understanding of how the criminal justice system works in practice, and find that these claims lack support.  In fact, there is no evidence that pro-reform prosecutors are responsible for crime rising or falling.

No Clear Relationship Between Crime Trends and Pro-Reform Prosecutors

First, we use data from the last decade, which includes the period of time during the Covid-19 pandemic, to evaluate how crime trends have changed in cities with and without pro-reform prosecutors. Previous research on this subject has, with some exceptions, found little to no relationship between the inauguration of a pro-reform prosecutor and a measurable increase in crime, even after using sophisticated statistical strategies.

Our analysis, described below, also finds no clear relationship between the pro-reform prosecutorial approach and the incidence of crime. Using data collected by the Council on Criminal Justice, we compared aggravated assault, larceny, and homicide trends in cities with pro-reform prosecutors to trends in cities without pro-reform prosecutors.  Assault and larceny were selected because of their frequency, allowing clearer analysis, and because they are more likely to be affected by prosecutorial decision-making. Murder was chosen because of its seriousness and because those crimes spiked sharply during the first two years of the Covid-19 pandemic.

Researchers have previously relied on several criteria to define pro-reform prosecutors, including a focus on the use of diversion policies, increased resources devoted to police accountability units, use of data to mitigate racial bias, reduced support for excessively long punishments, reviews for claims of wrongful convictions, and limitations on the use of money bail. In this article, we build on these methods and select only those prosecutors who have been consistently categorized as pro-reform by other researchers in the field.

As illustrated below, trends are not meaningfully different between cities with pro-reform prosecutors and cities without pro-reform prosecutors.  For each group, we plot the average percentage change in crime rates from a 2018 baseline.  The effects of seasonal variation and the Covid-19 pandemic are broadly similar, and the net changes in aggravated assault, larceny, and homicide rates between 2018 and 2024 are remarkably alike. Neither group sees drastically better or worse outcomes.

October 24, 2024 in National and State Crime Data, Who Sentences | Permalink | Comments (1)

LA District Attorney announces that he will seek resentencing for the Menendez brothers

In this post from a few weeks ago, I noted the notable activity focused on possible resentencing of the Menendez brothers, who were convicted and sentenced to LWOP in California for the brutal 1989 killing of their parents. As reported in this Courthouse News Service piece, "LA District Attorney George Gascon announced Thursday that his office will be recommending that Erik and Lyle Menendez, who killed their parents in 1989, be resentenced." Here is more:

Erik and Lyle Menendez have been locked up for 35 years and are serving life sentences without the possibility of parole. They have claimed, both during their trials and subsequent to them, that they were sexually abused by their father Jose, and that the killings were done out of fear of continued abuse and a response to trauma. Their first trial, in 1993, ended in a mistrial, with the jury remaining deadlocked after a month of deliberations. After a second trial ...., the brothers were convicted. During both trials, prosecutors argued that Jose never abused his children, and that the brothers were motivated by money.

Recently, two new pieces of evidence have emerged that the brothers and their supporters say add weight to the claims of abuse. In 2023, a former member of the boy band Menudo, Roy Rossello, revealed that Jose Menendez, a record executive, drugged and raped him when Rossello was 14 years old. In addition to that, a letter purportedly written by Erik Menendez to his cousin in 1988, less than a year before the killings, was unearthed. In the letter, Menendez refers to the sexual abuse, writing, "Every night I stay up thinking he might come in."

Last year, the brothers filed a writ of habeas corpus, asking for the convictions to be thrown out based on new evidence, writing in a brief, "The new evidence not only shows that Jose Menendez was very much a violent and brutal man who would sexually abuse children, but it strongly suggests that — in fact — he was still abusing Erik Menendez as late as December 1988."

Last week, more than 20 of Erik and Lyle's family members met with Gascon, asking for the brothers to be resentenced under Marsy's Law, which gives crime victims a right to be heard prior to sentencing, as well as to have a say in resentencing hearings. Most of the extended Menendez family say 35 years in prison is more than enough for the brothers, now in their mid 50s, given the abuse they suffered at the hands of their father.

But not all family members agree. Milton Anderson, the 90-year-old surviving brother of Kitty, the brothers' mom, has spoken out against letting his sister's killers go free. "The 'new evidence' Gascón relies on cannot legally justify overturning the murder convictions of Erik and Lyle Menendez, who meticulously planned and executed the cold-blooded murders of both their parents," Anderson's attorney said in a written statement on Thursday. "They shot their mother, Kitty, reloading to ensure her death. The evidence remains overwhelmingly clear: the jury’s verdict was just, and the punishment fits the heinous crime."

I believe what is now California Penal Code § 1172.1 provides the legal basis and sets forth the legal standards for this kind of resentencing.  I am not at all familiar with California resentencing practices, but I would guess that most judges follow the recommendations of prosecutors in these kinds of cases.  But high-profile cases do not always follow the patterns of other cases, and it will be interesting to observe both the process and substance of this notable re-sentencing decision.

Prior recent releated post:

October 24, 2024 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Governor Kate Brown of Oregon's Historic Use of Clemency: Using Clemency Exactly as It Was Intended"

The title of this post is the title of this new article that I just saw in the latest issue of Lewis & Clark Law Review authored by Mark Cebert and Aliza Kaplan.  Here is its abstract:

In Oregon, executive clemency is among the most expansive, yet historically underused, power a governor possesses.  Yet, across her two terms as Oregon’s 38th governor, Governor Kate Brown exercised her power of executive clemency a record 61,777 times, dwarfing the clemency use of her predecessors and her contemporaries in other states.  Governor Brown’s proactive approach to clemency presents a model for executive involvement in criminal justice reform and aligns with her beliefs of a redemptive and rehabilitative criminal legal system.  In this Article, we examine Governor Brown’s use of clemency, analyzing what her stated and implied rationales reveal about her concerns for the nuanced impacts of criminal sanctions, as well as for the Oregonians most impacted by the criminal legal system.  We contextualize Governor Brown’s use of clemency with her predecessors and compare the constitutional structure and use of clemency in Oregon with other states.  We detail and examine Governor Brown’s grants of clemency by type: pardons, commutations, reprieves, and remissions.  We discuss the media’s response to Governor Brown’s historic exercise of her clemency power, and finally, in Governor Brown’s own words, discuss the future of clemency in Oregon and beyond.

October 24, 2024 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, October 23, 2024

Ninth Circuit panel reverses 168-month sentence of Michael Avenatti based on various guideline issues

As reported in this Courthouse News Service piece, "Michael Avenatti, who gained notoriety while representing adult film actress Stormy Daniels in her legal dispute with then-President Donald Trump, earned a rare legal victory Wednesday when a Ninth Circuit panel threw out his 14-year sentence for stealing millions of dollars from his former clients." Here is more about the ruling:

It is longest of three prison sentences the 53-year-old Avenatti is currently serving. He was given four years for stealing money Daniels was due for a tell-all book, and 30 months for trying to extort Nike....

The three-judge panel found the trial judge in Orange County made a number of errors in sentencing the disbarred lawyer.  For one thing, in calculating the amount of money Avenatti stole from his clients, the judge "should have accounted for the value of his legal services and costs, as well as the value of certain payments he made to victims," the appellate judges wrote in their 9-page ruling.

"By finding that Avenatti’s victims “lost” the full settlement value without accounting for Avenatti’s fees and costs, the district court enhanced Avenatti’s sentence based on pecuniary harm that did not occur, and did not 'result from [Avenatti’s] offense,'" the judges wrote.

In addition, the panel found U.S. District Court Judge James Selna abused his discretion in refusing to "credit (and thus deduct from the losses) the value of payments Avenatti made to Geoffrey Johnson, Alexis Gardner, and Gregory Barela after he misappropriated their settlements. These too, should be accounted for on remand."

U.S. Circuit Judges Michelle Friedland, a Barack Obama appointee, and Roopali Desai, a Joe Biden appointee, made up the panel along with U.S. District Judge Karen E. Schreier, sitting with the panel by designation from the District of South Dakota. They did reject a few arguments Avenatti had made in his appeal, including the assertion that the Nike conviction wasn't relevant conduct.

The full (unpublished) opinion is available at this link.

October 23, 2024 in Celebrity sentencings, Sentences Reconsidered, Who Sentences | Permalink | Comments (14)

"The 'Alito Hypothesis' in an Era of Emboldened One-Party State Rule"

The title of this post is the title of this new essay now available via SSRN authored by Wayne Logan. Here is its abstract:

The Supreme Court has long relied upon state legislative preferences when establishing federal constitutional norms. With capital punishment, for instance, state laws figure centrally when deciding whether a particular practice satisfies Eighth Amendment “evolving standards of decency.”  In Kennedy v. Louisiana (2008), which barred execution of child rapists, Justice Alito in dissent hypothesized that the majority under counted the number of states supporting the practice, reasoning that Coker v. Georgia (1977), which barred execution for the rape of an adult woman, likely discouraged states from enacting capital child rape laws, resulting in a misleadingly low tally of state preferences.

This essay questions the viability of what I term the “Alito Hypothesis” in a time when multiple states are dominated by conservative one-party political rule, emboldened by a like-minded Supreme Court seemingly less wedded to stare decisis.  Recent experience in Florida provides a case in point.  In Spring 2023, the Republican super majority Florida legislature passed, and Republican Governor Ron DeSantis signed into law, a provision adding child rape to the list of death-eligible offenses.  In doing so, the state made clear that it was not deterred from enacting a facially unconstitutional law, expressly proclaiming that Kennedy “was wrongly decided and an egregious infringement of the states’ power to punish the most heinous of crimes.”

If Florida’s bold approach catches on, there will likely come challenges to other constitutional precedents.  These include those limiting other punishment practices (capital and non-capital), protections afforded criminal defendants, and civil liberty protections, such as the right to access contraceptives and the prohibition of poll taxes.  In short, rather than being dissuaded from enacting contrarian laws, as the Alito Hypothesis would dictate, emboldened states enacting facially unconstitutional laws could well provide the basis for the Court’s reassessment of state-level preferences in multiple areas, in time possibly spearheading a major overhaul of the nation’s federal constitutional rights infrastructure. 

October 23, 2024 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Judicial Conference’s advisory committee for criminal rules recommends no change to camera ban

As reported in this recent Bloomberg Law piece, "A judiciary panel has recommended against revising a rule that prohibits broadcasting of federal criminal trials, following a push to permit cameras ahead of potential trials involving former President Donald Trump." Here is more:

Members of a subcommittee created last year to study the issue raised concerns that allowing criminal trials to be broadcast “would have a negative effect on witnesses and victims in criminal cases” and “stressed the need for a cautious approach to broadcasting in criminal cases,” according to a recently published October memo to the full committee.

Panel members cited examples of cases involving sexual abuse, gangs, and confidential informants where broadcasting could chill witness cooperation. And they worried the policy allowing audio broadcasting of some civil cases is too new to expand to the criminal context.

The panel said if there is “continued interest” in broadcasting criminal cases, the issue could be revisited after enough time has passed for that policy change to be formally reviewed.

The memo, dated Oct. 9, was authored by Professors Sara Sun Beale of Duke University School of Law and Nancy King of the Vanderbilt University Law School, reporters for the Judicial Conference’s advisory committee on criminal rules, and included in materials released ahead of the committee’s scheduled meeting next month.

Because I am an advocate of increased criminal justice transparency and accountability, I find this news disappointing, but not especially surprising.  I fully understand the need for some (perhaps many) proceedings to shielded from any broadcasting, but a blanket ban with no exceptions seems a bit too cautious to me.

October 23, 2024 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, October 22, 2024

"Richter's Scale: Proving Unreasonableness Under AEDPA"

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

No provision is more central to the administration of the “Great Writ” of habeas corpus than Section 2254(d) of the Antiterrorism and Effective Death Penalty Act, which limits a federal court’s ability to grant relief on a claim already adjudicated by a state court.  Before granting relief, the statute provides, a federal court must decide that its state counterpart acted unreasonably.  But that only raises the same questions that have plagued lawyers for centuries. What does it mean to be unreasonable? How can one prove unreasonableness?  Two of the landmark decisions applying the statute — Harrington v. Richter and Wilson v. Sellers — have addressed these questions in contexts where state courts did not explain their reasoning.

In their wake, however, significant confusion has arisen about how reasonableness can be determined when a state court does explain itself.  To make matters worse, the Supreme Court’s cases confronting such circumstances laid down seemingly irreconcilable rules.  As a result, at least three separate approaches have emerged in the lower courts.  In this Article, I argue that “unreasonableness” consists in committing a “qualifying error,” and that a prisoner can surmount Section 2254(d)’s barrier to relief by proving such an error either directly or through circumstantial evidence.  This approach not only harmonizes the tension between several lines of habeas cases but also gives each a much stronger footing in the text of the statute and the broader structure of federal habeas corpus.

October 22, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Federal judge refuses to interfere with South Carolina's clemency process

I flagged in this recent post the notable request by a condemned South Carolina inmate for a federal judge to take away the clemency power from the SC Governor.  Richard Moore argued that the Gov could not fairly consider his request to commute his death sentence to a life sentence because the Gov had been Attorney General overseeing efforts to uphold Moore’s death sentence.  Yesterday, as detailed in this local press piece, this request was rebuffed:

A federal judge has ruled that Gov. Henry McMaster will retain his right to be the final judge of clemency for a death row inmate even though he once claimed to have no intention of doing so.  “The Court is confident... Governor McMaster will give full, thoughtful, and careful consideration to any clemency petition filed by Moore, giving both comprehensive and individualized attention to the unique circumstances of his case,” wrote U.S. District Court Judge Mary Geiger Lewis in a ruling issued Monday.....

Moore, 59, is scheduled to be executed by lethal injection on Nov. 1. He was sentenced to death in 2001 for shooting and killing James Mahoney, a Spartanburg County store clerk, during an armed robbery two years prior....

Legal precedent did not support removing a governor’s power to grant clemency, contained in the state constitution, just because he had served as an attorney general, Lewis wrote....  Lewis’ ruling came after she took the extraordinary step of requesting the governor to submit an affidavit to the court swearing that he would carefully consider Moore’s clemency request.

In a carefully worded affidavit, McMaster wrote that “understanding that executive clemency is purely a matter of mercy and grace within the exclusive authority and solemn discretion bestowed up the Governor alone... it is and has been my intention and commitment to take care to understand the issues presented, including those from my review and consideration of applications, petition, and request for clemency presented to me by or on behalf of a condemned inmate.”

Moore’s lawyers told The State that they intend to appeal the decision to the 4th Circuit Court of Appeals.

The full 10-page ruling in Moore v. McMaster, No. 3:24-5580-MGL (DSC Oct. 21, 2024) (available for download below) makes for an interesting read. Here are a few notable passages:

As an initial matter, Moore misconstrues Woodard as holding the minimal procedural safeguards guaranteed by the Due Process Clause include notice and an opportunity to be heard before an impartial decision-maker. This standard is unsupported by Woodard, which merely requires the Court to determine whether a state’s clemency procedures are arbitrary or based upon whim. 523 U.S. at 289 (“[S]ome minimal procedural safeguards apply to clemency proceedings. Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.”)....

Even if the Court were to employ the standard set forth by Moore, however, and hold the minimal procedural safeguards guaranteed by the Due Process Clause include Moore “having his clemency application considered and evaluated by an impartial, open-minded, and unbiased decision-maker[,]” Moore’s Motion at 1, the Court is confident — based on the full context of Governor McMaster’s public statement and his declaration — Governor McMaster will give full, thoughtful, and careful consideration to any clemency petition filed by Moore, giving both comprehensive and individualized attention to the unique circumstances of his case.

Download Moore v. McMaster clemency ruling

October 22, 2024 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (13)

"Oregon's Drug Decriminalization Debacle"

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

The failure of the Oregon Drug Addiction Treatment and Recovery Act of 2020 to achieve its objectives teaches us a host of lessons about the prospects of any new law or policy to achieve its stated goals.  Measure 110 failed for a number of reasons, including that its proponents held unrealistic opinions about the ability of a new law to solve an old, chronic problem and failed to consider, or greatly misjudged, the reasons why a new approach to an old problem could become law without the support of an educated majority of the electorate.  The proponents of Measure 110 thought that they had a perfect solution to an intractable problem.  They abandoned a strategy that, while far short of perfect, at least offered some people an opportunity to turn their lives around, and they did not consider middle-ground alternatives, involving some degree of coercion, that might have been more successful, albeit only partial, solutions for treating the abuse of dangerous drugs.  The reform they adopted worsened matters considerably, but Oregon deserves kudos for realizing that its experiment failed and for trying to remedy its mistake with a different approach.  Hopefully, others will learn from what Oregon’s decriminalization strategy led to and will not have to suffer through the consequences of the mistakes that Oregon made.

October 22, 2024 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (3)

Monday, October 21, 2024

Substack musings on originalism and sentencing

Regularly readers are perhaps used to seeing irregular references here to some of my thinking about originalism and criminal justice topics.  This week over at the Sentencing Matters Substack, I mused on these topics a bit.  Here is the the start of this new post, which flags a few coming SCOTUS arguments and might whet some originalist appetites:

The Supreme Court earlier this month kicked off its latest season, October Term 2024, and sentencing fans may be especially interested in two federal cases to be argued in the coming months, Delligatti v. US and Hewitt v. US.  Both matters involve statutory interpretation issues, and advocates for the defendants in these cases invoke the “rule of lenity” in their arguments for their preferred statutory interpretation.

Reviewing the briefs in Delligatti and Hewitt got me to wondering if the rule of lenity should be considered a constitutional doctrine and how it might be linked to originalist views on our Constitution.   Interestingly, some of the Supreme Court’s most prominent originalists have been notable proponents of the rule.  The late Justice Antonin Scalia, in the words of one law professor, “revitalize[d] the rule of lenity,” and Justice Neil Gorsuch has written opinions championing the rule as “a means for upholding the Constitution’s commitments to due process and the separation of powers.”  And yet other avowed originalists now on the Supreme Court, ranging from Justice Samuel Alito to Justice Brett Kavanaugh to Justice Clarence Thomas, tend to give the rule of lenity short shrift.    

It will be interesting to see if the rule of lenity commands any attention in the coming oral arguments and eventual opinions in Delligatti and Hewitt.  And my musings about that doctrine’s relation to the Constitution and originalist philosophies is part of an effort, at the start of a budding scholarly project, to reflect on what constitutional principles in general — and originalist approaches to the Constitution in particular — ought to mean for modern sentencing systems and doctrines.  With many current Justices professing originalist commitments, it is timely and important to consider just what originalism might entail generally for various criminal law issues and doctrines (and this great recent Inquest piece by Cristian Farias engages on this broad front).  In particular, what originalism could and should mean for modern sentencing laws and practices especially intrigues and puzzles me.

Check out the rest of the post here.

October 21, 2024 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Supreme Court grants cert on (im)permissible factors for revocation of supervised release

The US Supreme Court released this order list this morning with a few cert grants.  The grants concerning challenges to actions by the EPA are likely to get a lot more attention than the one criminal case grant.  But sentencing fans should be intrigued by the grant in Esteras v. United States.  Here is how John Elwood described the case in a past "relist watch" post at SCOTUSblog: 

In setting forth factors a court may consider in revoking a term of supervised release and ordering a person to serve a prison sentence for violating a supervised-release condition, the supervised-release statute, 18 U.S.C. § 3583(e), cross-references some, but not all, subprovisions of 18 U.S.C. § 3553(a).  Congress omitted the factors set forth in Section 3553(a)(2)(A) — the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense.  Edgardo Esteras contends that five courts of appeals, including the 6th Circuit in his case, have concluded that district courts may rely on the Section 3553(a)(2)(A) factors, but four other courts of appeals have concluded that they may not.  The government contends that courts can properly consider such factors and that “[a]ny modest disagreement among the courts of appeals on the question presented has no practical effect.”

Put in (fancy?) punishment theory terms, Congress only expressly stated that utilitarian, crime-control considerations (deterrence, incapacitation, rehabilitation) are to be considered in supervised release revocation proceedings, but many circuits seems fine if judges also consider retributivist, just-desert matters in this context.  In many respects, this case feels like the flip side of the Tapia case from nearly 15 years ago where SCOTUS was focused on statutory sentencing factors at initial sentencing.  The Court in Tapia unanimously held that the "Sentencing Reform Act precludes federal courts from imposing or lengthening a prison term in order to promote a criminal defendant’s rehabilitation."

October 21, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, October 20, 2024

Rounding up some press pieces discussing the 2024 election and criminal justice matters

As we head into the final homestretch this election season, I have posted on a few topics related to Election 2024 ranging from felon disenfranchisement (here and here) to the political perspective of incarcerated persons (here) to the ACLU's take on what the candidates for Prez could mean for criminal justice systems (here and here) to notable ballot initiative in California and in Colorado.  There are, of course, too many other issues at the intersection of a big election and our big criminal justice systems to cover fully in this space, and I will seek to canvass some notable ground witha round up of notable press pieces that caught my eye in recent weeks:

From Bolts, "The 33 Prosecutor and Sheriff Elections that Matter to Criminal Justice in November"

From The Conversation, "On crime and justice, Trump and Harris records differ widely"

From FWD.us, "New Polling Shows Criminal Justice Reform is a Winning Issue for 2024 Election"

From PsyPost, "National politics now a key factor in local prosecutor election outcomes"

From The Source, "REFORM Alliance Highlights Justice Reform as Key Issue for Gen Z Voters"

October 20, 2024 in Campaign 2024 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (4)

Saturday, October 19, 2024

"20 Years On, It's Time To Fix The Crime Victims' Rights Act"

The title of this post is the title of this new Law360 essay authored by Bridgette Stumpf. Here are some excerpts:

The Crime Victims' Rights Act, passed in 2004, was intended to require actors in the criminal legal system to provide information to survivors of crime, as well as support to lessen the revictimization many survivors experience from the legal system itself.

Though the law was a good start, it has fallen short in several key ways. As we approach the 20th anniversary of the CVRA this month, it's time to confront what is broken about the law....

Within the criminal legal system, survivors have very little control or options for empowerment, despite efforts to create meaningful inclusion through laws like the CVRA.  Given this reality, criminal legal reform must prioritize the opportunity to ensure survivors know about their options and are connected to actionable support to minimize the negative consequences of trauma.

A new bill would do just that.  The Reinforcing Crime Victims' Rights Act was introduced in late September and is sponsored by Reps. Debbie Wasserman Schultz, D-Fla., and Burgess Owens, R-Utah, with Reps. Jim Costa, D-Calif., and Lois Frankel, D-Fla., serving as original co-sponsors. Proposed amendments to the CVRA would require that survivors are provided with a crime victims' rights card.

Due to the so-called CSI effect — in which many people learn about the criminal legal system through fictitious television shows that solve crimes in less than an hour — many victims of crime believe that the prosecutor is their personal lawyer, even though the goals of the prosecutor and the victim do not always align.

Under the new bill, every crime victim would receive information, in writing, indicating that they have the right to seek independent victims' rights counsel during this process to ensure rights are afforded to them and enforced if violated.  This is an important step to ensure all survivors are receiving the same information.

Additionally, the bill would require more effective oversight of government actors who violate victims' rights.  Those who fail to afford rights to victims will be subject to complaints that carry actual remedies for crime victims.

October 19, 2024 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

Friday, October 18, 2024

Speculating about many SCOTUS relists in Eighth Amendment capital case concerning intellectual disability

Ian Millhiser has this interesting new Vox piece discussing the oft-relisted Supreme Court case of Hamm v. Smith under the headline "The strange case that the Supreme Court keeps refusing to decide: A mysterious Supreme Court case could change everything about criminal punishment." I recommend the lengthy piece in full, and here is how it gets started (with links from the original):

For more than a year, Joseph Clifton Smith, a man who says he is intellectually disabled, has sat on death row, waiting to find out if the Supreme Court will greenlight his execution.  Smith’s case, known as Hamm v. Smith, first arrived on the Court’s doorstep in August 2023.  Since then, the justices have met more than two dozen times to decide what to do about the case, and each time they’ve put the decision off until a future meeting.

No one outside of the Court can know for sure why the justices keep delaying, but if you follow the Court’s Eighth Amendment cases closely, it’s easy to see how the Hamm case could open up all kinds of internal rifts among the justices.

The Eighth Amendment, which has a vague ban on “cruel and unusual punishments,” is at the center of the Hamm case because, for decades, the Court has held this amendment forbids executions of intellectually disabled offenders (and offenders who commit a crime while they are juveniles). The idea is that both groups have diminished mental capacity, at least as compared to non-disabled adults, and thus bear less moral responsibility even for homicide crimes.

That idea, however, has long been contested by the Court’s various ideological factions, and the Hamm case potentially reopens up all of the Court’s issues with the amendment at once. Indeed, in the worst-case scenario for criminal defendants, the justices could potentially overrule more than 60 years of precedents protecting against excessive punishments.

This Vox piece goes on to highlight how the Hamm case potentially highlights how modern Eighth Amendment precendents does not jibe with more originalist views of the Cruel and Unusual Punishments clause.  Here is part of Millhiser's explanation:

[I]t’s possible that the Court is fighting over what to do with the Hamm case because many of the justices want a wholesale revolution in Eighth Amendment law.

Beginning in the mid-20th century, the Supreme Court maintained that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”  Thus, as a particular method of punishment grew less common, the Court was increasingly likely to declare it cruel and unusual in violation of the Constitution.

At least some members of the Court’s Republican majority, however, have suggested that this “evolving standards of decency” framework should be abandoned.  In Bucklew v. Precythe (2019), the Court considered whether states could use execution methods that risked causing the dying inmate a great deal of pain. Justice Neil Gorsuch’s majority opinion, which held that potentially painful methods of execution are allowed, seems to exist in a completely different universe than the Court’s Eighth Amendment cases that look to evolving standards.

While the Court’s earlier opinions ask whether a particular form of punishment has fallen out of favor today, Gorsuch asked whether a method of punishment was out of favor at the time of the founding....  What makes Bucklew confusing, however, is that it didn’t explicitly overrule any of the previous decisions applying the evolving standards framework.  So it’s unclear whether all five of the justices who joined that opinion share a desire to blow up more than a half-century of law....  Bucklew looms like a vulture over any cruel and unusual punishment case heard by the Court, as it suggests that the Republican justices may hit the reset button on all of its Eighth Amendment precedents at any time.

Thanks to some helpful readers, I have been keeping an eye on Hamm v. Smith, and Millhiser seems right that something notable is afoot behind closed SCOTUS doors.  My uninformed guess is that a few Justices, most likely Justice Alito, Gorsuch and/or Thomas, may be actively seeking to encourage their colleagues to take up the case as an opportunity to review and recast Eighth Amendment, but they are having a hard time getting a fourth vote for cert. And that challenge may reflect not only the concern other Justices may have about overturning modern Eighth Amendment precedents, but also the fact that a rigorous approach to Eighth Amendment originalism could possibly expand some rights against excessive punishments (according to some academics)

October 18, 2024 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Amid serious claims of innocence, Texas Supreme Court halts execution based on legislative subpoena

This local article, headlined "In stunning move, Texas Supreme Court halts Robert Roberson execution in 'shaken baby' case," provides an effective review (with links) of the legal drama yesterday that ultimately halted a closely watched execution date. Here are just some excerpts of just some part of quite a story:

The Texas Supreme Court late Thursday spared Robert Roberson on the night he was set to die by lethal injection, a rare and head-spinning eleventh-hour decision in one of the most controversial death penalty cases in years.

The all-Republican court's decision comes in response to a first-of-its-kind legal maneuver in which a state House committee voted to subpoena Roberson for a hearing scheduled days after his execution date. It could buy Roberson — who was set to become the first American executed for a conviction involving "shaken baby" syndrome at 6 p.m. Thursday — weeks or months to live as court proceedings continue to play out.

The order caps a whirlwind two-day effort from a bipartisan coalition of lawmakers who feverishly fought to keep a man they believe to be innocent from the execution chamber and riveted the nation's attention on Texas' application of the death penalty. 

The House representatives who led the movement expressed relief in a Thursday night joint statement. "For over 20 years, Robert Roberson has spent 23.5 hours of every single day in solitary confinement in a cell no bigger than the closets of most Texans, longing and striving to be heard," said Reps. Jeff Leach, R-Plano, and Joe Moody, D-El Paso. "And while some courthouses may have failed him, the Texas House has not." 

The drama Thursday took off when Leach and Moody successfully asked a Travis County state District Court to temporarily stay the execution to allow Roberson to answer a summons that the House Committee on Criminal Jurisprudence unanimously approved Wednesday.

The Texas Court of Criminal Appeals shortly thereafter overturned that lower court's approval of the lawmakers' request in a 5-4 decision, and minutes later Leach and Moody filed an emergency motion with the Texas Supreme Court to intervene, arguing the Criminal Appeals Court lacked jurisdiction over a ruling made in a civil court. Leach posted on social media before the state Supreme Court's decision that he was "Praying as if everything depends on God, which it does. But working as if everything depends on us."

The state Supreme Court agreed with the lawmakers, with Justice Evan Young writing in a concurrence that "the underlying criminal-law matter is within the Court of Criminal Appeals’ authority, but the relief sought here is civil in nature, as are the claims that have been presented to the district court."

Roberson's case for a reprieve has drawn widespread support from more than 80 Texas House members as well as from U.S. Supreme Court Justice Sonia Sotomayor, Dr. Phil and others.  After the U.S. Supreme Court rejected a petition to delay the execution around 4 p.m. Thursday, Sotomayor wrote in a statement that "mounting evidence suggests ... Roberson committed no crime at all."  Sotomayor and others have urged Gov. Greg Abbott to grant Roberson a 30-day reprieve, but the governor has remained silent on the case.

October 18, 2024 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (11)

Thursday, October 17, 2024

US Sentencing Commission releases latest data on compassionate release and retroactivity of 2023 criminal history amendment

The US Sentencing Commission today released a number of notable new data runs. Here is how the data is decribed via the email I received this afternoon:

Preliminary FY24 Compassionate Release Data Report

(October 17, 2024)  This data report provides a preliminary analysis of the compassionate release motions filed with the courts and decided through fiscal year 2024.

Retroactivity Data Report on the 2023 Criminal History Amendment

(October 17, 2024)  These data reports cover motions for a reduced sentence pursuant to the retroactive application of Parts A and B of Amendment 821, relating to Criminal History (effective November 1, 2023).

There is a lot which can and should be said about all these data, and I hope to discuss the compassionate release data in a separate post.  Here I will just note being struck by both the modest and majestic realities of the criminal history amendment retroactivity.  The Commission had estimated that over 18,500 federal prisoners would be eligible for a sentence reduction based on the criminal history amendments being made retroactive.  These latest data runs show than less than half that number have so far been granted a new reduced sentence.  And yet, those numbers still add up to over 8000 fewer years in prison for the beneficiaries of retroactivity.

October 17, 2024 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Exploring originalism and criminal justice at this SCOTUS moment

Cristian Farias has this terrific new essay at Inquest titled "Playing with Originalism: Should advocates looking to unwind our nation’s punitive excesses engage a Supreme Court that set them in motion?". This essay covers a lot of topics and ideas I have been thinking about lately, and topics and ideas at the untersection of originalism and criminal justice that I think merit a lot more attention. I recommend the piece in full, and here are just a few snippets:

In [certain] justices’ vision, text, history, and tradition rule the day, and every manner of law and policy must yield to it.  In this reality, could progressive originalism, as it were, be a tool for justice?...  The current Founding-era fervor among the justices, the thinking goes, could only set things back, since originalist rulings — on abortion, guns, the death penalty, and so much else — have reliably favored unpopular policy positions that conservatives welcome.  One former public defender turned seasoned advocate told me that, at this time, getting issues he cares about in front of the Court is simply a nonstarter: “My job is to keep cases away from the Supreme Court.”

But not everyone is on the same page.  Some advocates simply don’t have the luxury of not pursuing every available legal recourse for clients facing the loss of liberty or worse. If that means a long-shot Supreme Court appeal parsing what words meant nearly 250 years ago, they’ll go for it.  And they’re not the only ones on the broad progressive spectrum willing to engage with originalism on its own terms. A school of progressive legal thought constitutional scholar Jack Balkin calls “living originalism” maintains that the slaveholding Framers purposely left room in the written Constitution for newfangled protections for civil rights, the environment, and other causes that progressives hold dear.  Justice Ketanji Brown Jackson has been known to embrace arguments along these lines, leaving many to wonder if her appointment to the Supreme Court means some version of progressive originalism is here to stay....

Federal public defenders are among those thinking most seriously about how to craft arguments suited to the Supreme Court we have now. In the wake of New York State Rifle & Pistol Association v. Bruen, which in 2022 ruled that judges must in effect use originalism to assess firearm restrictions under the Second Amendment, federal defenders have been at the forefront of challenging a broad array of criminal prohibitions on gun possession....

And in areas where neither originalism nor any other sensible mode of constitutional interpretation guided the justices’ work in decades past, as in those cases [Rachel] Barkow has identified [in her new forthcoming book], the sky may well be the limit.  “I think there’s space for advocates to push the court, and I think they should,” Barkow said.

October 17, 2024 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (2)

Fascinating data from Marshall Project's political survey of people in 785 prisons and jails

The Marshall Project has released this new article, headlined "'Trump Remains Very Popular Here': We Surveyed 54,000 People Behind Bars About the Election," reporting the results of their sizeable survey of incarcerated persons.  I recommend the article in full in part because it has lots of interesting data on a lot of topics at the intersection of politics and prisons.  Here are excerpts to provide a bit of an overview:

 In 2020, The Marshall Project’s first-of-its-kind political survey revealed strong support for Trump, shattering a commonly held notion that people behind bars would overwhelmingly support Democrats.  This time around, we wanted to know what people in prison and jail thought about an election that has been cast as a contest between “a prosecutor and a convicted felon.”

More than 54,000 people in 785 prisons and jails in 45 states and the District of Columbia responded. Here is what we found:

  • Most respondents said they would vote for Trump, and support was particularly strong among White men. A substantial minority of Black men said they’d vote for Trump, too, if given the chance.
  • As previous surveys showed, a large share of people behind bars from all racial backgrounds don’t identify with either major political party — instead identifying as independent....

The Marshall Project partnered with two tablet providers in prisons and jails to conduct this survey. Ultimately, we ran two surveys, asking respondents to answer a few additional questions once Harris became the Democratic nominee. Participation in the survey was voluntary, so it’s important to keep in mind that responses are coming from a self-selecting group of people who may already be politically engaged and following the news....

“I’d say there is a majority of open support for Trump within the inmate population here, especially among the whites,” wrote Enrique Banda-Garcia, a Trump supporter who is incarcerated in Washington State Penitentiary. “And yes, we understand that Republicans are very tough on criminals and even tougher on us during our incarceration, nevertheless, Trump remains very popular here.”...

Some respondents were hopeful that Trump’s experience with the legal system would make him more sympathetic to people behind bars. Donarico Caudle, who is incarcerated in North Carolina, said in an interview that he thought Trump was going to take a look at problems after going through his own trial. “There are things that you see when you look at this legal system that’s dirty,” Caudle said....

Trump’s trial for paying hush money to a porn star before the 2016 election was closely watched by respondents of both parties....  Many respondents who said Trump should be incarcerated cited basic fairness: They were sentenced to prison time for their crimes, so Trump should be, too. “The law should be the great equalizer,” one respondent wrote. “No one should be above another in terms of the range of punishments nor given leniency simply because they’re a certain way (I.e. richer or a celebrity).”

For others, incarceration was a strategic choice. If the former president goes to prison, maybe he would be compelled to make changes when gets out. “Donald Trump needs to see with his own eyes what normal people suffer here in prison, and how unjust is all the laws and the prison system,” one respondent wrote.

Compared to people outside prison, incarcerated survey respondents were more inclined to be lenient toward Trump. Only a third of incarcerated people surveyed thought he should be sentenced to prison for his crimes, compared to about half of people on the outside, according to an Associated Press poll. Even those who disliked Trump cited their feelings about prison being harmful as a reason to oppose his incarceration.

October 17, 2024 in Campaign 2024 and sentencing issues, Elections and sentencing issues in political debates, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Wednesday, October 16, 2024

"Grants Pass And The Pathology Of The Criminal Law"

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

Last Term, the Supreme Court held that cities may, consistent with the Eighth Amendment, criminalize sleeping in public, even for people who have no other alternatives.  That decision, Grants Pass v. Johnson, ostensibly rests on a formalistic distinction between criminalizing status, such as the status of homelessness, and criminalizing conduct, such as sleeping in public.  This distinction fatally undermines the Eighth Amendment’s “status crimes” doctrine.  The majority opinion has been decried by homeless advocates as inhumane and counterproductive, and the case produced a pointed dissent that has been lauded by court watchers.

As this Essay explains, however, the outcome in Grants Pass was necessitated not by the merits of a thin status–conduct distinction, but by judicial deference to an ever-expanding criminal law.  The dissent’s preferred interpretation of the Eighth Amendment (in which the laws at issue impermissibly punish the “status” of homelessness) arguably implicates three distinct constitutional claims: one about the wrongfulness of punishing status, one about the wrongfulness of punishing involuntary conduct, and one about the wrongfulness of punishing in the absence of culpability.  Once disaggregated, each of those claims proves to be in tension with contemporary criminal practices — neither status, nor involuntariness, nor lack of culpability currently prevents the infliction of criminal punishment.  In other words, the dissent’s preferred interpretation would have unsettled a considerable amount of criminal law. Grants Pass can therefore best be understood as revealing the Supreme Court’s reticence to check states’ expansive — and expanding — approach to criminal liability.

So understood, the Grants Pass case provides an important supplement to the literature on criminal law’s political pathology, demonstrating that a federal constitutional solution is likely out of reach under the current court.  Just as legislatures and prosecutors drive expansive criminalization, expansive criminalization narrows the range of constitutional remedies, even for obvious injustices such as punishing the unhoused for sleeping.  Prescriptively, the Essay calls for homeless advocates to step away from the Eighth Amendment and toward doctrines — particularly under state constitutions — that more explicitly engage with the agency of unhoused individuals.

October 16, 2024 in Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Split Nebraska Supreme Court orders Secretary of State to implement new state law enfranchising persons with felony convictions

As report in this NBC News article, the "Nebraska Supreme Court ruled that convicted felons who served their sentences are allowed to vote, after the state's top election official sought to keep them from casting ballots ahead of the Nov. 5 election." Here is more about this ruling:

Nebraska has historically restored the voting rights of former felons two years after they completed the terms of their sentences. Earlier this year, state legislators voted on a bipartisan basis to eliminate the two-year waiting period. Nebraska Attorney General Mike Hilgers later argued that only the state’s board of pardons could restore voting rights, and Nebraska Secretary of State Robert Evnen ordered local registrars to stop letting all people with previous felony convictions vote, arguing the laws enfranchising them were unconstitutional.

On Wednesday, Nebraska's top court disagreed, writing that state officials had not convinced them the law, known as L.B. 20, was unconstitutional. “The Secretary is ordered to remove any disqualification on registration he has imposed that is not contained within L.B. 20 and to comply in all respects with the provisions of L.B. 20,” the state’s high court wrote in an order.

The full ruling in State ex Rel. Spung v. Evnen, 317 Neb. 800 (Neb. Oct. 16, 2024) (available here), is quite lengthy, in part due to many concurring and dissenting opinions. Here is how the per curiam majority opinion for the court gets started:

The Nebraska Secretary of State (Secretary) announced in the summer of 2024 that he would not implement recent statutory amendments providing that individuals who have been convicted of felonies are eligible to vote as soon as they complete their sentences.  The Secretary took the position that the statutory amendments were unconstitutional. Individuals who were convicted of felonies and who had completed their sentences responded by filing this action in which they seek a writ of mandamus directing the Secretary and two named county election commissioners to implement the 2024 amendments and allow them to register to vote.  Because the requisite number of judges have not found that the statutory amendments are unconstitutional, we issue a peremptory writ of mandamus directing the Secretary and the election commissioners to implement the statutory amendments immediately.

October 16, 2024 in Collateral consequences, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, October 15, 2024

"Excessive Force In Prison"

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

Any time a correctional officer (CO) physically assaults someone in prison, their conduct demands an especially compelling justification and robust ex post scrutiny.  Instead, governing Eighth Amendment doctrine almost entirely defers to COs’ own judgments as to the need for force.  This highly deferential approach is especially ill advised given the institutional culture of the modern American prison, which systematically demonizes and dehumanizes people in custody and thus primes COs to use violence unnecessarily.  Even a standard of “objective unreasonableness” would not suffice to prevent case outcomes from reflecting a callous indifference to the safety of people in prison.  What is needed instead is a reasonableness standard explicitly framed in terms of the state’s obligations to the incarcerated.

This Article makes the case for such a morally robust reasonableness standard and develops an account of both the normative foundations for this approach and the principles that ought to guide, not only factfinders in individual cases, but all actors in a position to shape carceral policy.  What drives the inquiry — and sets it apart from the Supreme Court’s own treatment of the constitutional claims of people in custody — is the attention paid to the concrete realities of the modern American prison. The current Supreme Court is unlikely to regard with sympathy the account offered here.  But it remains open to the rest of us to insist that the Eighth Amendment’s prohibition on cruel and unusual punishment has meaningful moral content beyond the narrow, often pinched reading that currently shapes the legal doctrine. 

This Article is intended as part of this larger project of self-conscious moral reclamation. Its animating goals are: to expose the deep flaws in the governing law, to excavate the normative content of Eighth Amendment limits on the state’s power to inflict criminal punishment, and in the process to provide a reinvigorated moral vocabulary for understanding and challenging the use of violence by state officials against the fellow human beings they are sworn to protect. In these ways, this enterprise has considerable overlap with the growing national effort to set moral limits on police violence.

October 15, 2024 in Prisons and prisoners, Who Sentences | Permalink | Comments (1)

New Prison Policy Initiative report, "One Size Fits None: How ‘standard conditions’ of probation set people up to fail"

Writing for the Prison Policy Initiative, Emily Widra has this notable new report titled "One Size Fits None: How ‘standard conditions’ of probation set people up to fail." The report's extended subtitle summarizes its coverage: "Courts and probation agencies impose a standard set of rules on everyone under their supervision, before tacking on any extra restrictions.  Our national review finds these mandatory rules are often unnecessarily burdensome and incredibly vague, making it all too easy to 'fail' at probation and land behind bars."  The full report is worth a full read, and here is how ite gets started (with links from the original):

More than 1 in 10 people admitted to state prisons every year have committed no new crime, but have simply broken one or more of the many conditions, or rules, of their probation.  All of this unnecessary incarceration is the predictable result of widely-adopted probation conditions that are so vaguely defined, so burdensome, and so rigidly applied that they actually broaden the scope of what counts as “recidivism.”  Through these conditions, courts and probation authorities create punishable offenses that go far beyond criminal law, setting people up to fail.  And because the vast majority of people under correctional control are on probation — 2.9 million people, far surpassing the 1.9 million people incarcerated — these trap-like conditions make probation a major driver of mass incarceration, not the “alternative” it’s supposed to be.

Shrinking the massive probation system — and the number of people incarcerated from community supervision — is central to ending mass incarceration.  Doing so requires challenging existing “standard conditions” that (a) are often in conflict with one another, (b) exacerbate the challenges people on probation are already facing, and (c) empower probation officers — rather than courts — to make subjective decisions that can lead to revocation and incarceration. Examining these conditions clarifies why probation often functions as an on-ramp to incarceration instead of an alternative, and can help advocates and policymakers reorient probation systems away from incarceration.

Unfortunately, standard probation conditions are often difficult to locate and parse, vary between jurisdictions, and use complicated and unclear language, so to aid in this effort, we collected and analyzed the standard conditions for 76 jurisdictions across all 50 states and Washington, D.C., creating one of the most comprehensive compilations of these rules to date.

October 15, 2024 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

A couple more GVRs and lots more cert denials in second full SCOTUS order list of OT 2024

The Supreme Court formally entered its second week of its new term, October Term 2024, with this order list mostly defined by a long list of cert denials.  The order list begins with two new G(ranted), V(acated), R(emanded) cases perhaps of note, with one citing Rahimi and another citing Erlinger

Late last week, John Elwood had this long post at SCOTUSblog reviewing relists drawing from the last order list titled "Fourteen cases to watch from the Supreme Court’s end-of-summer "long conference'."  Here was the one sentencing case of particular note from his accounting (which included three other criminal procedure cases among his "cases to watch"):

Last up is Esteras v. United States. In setting forth factors a court may consider in revoking a term of supervised release and ordering a person to serve a prison sentence for violating a supervised-release condition, the supervised-release statute, 18 U.S.C. § 3583(e), cross-references some, but not all, subprovisions of 18 U.S.C. § 3553(a). Congress omitted the factors set forth in Section 3553(a)(2)(A) — the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense. Edgardo Esteras contends that five courts of appeals, including the 6th Circuit in his case, have concluded that district courts may rely on the Section 3553(a)(2)(A) factors, but four other courts of appeals have concluded that they may not. The government contends that courts can properly consider such factors and that “[a]ny modest disagreement among the courts of appeals on the question presented has no practical effect.”

Esteras is not on the list of cert denials this time around, so that is a case to continue to watch.

October 15, 2024 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, October 14, 2024

"Plea Bargaining in Homicide Cases: An Empirical Exploration in One State"

The title of this post is the title of this new article by Michael O'Hear and Darren Wheelock now available via SSRN. Here is its abstract:

Even the most serious criminal cases are often resolved through plea bargaining, with potentially dramatic consequences for the sentence ultimately imposed.  In Wisconsin, the most serious type of homicide is a Class A felony, which results in a mandatory life sentence.  However, many individuals who are initially charged with the Class A offense are given the opportunity to plead guilty to a lesser Class B offense, which does not trigger any mandatory minimum sentence at all.

In this Article, we compare the characteristics of the cases in which the defendant pleads guilty to a Class A offense (a relatively harsh outcome) with the characteristics of the cases in which the defendant pleads guilty to a Class B offense (a relatively lenient outcome).  We find statistically significant differences between these two sets of cases in such areas as county of prosecution, appointed versus private-pay defense lawyer, and gender of defendant, victim, prosecutor, and defense lawyer.

October 14, 2024 in Data on sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Noting struggles with case-processing due to prosecutor shortages from coast-to-coast

As the start of this year, Stateline has this article about criminal justice staffing shortages headlined "Shortage of prosecutors, judges leads to widespread court backlogs: The pandemic worsened problems that already had caused state and local court delays."  That article focused particularly on developments in Georgia, New York and Vermont, but some more recent press pieces from a number of states showcase that this is a nationwide problem.  A brand new piece from Alaska, noted below, led me to notice similar tales from multiple states in press pieces from earlier this year:

From Alaska, "Domestic Violence, Child Abuse and DUI Cases Are Being Dismissed en Masse in Anchorage"

From Arizona, "Attorneys raise concerns over slow moving cases, how Pima County Attorney is addressing shortage of prosecutors"

From Indiana, "Prosecutor says Indiana is facing an attorney shortage"

From Maine, "Staffing shortage blamed for lack of prosecutions of crimes in western Maine"

From Michigan, "New state funding not enough to solve shortage of prosecutors, counties say"

From Nebraska, "Rural NE county attorneys, public defenders confront ‘legal desert’ in hiring new lawyers"

From South Carolina, "Thousands await trial in SC on years-old charges. AG proposes way to clear cases"

I have long surmised that government prosecutors and public defenders generally share the privilege of being underpaid and overworked, while both are absolutely essential to the administration of justice in our legal systems.  And I sense these staffing problems are particularly acute in rural areas, especially as new generations of lawyers seem particularly drawn to city life and practice.  What this might mean long term for our criminal justice systems merits watching carefully.

October 14, 2024 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (6)

Sunday, October 13, 2024

"Categorical Declinations & Democracy"

The title of this post is the title of this new paper now available on SSRN authored by Brenner Fissell. Here is its abstract:

The most contentious action taken by reform prosecu­tors has been the issuance of categorical declination policies. Opponents decry this as bureaucratic nullification­ of democratically enacted offenses, while the prosecutors themselves counter that they are responding to the will of their local electorate.  Democracy claims, it appears, have taken center stage in this debate, and they are deployed by both sides.  How should we think about democracy and categorical declinations?  The most comprehensive scholarly work on this subject is a 2021 article by Professor Kerrel Murray.  In this essay, I hope to continue the work begun by M­urray, offering additional insights that bear on the relationship of categorical declinations and democracy.

Most significantly, I aim to bring to this conversation the tools of deliberative democratic theory — a vision of democracy that is extremely influential, but not taken up by Murray.  Viewing deliberation as the touchstone of democracy, as this theory does, has implications for both (1) the institutional site for decriminalization decisions, and (2) the type of offenses that might be legitimately decriminalized by declination.  State legislatures are structurally superior deliberative bodies, but local prosecutors can ameliorate their deliberative deficits by seeking ratification of their decisions by local legislatures.  Moreover, deliberation rests on a deeper commitment to the mutual respect for the freedom and equality of other persons, and this commitment suggests that there is an upper limit on the severity of crimes that can be legitimately declined.  Declination of serious offenses asks too much of the state-level co-citizens who enacted the offenses, in that it asks them to abandon their reciprocal concern for the lives of their local brethren. Conversely, reciprocal concern suggests that purely victimless crimes can be subject to declination with far less democratic concern, as there is no co-citizen whose basic liberties are infringed through the elimination of the protection of the law.  The actual practice of reform prosecutors appears to treat crime severity as an important consideration, as no prosecutor has attempted to decriminalize a serious felony.

October 13, 2024 in Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Saturday, October 12, 2024

With eight more executions scheduled, 2024 could conclude with most US executions in nearly a decade

I flagged here last month that a flourish of executions in multiple states had been scheduled over just a week, and all five of those executions were ultimately carried out.  I now see from this Death Penalty Information Center page that eight more executions are scheduled for the final few months of 2024.  If seven of those executions go forward as planned, the US will have completed 26 total execution in 2024, which would be more than in any calendar year since 2015.

Of course, 26 executions in a year is still a relatively paltry number in America's capital punishment history.  In the 1930s, for example, the US averaged well over 150 executions per year.  And from 1995 to 2014, the US states executed, on average, 56 persons per year, and hit a modern peak of 98 executions in 1999.  Still, I find it fascinating that state executions were trending down in the final years of the Trump Administration and now are trending up in the final years of the Biden Administration.  These trends seem especially notable given that candidate Joe Biden pledged to work to "eliminate the death penalty."    

Writing at Inquest, Lee Kovarsky highlights in this new essay how this year's presidential election could prove an inflection point in modern capital punishment history.  The substitle of the piece captures its main theme: "The presidential candidates are worlds apart on the death penalty. The winner could either jolt or sap the energy of the movement to end it."

October 12, 2024 in Data on sentencing, Death Penalty Reforms, Who Sentences | Permalink | Comments (2)

Friday, October 11, 2024

Intriguing (though likely doomed) effort to alter South Carolina clemency process by condemned inmate

This new AP article reports on an interesting claim brough by a condemned inmate in South Carolina.  Here are the details:

A South Carolina inmate scheduled to be executed in just over three weeks is asking a federal judge to take away the power of granting clemency from the governor who is a former state attorney general and place it with a parole board.  The South Carolina constitution gives the governor the sole right to spare an inmate’s life, and Gov. Henry McMaster’s lawyers said he intends to retain it.

Lawyers for Richard Moore are arguing that McMaster cannot fairly consider the inmate’s request to reduce his death sentence to life without parole because for eight years starting in 2003 he was the state’s lead prosecutor and oversaw attorneys who successfully fought to uphold Moore’s death sentence. “For Moore to receive clemency, McMaster would have to renounce years of his own work and that of his former colleagues in the Office of the Attorney General,” the attorneys wrote in asking a federal judge to pause the execution until the matter can be fully resolved.

McMaster has taken tough-on-crime stances and also in the past said he is against parole. The governor said in 2022 that he had no intention to commute Moore’s sentence when an execution date was a possibility, Moore’s attorneys said in court papers filed Monday.

Lawyers for McMaster said he has made no decision on whether to grant Moore clemency, and courts have repeatedly said attorneys general who become governors do not give up their rights to decide whether to set aside death sentences.  Currently, nine states, including South Carolina, are run by former attorneys general.  Among the top prosecutors cited by the state who later become governors and made decisions on clemency is former President Bill Clinton in Arkansas....

Moore, 59, is facing the death penalty for the September 1999 shooting of store clerk James Mahoney. Moore went into the Spartanburg County store unarmed to rob it, and the two ended up in a shootout after Moore was able to take one of Mahoney’s guns. Moore was wounded, while Mahoney died from a bullet to the chest. Moore didn’t call 911. Instead, his blood droplets were found on Mahoney as he stepped over the clerk and stole money from the register.

State law gives Moore until Oct. 18 to decide or by default that he will be electrocuted.  His execution would mark the second in South Carolina after a 13-year pause because of the state not being able to obtain a drug needed for lethal injection.  No South Carolina governor has ever granted clemency in the modern era of the death penalty.  McMaster has said he decides each case on its merits after a through review....

McMaster has said he will follow longtime tradition in South Carolina and wait until minutes before an execution is set to begin to announce whether he will grant clemency in a phone call prison officials make to see if there are any final appeals or other reasons to spare an inmate’s life.

And his lawyers said his decision on whether to spare Moore life will be made under a different set of circumstances than his decision to fight to have Moore’s death sentence upheld on appeal. “Clemency is an act of grace,” the governor’s attorneys wrote. “Grace is given to someone who is undeserving of a reprieve, so granting clemency in no way requires the decisionmaker to ‘renounce’ his previous work.”

Notably, a divided Supreme Cout in Ohio Adult Parole Authority v. Woodard interpretation the Constitution to mean that "some minimal procedural safeguards apply to clemency proceedings." But I would be shocked if that precedent (or any others) will enable the condemned defendant to prevail in this case.

October 11, 2024 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Wednesday, October 09, 2024

Supreme Court reveals (predictable) split during argument on Glossip capital case

Supreme Court watchers who know the current Justices' patterns, especially in capital cases, would have expected Justices Barrett and Kavanaugh to be likely key swing votes in the Glossip case argued today (previewed here).  This round-up of some press accounts of today's Glossip argument suggest those Justices are likely to deterimine the case's fate:

From NPR, "Okla. AG seeks new trial for death row inmate, but Supreme Court seems split"

From SCOTUSblog, "No clear decision as justices debate Richard Glossip’s death sentence"

From the New York Times, "Splintered Supreme Court Wrestles With Case of Oklahoma Death Row Inmate"

From the Washington Examiner, "Supreme Court appears divided over Oklahoma death row appeal"

From the Washington Post, "Supreme Court closely divided on new trial for Oklahoma death row inmate"

October 9, 2024 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

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

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

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

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

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

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

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

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

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

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

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

October 9, 2024 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, October 08, 2024

"On the Importance of Listening to Crime Victims . . . Merciful and Otherwise"

The title of this post is the title of this new essay authored by Paul Cassell recently posted to SSRN. Here is its abstract:

What role should mercy play in the criminal justice system?  While several of the other symposium’s articles here in the Texas Law Review argue for expanding mercy’s role, I write to raise a cautionary note.  Expanding mercy could potentially conflict with another important feature of contemporary criminal justice: the expanding role of crime victims.  Because considerations of mercy focus exclusively on the offender, greater attention to mercy necessarily means less attention to victims.  This change in focus would be at odds with a broadly advancing crime victims’ movement in this country and, indeed, in many countries around the world.

This cautionary point does not assume that all crime victims want a more punitive criminal justice system.  To the contrary, many crime victims may argue for mercy.  But allowing victims’ voices to carry weight only when they advance merciful arguments is inconsistent with the underlying rationale for victim involvement: that victims should have agency to advance their own claims in criminal justice processes.

October 8, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

Previewing SCOTUS's latest Glossip argument

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

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

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

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

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

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

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

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

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

October 8, 2024 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Monday, October 07, 2024

"Pointing the Way... In the Wrong Direction: the Model Penal Code: Sentencing's Errant Approach to Restorative Justice and Its Role in Sentencing"

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

The Model Penal Code: Sentencing (MPCS) represents a missed opportunity to make restorative justice a foundational element of sentencing.  This Article identifies seven of the main shortcomings in the MPCS’s approach to restorative justice.

First, the MPCS relegates restorative justice to the periphery of sentencing, excluding it from its list of primary sentencing purposes and only authorizing courts to “experiment” with restorative justice.  Second, the MPCS perpetuates the current norm in which sentencing systems fail to meet what victim-survivors have indicated are their principal needs in the aftermath of a crime.  Third, the MPCS fails to recognize that restorative justice is evidence-based, making assumptions and assertions about restorative justice that the research on restorative justice contradicts.  Fourth, the MPCS perpetuates the patronizing treatment of victim-survivors, overriding what victim-survivors have said are their paramount needs and allowing prosecutors and judges to bar victim-survivors’ access to a restorative process.  Fifth, the MPCS is discordant, spurning, for example, restorative justice for reasons that would disqualify other sentencing goals the MPCS embraces. S ixth, by failing to recognize restorative justice as a critical component of sentencing, the MPCS undercuts other of its sentencing goals, including the goals of proportionality in sentencing and future crime avoidance.  Seventh, and most fundamentally, the MPCS reflects a lack of understanding about what restorative justice is and how it is an aid, not a threat, to a court’s sentencing authority.

This Article concludes with recommendations to dissipate the potential inhibiting effect the MPCS might have on the spread and advancement of restorative justice in the United States.

October 7, 2024 in Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (4)

Noting some interesting data around Colorado's Proposition 128 to restrict parole eligibility

Though California’s Proposition 36, the "Drug and Theft Crime Penalties and Treatment-Mandated Felonies Initiative," is arguably the biggest 2024 sentencing-related ballot initiative (discussed here), voters in Colorado also have a notable sentencing-related initiative to consider this fall.  Proposition 128 in Colorado, "Concerning Eligibility for Parole," is described by Ballotpedia this way:

A "yes" vote supports requiring offenders convicted of certain violent crimes on or after January 1, 2025, to serve at least 85% of their sentence before parole eligibility, and offenders with two prior violent crime convictions to serve their full sentence before beginning parole.

A "no" vote opposes making changes to parole eligibility, thereby maintaining current law providing parole eligibility to individuals convicted of certain violent crimes after completing 75% of their imposed sentence minus any time earned off of the sentence for good behavior.

This lengthy Denver Post piece discusses this initiative along with another focused on police funding under the headline "Should Colorado spend $350 million on police and require more prison time for some criminals? Voters will decide." Here is an excerpt discussing Prop 128:

People sentenced to prison in Colorado typically serve less than half of their total sentences before they are released on parole, state data shows. State law requires prisoners to serve at least 75% of their sentences, but that time can be reduced further if prisoners maintain good behavior while incarcerated — a reduction known as “earned time” or “good time.”

People convicted of Class 2 felonies — the second-most serious felony in Colorado — on average were sentenced to 28 years in prison and served 13 years before they were released, according to Colorado Department of Corrections data for the 2022 fiscal year. That’s about 46% of their sentences.

For certain crimes, Proposition 128 would change state law by increasing the amount of time a person must serve in prison to 85% of their sentence before the person could be eligible for earned-time reductions or parole.

The change would apply only to a handful of convictions beginning Jan. 1: second-degree murder, first- or -second-degree sexual assault, aggravated robbery, first-degree assault, kidnapping, first-degree arson and first-degree burglary.  Additionally, people convicted of a third crime of violence — a wider swath of crimes — would be ineligible for any type of early release and would be required to serve an entire sentence on their third conviction....

[P]roponents of the ballot measure say the extra prison time would improve public safety by keeping what Fields called the “worst of the worst” offenders in prison longer.  But opponents say that position is not supported by evidence, and they say earned time is a powerful incentive for prisoners to participate in rehabilitation while incarcerated.

Prisoners who can’t earn good time will feel more despair and be more likely to participate in violent and dangerous behaviors, said Dana Mueller, a Colorado Department of Corrections release case manager.  She spoke on behalf of her union, Colorado Workers for Innovative and New Solutions, which has come out against Proposition 128. “This would not reduce recidivism or crime, and it wouldn’t fix what is wrong in corrections,” she said. “Instead, it would make things worse, making conditions more dangerous both for workers and the inmate population.”...

If Proposition 128 passed, it would affect roughly 220 prison sentences annually.  The financial impact would come in about 20 years, when the longer time served by some inmates would add to the prison population — increasing state spending on prisons by an estimated $12 million to $28 million, state analysts found.

October 7, 2024 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

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

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

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

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

October 7, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, October 04, 2024

Supreme Court grants cert on 13 new matters, with a few of possible interest for sentencing fans

The US Supreme Court's new season, known as October Term 2024, officially gets started on Monday with oral arguments in two cases raising technical procedural issues.  But, for SCOTUS watchers, today feels like openning day because the Justices this morning released this big new order list detailing all the cases for which it granted cert following its "long conference" earlier this week. 

By my quick count, the Court appears to have granted cert on 15 cases to deal with 13 issues.  (In two instances, the Justices formally granted cert in two cases but consolidated the pair for oral argument.)  And from my too-quick review, it seems that there are four cases involving criminal law issues (or criminal-law adjacent), though is seems technical procedural issues may be at the heart of a couple of them. 

The only pure criminal case appears to be Thompson v. US dealing with what constitutes a "false statement" to sustain a federal bank fraud conviction.  But Fourth Amedment fans will certainly be excited because Barnes v. Felix takes on, in the context of a civil rights suit, the so-called "moment of the threat" doctrine in assessing excessive force claims under the Fourth Amendment. 

Technicalities come to the fore in Perttu v. Richards, another civil rights case, this one involving a state prisoner dealing with when the Prison Litigation Reform Act requires a prisoner to exhaust administrative remedies prior to securing a jury trial.  And in Gutierrez v. Sanz, a capital case, deals with standing issues in conjunction with efforts by a defendant to secure post-conviction DNA testing.

This AP piece previewing cases on the SCOTUS docket before today suggested the Term looks like it could be "relatively sleepy." None of these new grants, either in the criminal cases or any of the others, seems to be much of a wake-up call. But with a major election and a presidential tradition transpiriting in the next few months, I doubt there will be much dozing off among Justice or advocates in the Term to come  

October 4, 2024 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (13)

Making a robut case for robust legal representation for the incarcerated

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

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

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

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

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

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

October 4, 2024 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, October 03, 2024

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

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

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

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

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

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

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

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

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

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

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

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

October 3, 2024 in Celebrity sentencings, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Rounding up some recent coverage and commentary on Prop 36 in California

The most significant sentencing-related ballot initiative in the 2024 election cycle is California’s Proposition 36, titled "Drug and Theft Crime Penalties and Treatment-Mandated Felonies Initiative. This initiaitive is summarized by Ballotpedia this way:

A "yes" vote supports making changes to Proposition 47 approved in 2014, including: classifying certain drug offenses as treatment-mandated felonies; increasing penalties for certain drug crimes by increasing sentence lengths and level of crime; requiring courts to warn individuals convicted of distributing illegal drugs of their potential future criminal liability if they distribute deadly drugs like fentanyl, heroin, cocaine, and methamphetamine; and increasing sentences for theft based on the value of the property stolen.

A "no" vote opposes this initiative that makes changes to Proposition 47 (2014), thereby maintaining certain drug and theft crimes as misdemeanors.

I have recently noticed more press outlets discussing and advocating around Prop 36, and here is an abridged review of just some of the coverage and commentary catching my eye:

From Cronkite News, "California’s Prop. 36, which would again toughen criminal penalties, sparks debate"

From LAist, "California Proposition 36: Increases criminal penalties for certain drug and theft crimes"

From Lookout Santa Cruz, "California voters consider tough love for repeat drug offenders with Prop 36"

From the Los Angeles Times, "Endorsement: No on Proposition 36. California shouldn’t revive the disastrous war on drugs"

From the Orange Country Register, "Prop. 36 is a common sense solution to the suffering on our streets"

From Reason, "Should California Vote To Roll Back Criminal Justice Reforms?"

From the San Diego Union Tribune, "Endorsement: Yes on Proposition 36: Time to free the detergent"

October 3, 2024 in Campaign 2024 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)