Sentencing Law and Policy

Spotlighting notable sentence reduction for prisoner sexually abused by multiple BOP guards

This new NPR piece, headlined "Prison sexual assault victims can now petition for compassionate release," highlights a recent grant of a sentence reduction under 3582(c)(1)(A) for a prisoner who was repeatedly sexually abused by federal prison guards.  Here are the particulars and some broader context:

For years, Aimee Chavira suffered sexual abuse in a Dublin, Calif., federal prison by the officers responsible for protecting her. Now, thanks to a program known as compassionate release, she is free. And her freedom could help pave a similar path for other people who experienced physical or sexual assault behind bars.

"We are very hopeful that this can lead to more women who were abused at Dublin getting out," said Erica Zunkel, Chavira's lawyer.

Chavira, 44, has been home for less than two weeks after learning her request for compassionate release had been granted by a federal judge. Those petitions allow people in prison the chance to convince a court they should be freed because of extraordinary and compelling circumstances.

Typically, those cases involve terminal illness or other dire medical conditions. In April, the U.S. Sentencing Commission, a federal body that sets advisory guidelines, voted to expand the bases for compassionate release to include sexual and physical assault by prison workers.

Chavira reported her abuse to a psychologist and a warden at the Federal Correctional Institution, Dublin. But they did nothing. The warden later was convicted of sexual abuse and lying to the FBI. Five other officials have been charged with sexually abusing women at the facility, in what became known as a so-called "Rape Club." One of them, John Bellhouse, was convicted this week on charges that include sexual abuse of an incarcerated person.

Chavira said she knows women from the Dublin prison who have been moved to other facilities, where they continue to suffer retaliation and face trauma. "This is just one prison that's coming out to the light," she said. "What's happening in all the rest of the prisons with the rest of the people that don't have any help or a voice?"

Last year, a bipartisan probe by the Senate Permanent Subcommittee on Investigations found widespread sexual abuse by officers in federal prisons with few consequences for those officers....

Zunkel, the associate director of the Federal Criminal Justice Clinic at the University of Chicago Law School, said it's important that Chavira and other survivors of assault get released as soon as possible. "The experts confirm it doesn't matter if you're moved to a different prison, it doesn't matter if they're offered the very best therapy possible, the Bureau of Prisons is a fundamentally unsafe place for a survivor of sexual violence to recover from," Zunkel said.

In Chavira's case, prosecutors did not object to her request for compassionate release....

Chavira said she's determined to speak out for all the people she met in prison who are still experiencing abuse and poor conditions behind bars. "There is no help, if you went in in one piece, you're coming back out in a million pieces, because you're beyond broken," she said. For now, she said she intends to get stronger emotionally and "show everybody, you know, I went through this, and I got out of it."

The short ruling granting compassionate release is available here and the detailed motion filed by Erica Zunkel on behalf of Aimee Chavira is available here.

"Plea Bargaining Abolitionism: A History"

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

How does a tragedy on the scale of mass incarceration happen?  Scholarship has focused on the carceral appetite of politicians, criminal justice practitioners, and the public. R ightly so, but mass incarceration took more.  On paper, American law has a built-in check on carceral appetites: a labor-intensive system of criminal adjudication via trials. Yet as mass incarceration wreaked havoc in the 1980s and beyond, that system barely registered.  It had been supplanted, over the previous century, by a form of adjudication far better suited to punitive fervor.  Plea bargaining enabled mass incarceration.  If only Americans had been warned about plea bargaining before it was too late, maybe the catastrophe could have been avoided.

Except that they — we — were warned.  In the 1970s, an unlikely assortment of academics, prosecutors, judges, and even a Nixon-administration crime commission sought to rally the country to abolish plea bargaining.  While they did not speak in unison, they were united by a conviction that the system of plea bargaining that had matured in mid-century American courts was fundamentally unjust.

Plea bargaining abolitionists in the 1970s tried to tell us that something basic had gone wrong with the criminal process.  Perhaps predictably, the broader legal profession didn’t heed the warning.  When prosecutors and judges attempted to formally ban plea bargaining — as they did in Alaska, El Paso, and elsewhere — other prosecutors and judges, joined by defense lawyers, found ways to circumvent them.  And when scholars and politicians decried the injustice of plea bargaining, they were told to be more realistic.

A long-form account of one small part of modern stories about compassionate release for dying federal prisoners

Anyone interested at all in the topic of compassionate release should be sure to make time to read this extended account of one federal prisoner's quest to help fellow prisoners secure end-of-life sentence reductions. This piece by Anna Altman for The Atavist Magazine is fully titled "The Quality of Mercy: Gary Settle has helped dozens of federal prisoners get compassionate release. Will it ever be his turn to go home?". Here is one small snippet of very long piece that is worth the time to read in full:

Compassionate release is grounded in the idea that changes to a person’s health may weaken the justification for their incarceration.  What reason is there for imprisoning someone with Alzheimer’s when he no longer understands that he is being punished?  When someone with late-stage liver disease can’t get out of bed and is no longer a threat to society?  When “rehabilitation” is no longer feasible because a person has advanced cancer?  “We’re not doing any social good, if we were in the first place, in keeping them locked up,” [FAMM's Mary] Price said.  “And we can do a great deal of good in terms of helping people repair relationships and comfort each other and say goodbye.”

There is also a financial calculus that works in the BOP’s favor, one noted prominently in a 2013 DOJ report on compassionate release: It’s almost always cheaper to release sick people than to keep them locked up until they die.  One study found that the annual cost of caring for just 21 seriously ill prisoners in California was almost $2 million per person, while the median per capita cost of nursing home care in the state was $73,000 per year.

After a judge allowed [terminal cancer patient R.] Smith to go home, Settle noticed a shift at Butner.  He later wrote an email to FAMM, trying to put into words what he was witnessing.  “In this place of death and dying, among incarcerated men who are holding on to life with nothing but more cells, more keys, more misery in their future, your efforts are having real, tangible results.  Your efforts are giving hope,” he wrote.  “You are giving life back to people, and you are giving them the most precious gift of all, time. Time to heal old wounds, to take a last breath of freedom and to leave this world with peace and dignity.”

FAMM worked closely with Settle through the summer and fall of 2019 to help people at Butner.  “We didn’t appoint him,” Price said. “He appointed himself.”  Settle made copies of FAMM’s newsletter and distributed them to his neighbors.  He kept an eye out for people whose health was worsening and approached those he thought might qualify for compassionate release.  He told them what he knew about the First Step Act, which he had studied, and about the Compassionate Release Clearinghouse.  He spent six to eight hours a day requesting medical records, addressing envelopes, and updating his contacts on the outside about various cases.  Settle read medical records, cross-referencing terms with a diagnostic manual and a medical encyclopedia he’d ordered, so he could send the most pertinent information about sick prisoners to their lawyers.  Before long his cell was covered with piles of paper.

Settle also relayed information from incarcerated individuals to their family members.  He helped people who were too sick to make it to a computer, those who had been transferred off-site for care, and others who had never learned to read or write.  Sometimes he wrote compassionate release requests himself, parroting the language he had seen in other applications.  The ones that went to the BOP were all but certain to be rejected or ignored, but that was part of the process: For a prisoner to file a motion directly with a judge, they first had to “exhaust administrative remedies,” in legal parlance.

Word got around Butner about what Settle was doing.  He would leave his cell after a nap to find four or five guys gathered outside, some of them in wheelchairs with paperwork in their laps.  He was willing to assist just about anyone — he said he only refused people convicted of sex crimes.  “Gary is able to form relationships with all kinds of people,” said Juliana Andonian, an attorney who used to work at FAMM.  “He didn’t want to make himself the center of the story.  That was really notable, the lack of ego.”

It isn’t uncommon for people in prison to help one another with legal matters.  Jailhouse lawyers — some with legal training, some without—review statutes in a prison’s law library, file paperwork, and perform other tasks for fellow prisoners, often for a fee or some other form of compensation.  “Someone less sincere could make a lot of money or do a lot of harm,” Andonian said.  Settle refused payment, even to cover the cost of emails he sent and phone calls he made.  The mother of a man Settle helped go home remembered sending him a thank-you note.  “That’s about all he let me send him,” she said.

One day a thought dawned on Price.  “He is doing this job that the Bureau of Prisons should be doing,” she said.  “They should be moving heaven and earth to be sure that people are connected to family and loved ones when they’re near the end of their lives.”

Top-side SCOTUS briefs in Pulsifer address FIRST STEP Act's expansion of statutory safety valve

Though we still await opinions in a number of criminal justice cases this SCOTUS Term (which all should be decided in the next few weeks, some details here), I am already excited for the fascinating little sentencing case the Justices already have on tap for next Term.  As flagged here, the Justices in late February granted certiorari in Pulsifer v. United States.  Stated in a pithy way, the issue in Pulsifer is whether the word "and" as used in the FRIST STEP Act's expansion of the mandatory minimum statutory safety valve actually means "and" or might instead mean "or." 

As I have noted before, federal criminal justice practitioners and sentencing fans should be following Pulsifer closely because its resolution will impact how thousands of drug defendants are sentenced in federal courts every year.  And statutory construction gurus should also be interested in how Pulsifer addresses statutory issues related to textualism, plain meaning and the rule of lenity.  

Though SCOTUS oral argument in Pulsifer will not be scheduled until October of November, the first set of briefs were filed in the last few weeks.  Specifically, SCOTUSblog has assembled on this Pulsifer case page the merits brief filed by Mark R. Pulsifer as well as four distinct amici briefs (three in support of Pulsifer and one in support of neither party).  The briefs all make for interesting reads and reinforce my sense that Pulsifer will be a fun one at oral argument and beyond.

Split state appeals court finds "no evidence" supporting California Gov's rejection of parole for "Manson family" member

As reported in this AP piece, "California appeals court said Tuesday that Leslie Van Houten, who participated in two killings at the direction of cult leader Charles Manson in 1969, should be let out of prison on parole." Here is more about a notable high-profile ruling:

The appellate court's ruling reverses an earlier decision by Gov. Gavin Newsom to reject parole for Van Houten in 2020. She has been recommended for parole five times since 2016. All of those recommendations were rejected by either Newsom or former California Gov. Jerry Brown, with the latest such rejection coming in March of 2022.

California Attorney General Rob Bonta could ask the California Supreme Court to stop her release. Neither his office nor Newsom's immediately responded to requests for comment on whether they would do so.

Van Houten, now in her 70s, is serving a life sentence for helping Manson and other followers kill Leno LaBianca, a grocer in Los Angeles, and his wife Rosemary.  Van Houten was 19 at the time.  Newsom has said that Van Houten still poses a danger to society. In rejecting her parole, he said she offered an inconsistent and inadequate explanation for her involvement with Manson at the time of the killings.

The Second District Court of Appeal in Los Angeles ruled 2-1 to reverse Newsom's decision, writing there is "no evidence to support the Governor's conclusions" about Van Houten's fitness for parole.  The judges took issue with Newsom's claim that Van Houten did not adequately explain how she fell under Manson's influence.  At her parole hearings, she discussed at length how her parents' divorce, her drug and alcohol abuse, and a forced illegal abortion led her down a path that left her vulnerable to him.  They also argued against Newsom's suggestion that her past violent acts were a cause for future concern were she to be released.

The full 67-page opinion from the Second District Court of appeals can be found at this link. Here is part of the start of the opinion from the majority:

We review the Governor’s decision under the highly deferential “some evidence” standard, in which even a modicum of evidence is sufficient to uphold the reversal. Even so, we hold on this record, there is no evidence to support the Governor’s conclusions.

Van Houten provided extensive explanation as to the causative factors leading to her involvement with Manson and commission of the murders, and the record does not support a conclusion that there are hidden factors for which Van Houten has failed to account.  The Governor’s refusal to accept Van Houten’s explanation amounts to unsupported intuition.  The Governor’s finding of inconsistencies between Van Houten’s statements now and at the time of the murders fails to account for the decades of therapy, self-help programming, and reflection Van Houten has undergone in the past 50 years.  The historical factors identified in the criminal risk assessment are the sort of immutable circumstances our Supreme Court has held cannot support a finding of current dangerousness when there is extensive evidence of rehabilitation and other strong indicators of parole suitability, all of which Van Houten has demonstrated.

"Examining Remorse in Attributions of Focal Concerns During Sentencing: A Study of Probation Officers"

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

This research, using interviews with probation officers in the United States (N = 151) and a constant comparative method for analysis, draws from the focal concerns framework to qualitatively model a process by which probation officers use a defendant’s remorse to attribute focal concerns in order to guide their sentencing recommendations in pre-sentencing reports.  The model suggests that officers use expressions of remorse to make attributions about mitigated criminal intention (blameworthiness and notions of responsibility), reduced dangerousness and a high potential for reform (community protection), and organization-level effects for increasing caseload efficiency and using correctional resources (practical effects of sentencing).  Then, officers appear to use attributions from two remorse-guided focal concerns (blameworthiness and community protection) to directly advise their recommendations for more lenient sentencing outcomes.  Finally, as probation officers also described feeling sincerely responsible for providing critical information to the court about a defendant’s background and remorse, contributions and implications of this model for criminal sentencing are discussed.

New comments from Justice Breyer on punishment, sentencing, prisons, the death penalty and more

The Marshall Project has just released this notable and lengthy Q&A with retired SCOTUS Justice Stephen Breyer, which covers a number of topic that should be of interest to sentencing fans.  For full context and coverage, everyone should check out the full piece.  Here are just a few snippets that especially caught my eye:

Once, years ago, I asked Norm Carlson, who was a very distinguished and really well-respected head of the Bureau of Prisons.  We worked on the original [Sentencing Commission] guidelines.  We were talking about recidivism.  And I said, “Well, Norman, you’ve had years of experience.  You're very, very respected. If it were up to you, what would you do to reduce recidivism rates?”  And he said, as I recall, “To be honest, I don't know.”

And so people have all kinds of ideas, and it's worth trying different ones.  But it's hard to do.  It's hard — very, very hard — to do. The [federal sentencing] guidelines were an effort — and still are an effort — to have fairer sentences, to allow the judges to understand the sentence they give will be the sentence that’s served, and moreover, [to] try to prevent wide discrepancies for the same crime, same kind of criminal across the country in different places.  So how well has that succeeded?  Like most things in the criminal law, up to a point. And I think with experience over time, perhaps it will be better....

[The death penalty] is so unfairly administered.  There's neither rhyme nor reason.  The whole point of this criminal justice system is fairness. Is justice.  That's why it's called “criminal justice.”  And that is not an oxymoron, at least in theory.  So when I see that time after time, after time — I'm not saying “You're all innocent.”  But there are a couple of cases where I really wonder.

I thought, “What can I do?” It's not a big deal for the world that I would go out and announce I'm against the death penalty.  I want to do something, if I'm going to do this, that really explains what I've seen.  And that's what I tried to do in Glossip.  And it tries to explain to other people, who can explain it to state legislatures.  And all it is, is what I've seen over a couple of decades.  And by the way, it's going to get awful expensive.  Why reconsider it?  Because you can't have both: a system that is basically fair, a system that works honestly, a system that tries to treat people equally, and also have a death penalty, as I've seen it over 20 years.

"Restorative Justice as a Democratic Practice"

The title of this post is the title of this new article recently posted to SSRN authored by Daniel McConkie.  Here is its abstract:

Our criminal justice system, to be truly democratic, should be more responsive to those most affected by it, and this calls for significant participation from citizens.  Unfortunately, the state-centered, professionalized system sidelines citizens at every stage, failing to give them voice and power.  Instead, the system should be consistent with criminal justice citizenship, which refers to the rights and privileges of ordinary people to participate directly in certain aspects of the criminal justice system and to deliberate in some of its workings.  That form of citizenship is essential to democracy, or rule by the people.

Restorative justice, especially where it is centered in community courts, is an ideal reform to strengthen criminal justice citizenship, and therefore democracy itself.  Restorative justice seeks to address and repair crime’s harms through a deliberative process that fosters mutual understanding and acceptance of responsibility; involves the stakeholders of crime directly in the process; posits a smaller role for the state; and promotes the rehabilitation and reintegration of wrongdoers into civil society.  Restorative justice strengthens democracy by fostering each of the three key aspects of criminal justice citizenship.  First, restorative justice can provide many opportunities for lay participation and collective civic action to address not only individual crimes but also broader issues in a community. Second, restorative justice processes foster deliberation.  They give voice to the key stakeholders and encourage dialogue, understanding, collaboration and creativity in repairing harms.  Third, restorative justice strengthens membership, which refers to citizens’ belonging to a community as civic equals.  It does so by inviting key stakeholders, broadly defined, to play a role in seeking to repair the harms of crime.  This promotes a shared commitment to the social order and accountability to others.

In order to realize the benefits of restorative justice as a democratic practice, reformers should continue to promote grassroots community court experiments that involve as many stakeholders as possible.  These experiments can help to reduce the size of the carceral state.

New GOP Prez candidate DeSantis pledges to repeal FIRST STEP Act

I noted in this post a few month ago a press report that Florida Gov Ron DeSantis was planning to assail former Prez Trump for his support of the FIRST STEP Act back in 2018. And, sure enough, with days of announcing his candidacy for President, Gov DeSantis has attacked Trump's signature criminal justice reform achievement. This Fox News piece, headlined "Ron DeSantis rips Trump over First Step Act, vows to repeal it: 'Basically a jailbreak bill'," provides these details:

Republican presidential candidate and Florida Gov. Ron DeSantis vowed Friday to seek a repeal of President Trump's signature First Step Act, a bipartisan criminal justice reform bill that aimed to reduce recidivism, allowed a pathway for non-violent prisoners to shorten their sentences, and reduced mandatory minimum sentences.

"Under the Trump administration — he enacted a bill, basically a jailbreak bill, it's called the First Step Act. It has allowed dangerous people out of prison who have now re-offended, and really, really hurt a number of people," DeSantis said in an interview with the Daily Wire.

"So one of the things I would want to do as president is go to Congress and seek the repeal of the First Step Act. If you are in jail, you should serve your time. And the idea that they're releasing people who have not been rehabilitated early, so that they can prey on people in our society is a huge, huge mistake," he added.

DeSantis voted for the first version of the bill as a member of the House of Representatives in 2018, the same year he was elected as Florida's governor, but had resigned before the final, more moderate version of the bill came to a vote in the chamber.

Trump's campaign responded to DeSantis by pointing to his original vote, and argued he was basically criticizing his own supporters in Congress who also voted for the bill. "Lyin' Ron. He voted for the First Step Act. Would be a shame if there was video of him praising it in an interview with a local FL television station..." Trump campaign spokesperson Stephen Cheung tweeted following the DeSantis' interview.

"DeSantis supporter [Rep. Thomas Massie, R-Ky.] voted for the bill as well. DeSantis is calling out his own Congressional supporters and throwing them under the bus," he later added in a separate tweet.

Catching up, yet again, with a big bunch of relisted acquitted conduct petitions pending before SCOTUS

Over at SCOTUSblog, John Elwood has his latest "Relist Watch" posting, and this new post is titled "Acquitted-conduct sentencing returns."   As regular readers know, I have been following a number of cert petitions challenging the practice of judges increasing sentences on the basis of conduct on which a defendant was acquitted; I also filed an amicus brief in one of the cases (in support of petitioner Dayonta McClinton).  The SCOTUSblog post provides this effective review of where matters now stand (links from the original):

Back in January, we noted that the Supreme Court had relisted five petitions challenging the constitutionality of the controversial practice of acquitted-conduct sentencing. (Disclosure: I represent the petitioner in one of those cases.) Under it, the fact that a jury has acquitted a defendant of criminal conduct doesn’t end the risk that he or she will be punished for that conduct; so long as the defendant is convicted of any criminal offense, punishment for that offense can be enhanced to account for the conduct of which the person was acquitted. In 1997’s United States v. Watts, the Supreme Court in a summary per curiam opinion held that such enhancements do not violate the double jeopardy clause. Largely based on Watts, every federal court of appeals has rejected challenges brought under the Fifth Amendment due process clause and the Sixth Amendment’s jury trial guarantee. But some state courts have held the practice is unconstitutional, and a host of prominent jurists, including Justices Antonin Scalia, Ruth Bader Ginsburg, and Clarence Thomas, have criticized the practice.

After that single January relist, the court held those five cases for several months, apparently waiting to see whether the United States Sentencing Commission would act on a proposal that would have placed modest limits on the ability of federal sentencing judges to enhance sentences based on acquitted conduct. The Sentencing Commission recently decided not to act on that proposal this year, although it intends to try again next year. Some of the challengers argue that the Supreme Court should not wait for the Commission to act, because its proposals place only minor restrictions on the practice, and most acquitted-conduct sentences are imposed in state courts beyond the reach of the Commission. Moreover, the challengers note, the federal government argues that the Commission lacks authority to place restrictions on acquitted-conduct sentencing, because 18 U.S.C. § 3661 bars the imposition of restrictions on the information about the background and conduct of defendants that courts can consider.

The Supreme Court has relisted those original five cases a second time now. And they are joined by an additional eight cases raising the same (or closely analogous) issues. We’ll find out soon how lucky these 13 petitions are.

The next order list will be Tuesday morning, May 30, when I just happen to have something else of even more importance to attend to.  Since I will likely be unable to blog for most of Tuesday, I have already predicted to some colleagues that there will be all sorts of SCOTUS acquitted-conduct action that day.  We shall see, and I will surely get to catch up on blogging at some point.

A few recent of many, many prior related posts:

• "Acquitted Conduct Should Not Be Considered At Sentencing"
• Split Michigan Supreme Court finds due process precludes use of acquitted conduct at sentencing 
• "Acquitted. Then Sentenced."
• NJ Supreme Court holds, as a matter of state constitutional law, that "fundamental fairness" precludes sentence enhancement based on acquitted conduct 
• Might SCOTUS finally be ready to take up acquitted conduct sentencing enhancements?
• Hoping and pushing for SCOTUS finally taking up acquitted conduct sentencing enhancements 
• After US Sentencing Commission deferred on issue, Supreme Court back to conferencing acquitted conduct cases 

Former Alabama Govs now urge the commutation of most of Alabama's death row

Through this recent Washington Post opinion piece, headlined "We oversaw executions as governor. We regret it.", former Alabama governors Robert Bentley and Don Siegelman explain why they would now be eager to commute most of the state's death row. Here are excerpts from the start and end of the piece:

Alabama has 167 people on death row, a greater number per capita than in any other state. As far as the two of us are concerned, that is at least 146 people too many. Here’s why.

As former Alabama governors, we have come over time to see the flaws in our nation’s justice system and to view the state’s death penalty laws in particular as legally and morally troubling. We both presided over executions while in office, but if we had known then what we know now about prosecutorial misconduct, we would have exercised our constitutional authority to commute death sentences to life....

As governors, we had the power to commute the sentences of all those on Alabama’s death row to life in prison. We no longer have that constitutional power, but we feel that careful consideration calls for commuting the sentences of the 146 prisoners who were sentenced by non-unanimous juries or judicial override, and that an independent review unit should be established to examine all capital murder convictions.

We missed our chance to confront the death penalty and have lived to regret it, but it is not too late for today’s elected officials to do the morally right thing.

This piece perhaps provides yet another data point in support of the so-called "Marshall hypothesis," the idea Justice Thurgood Marshall articulated in his Furman opinion that persons learning more about the administration and effects of capital punishment will come to reject it.  It also provides another data point for the reality that it seems much easier for politicians to turn against the death penalty once they are former office holders.

Deep dives in "back-end" sentencing problems in two east coast states

Today brought the release of two notable reports on problematic back-end sentencing practices in two states.  Both reports merit more careful attention that this one post can provide, but here are the basics:

From the Prison Policy Initiative, "Excessive, unjust, and expensive: Fixing Connecticut's probation and parole problems."  A snippet:

This report provides lawmakers and advocates fundamental information to advance essential probation and parole reforms in Connecticut, changes that will reduce unnecessary incarceration and supervision; increase fairness, justice, and public safety; and save taxpayer dollars and other resources.  The report reviews the policies and data related to community supervision and technical violations in Connecticut and describes concrete ways to improve these systems. It also gives an overview of New York’s recent parole reforms, with recommendations for lawmakers and others working to shape meaningful legislation in Connecticut and beyond.. Given the immediate and ongoing signs of success in New York, any state can look to the provisions of the Less Is More Act to help determine ways to reduce excessive supervision and incarcerated populations.

What follows is a deep dive into the policies and practices that entangle too many people in the web of ongoing supervision and cycles of imprisonment in Connecticut. Those who are on probation and parole live in fear of arrest and incarceration for nearly any action that could constitute a violation — a gross misuse of resources and a disservice to families in Connecticut.  By allowing people to remain in their communities, the state can better provide residents the help they may need in the place where they’re most likely to succeed. Connecticut has a momentous opportunity to reshape the probation and parole systems and deliver racial, economic, and procedural justice to people under supervision.

From the Justice Policy Initiative, "Safe at Home: Improving Maryland’s Parole Release Decision-Making." A snippet:

This document highlights the best available research and practice in the parole field and provides recommendations for improvements to Maryland’s parole decision-making process. To develop these recommendations, JPI consulted with experts who provide technical assistance to states looking to improve their parole practices, reviewed research on parole practice and outcomes, spoke with attorneys who assist individuals applying for parole, consulted with family members and individuals who have experience with the Maryland parole system, and examined best practices in parole in other states to identify areas of needed improvement in Maryland....

The parole grant rate decreased between 2020 and 2021 despite the emergence of COVID-19 in early 2020.  Many jurisdictions around the country expedited the release of individuals from prison to reduce the spread of the virus. This was typically accomplished by moving up parole eligibility by months and expanding the number of people eligible for a hearing.  However, Maryland data reveal sharp declines in newly eligible individuals, hearings, and the releases granted.

Grant rates in Maryland follow a bell curve pattern. Emerging adults (25 years of age and younger) report a grant rate of 37 percent.  The rate increases to a high of 43 percent for people between the ages of 31 and 35, steadily declining as individuals age. People over 60 are paroled at a rate of 28 percent.  Parole grant rates that decline with age run counter to everything we know about trends in criminal offending.  Crime is a young person’s endeavor, and the likelihood of reoffending drops precipitously after age 40.  

Fascinating tale of a singular federal prosecution (and notable sentencing) of DC marijuana distributors

A helpful reader made sure I did not miss this new and lengthy story from the Washington Post concerning a federal prosecution and sentencing of modern marijuana offenders.  The full headline highlights some of the notable particulars: "D.C. legalized weed. A marijuana delivery service was indicted anyway.  A judge refused to hand out prison sentences and urged officials to resolve the tension between local legalization and federal prohibition."  I recommend the story, which defies easy summary in full to anyone interested in marijuana reform and prosecutorial (and judicial) decisions issues.  Here are just some snippets:

Connor Pennington always knew he would start his own business, though he wasn’t sure what type....  When nearly 65 percent of D.C. voters approved Initiative 71 in 2014, legalizing the recreational use of marijuana, the 29-year-old found “what I truly believe is my calling,” he said: distributing pot.  He named the company Joint Delivery.

Although he knew marijuana sales were illegal under federal law, Pennington created a website where customers could place orders, and he had delivery workers fan out daily in bikes or cars.  Hoping to create a professional atmosphere, he hired middle managers and a full-time accountant.  The company generated at least $4 million in sales from 2017 to 2022, according to court records....

In July 2022, Pennington, two younger brothers he had hired and five Joint Delivery managers were indicted — the first and so far only D.C. marijuana dispensary to face federal prosecution since Initiative 71 passed. In a related case, Pennington’s accountant was charged with money laundering....

“This is a strange kind of case, because the substance that’s involved is legal in many, many states now. It’s not in the federal system,” U.S. District Judge Leonie M. Brinkema said at a hearing May 2. “This disparity has got to get worked out soon because it creates a crazy situation in the law enforcement area.”

The DEA twice raided Joint Delivery’s offices in D.C. last year, finding cash, marijuana and cannabis products, according to the indictment.  All nine defendants pleaded guilty to money laundering or conspiring to distribute a dangerous substance and were ordered to forfeit the money they earned.

But they never set foot in a D.C. courthouse, and none went to prison.  The top federal prosecutor in the District, U.S. Attorney Matthew M. Graves, declined to prosecute Joint Delivery and generally does not seek charges against any of the dozens of marijuana “gifting” shops and delivery services in the city, despite occasional police raids, according to U.S. officials and defense attorneys involved in the Joint Delivery case.

Instead, all the charges against Pennington and his employees were filed by the U.S. attorney’s office for the Eastern District of Virginia (EDVA), led by Jessica D. Aber.  Prosecutors said they had jurisdiction mainly because much of the money laundering occurred in Northern Virginia.  But legal experts and the judge who handled most of the case said they were puzzled by the move, because the drug distribution that prosecutors described happened in D.C.

“I don’t think this case truly belonged here,” Brinkema said at a hearing in Alexandria federal court on Jan. 6, after chiding a prosecutor in Aber’s office for seeking a “completely inappropriate” sentence of four years and nine months in prison for one of Pennington’s shift managers, Robert Spear, who was 27 years old at the time.

The judge sentenced all of those indicted to terms of supervised release of two or three years. “It was always amazing to me that the District of Columbia, where this business essentially was, was not interested in the prosecution of this case,” Brinkema said at one of the final sentencings.

"Risk Averse and Disinclined: What COVID Prison Releases Demonstrate About the Availability of the United States to Reduce Mass Incarceration"

The title of this post is the title of this notable new report authored by Julia Laskorunsky, Kelly Lyn Mitchell and Sandy Felkey Mullins released today by the Robina Institute of Criminal Law and Criminal Justice. Here is the Executive Summary from the 70+ page report:

This report examines the challenges and opportunities that states faced in deciding whether to release people from prison during the COVID-19 pandemic.  It focuses on the legal mechanisms available to jurisdictions and the factors that influenced whether they were willing or able to use those mechanisms to release people from prison.

Our goal is to illuminate whether back-end release mechanisms can be used to reduce prison populations that have been bloated by the policies of the mass-incarceration era or whether relief from mass incarceration must take some other form.

The report presents case studies of six states — Alabama, Illinois, Kansas, Minnesota, Pennsylvania, and Washington — to gain a more in-depth view of how events unfolded during the pandemic.  Overall, our study found that the number of individuals released early from prisons during the pandemic was limited due to a variety of factors, including politics, risk-averse decision-making, shifting external pressures, the limited scope of compassionate and medical release statutes and the use of discretion to deny release.  In addition, few changes to policy or practice that occurred during the pandemic had a lasting impact on back-end release practices.

We conclude that the back-end release mechanisms offer only a modest opportunity to reduce mass incarceration, and the current system is unlikely to make a substantial difference in addressing mass incarceration due primarily to risk aversion.  Instead, state-level carceral policies that focus on diffusing responsibility for back-end release and that reduce incarceration in the first place have the greatest chance of achieving long-term reductions in prison populations.

Marijuana legalization in Minnesota includes creation of expungement board to aid reforms and collect data

In a couple of articles (see here and here, also flagged below), I have advocated that modern marijuana reform efforts should include the creation of a new criminal justice institution, which I have called a "Commission on Justice Restoration."  As explained most succinctly in this commentary, I suggest this institution be funded by the taxes generated by marijuana reforms and be tasked not only with helping those previously convicted of marijuana offenses, but also with addressing the undue harms of a wide array of prior convictions.  In my vision, this Commission on Justice Restoration could assemble hard-to-collect data about convictions and collateral consequences, conduct and disseminate research on the fiscal and social costs of these collateral consequences, and advocate for legal and court reforms to advance sound record relief practices.

Sadly, no state has yet to embrace my vision for creating a Commission on Justice Restoration.  But, excitingly, the version of marijuana reform about to be signed into law in Minnesota (basics here) includes the creation of criminal justice reform infrastructure that certainly is in the spirit of my proposal.  Specifically, this reform law provides for the creation of what is called the Cannabis Expungement Board, which is described a bit at this new official Minnesota website:

The legislation calls for automatically expunging low-level cannabis convictions and for creating a Cannabis Expungement Board, which will review felonies for expungement or resentencing.  Expungement seals a person’s conviction record, making the record not publicly accessible from the Bureau of Criminal Apprehension. Sealing records is intended to remove barriers for people with cannabis-related offenses who are subject to a background check for a job or housing....

The Cannabis Expungement Board will consist of the following members:

• the Chief Justice of the Supreme Court or a designee
• the Attorney General or a designee
• one public defender, appointed by the Governor upon recommendation of the State Public Defender
• the Commissioner of Corrections or a designee
• one public member with relevant experience, appointed by the Governor

This local press piece provides some more details about the remedial marijuana efforts called for in the new Minnesota law:

What crimes would be expunged under the bill?

Minnesotans with misdemeanor marijuana charges would see their records cleared, and a new Cannabis Expungement Board would evaluate expungement for felony marijuana crimes on a case-by-case basis.

How many Minnesotans would be eligible for expungement?

More than 60,000 misdemeanor marijuana cases would be eligible for automatic expungement when the bill is signed into law, the Minnesota Bureau of Criminal Apprehension (BCA) estimates.  That includes cases the defendant won or had dismissed, wiping out all records of offenses from arrest to sentencing.  The BCA told lawmakers that it could take the agency up to a year to finish expunging all of the misdemeanor records.

The BCA doesn't have an estimate for the number of felony-level marijuana cases that would qualify for review by the Cannabis Expungement Board, a spokeswoman said.  That's because the state's criminal history system is unable to sort felony-level drug cases by the type of drug that was used.  A manual review of felony cases would be required.

I am going to be very interested in following the work of Minnesota's Cannabis Expungement Board.  Perhaps if all goes well, Minnesota might give this board responsibility to advance expungements and resentencings more generally.

Prior related writings:

• "Leveraging Marijuana Reform to Enhance Expungement Practices" (from 2018)
• "How States Can Ensure That Today's Marijuana Reforms Also Ameliorate Harms Inflicted on Past Offenders" (from 2018)
• "Ensuring Marijuana Reform Is Effective Criminal Justice Reform" (from 20202)

Based on state's new Racial Justice Act, state judge throws out gang enhancements after finding “significant statistical disparity”

This local article, headlined "Judge finds Contra Costa DA’s filing practices are racist, dismisses gang charges in murder case," reports on an interesting new ruling from a California state judge relying on an interesting new California law. Here are some details:

In an unprecedented ruling statewide, a Contra Costa judge on Friday dismissed gang charges against four men under the California Racial Justice Act, ruling that county prosecutors have disproportionately targeted Black people with sentencing enhancements that open the door for life in prison without parole.

It is a case already under heavy scrutiny because two of the defendants were directly referenced in racist text messages sent by Antioch police officers who investigated their alleged crimes. The texts — part of a much larger scandal involving racism, alleged civil rights violations and dozens of impugned officers — made light of injuring the men during their arrests and referred to Black people in explicitly biased, hateful ways.

Contra Costa Judge David Goldstein’s Friday ruling did not take into consideration any of the racist texts. Rather, Goldstein based it on a decade of data — what he called a “significant statistical disparity” — showing that gang charges are more often filed against Black people. The stunning development clears the way for any Black person who has faced or is facing those charges in Contra Costa over the past decade to challenge them in court....

In making his decision Friday, Goldstein relied on data that both prosecutors and defense attorneys largely agreed upon that showed that Black people were from 6 to 8 percent more likely to be charged with “special circumstance gang enhancements” than people who weren’t Black.  Those enhancements, alleging gang membership and added on top of the underlying criminal charges at issue in a case, can greatly increase the sentence a defendant receives.

Goldstein threw out the gang enhancements against four East Bay men — Eric Windom, Terryon Pugh, Keyshawn McGee and Trent Allen — who are accused of fatally shooting a man to benefit an Oakland gang.  His ruling does not affect the murder, attempted murder and conspiracy counts against them.

Friday marks the second time that prosecutors in Contra Costa have made California history for violating the Racial Justice Act.  Last October, Judge Clare Maier ruled that a county prosecutor used “racially coded language” that “evoked racial stereotypes of African American men” during a two-defendant murder trial and threw out murder convictions for both men.

Maier’s ruling dealt specifically with a portion of the act that refers to the prosecution’s statements during trial, while Goldstein’s ruling cited a different subsection that covers the charging practices of an entire DA’s office.

Evan Kuluk, a lawyer with the county’s Alternate Defender’s Office and an attorney in both cases, told this news organization that “the impact of today’s ruling is an acknowledgement that racial bias infects every stage of the criminal legal process.”

Goldstein’s ruling calls into question dozens of other similar cases filed in Contra Costa, going back 10 years. Contra Costa DA Diana Becton — the first Black person and first woman ever to serve in that role in the county’s 173-year history — says her office now plans to look back at some of those cases with this new ruling in mind....

For many defense attorneys in Contra Costa, Friday’s ruling was a seen as vindication after years of calling on Contra Costa prosecutors to audit their own filing decisions.  In 2019, Becton partnered with the Vera Institute for a project intended to identify implicit bias in the way cases are prosecuted but has yet to release the underlying data.  Chief Public Defender Ellen McDonnell said Goldstein’s ruling “drives home the unfair charging practices that too often result from the role of implicit bias in our legal system.”

"The Public Voice of the Defender"

The title of this post is the title of this new article available via SSRN authored by Kay Levine and Russell M. Gold.  Here is its abstract:

For decades police and prosecutors have controlled the public narrative about criminal law — littering the news landscape with salacious stories of violent crimes while ignoring the more mundane but far more prevalent minor cases that clog the court dockets.  Defenders, faced with overwhelming caseloads and fear that speaking out may harm their clients, have largely ceded the opportunity to offer a counternarrative based on what they see every day. Defenders tell each other about overuse of pretrial detention, intensive pressure to plead guilty, overzealous prosecutors, cycles of violence, and rampant constitutional violations — all of which inflict severe harm on defendants and their loved ones.  But defenders rarely show the public the world they inhabit.

That approach hasn’t stopped the carceral state from ballooning over the past fifty years; public defense budgets remain paltry, and clients suffer from too much law and too little justice in a system that disregards and dehumanizes them.  This Article encourages defenders to go on the offensive, to seek transformative change toward a more just legal system.  It builds on the social media literature to analyze how defenders can strategically use social networking sites to add their expertise to ongoing public debates about crime and criminal justice policy.  As a few existing efforts suggest, social media enables defenders to widely share the routine injustices they observe and to engage with local grassroots organizations to build coalitions.  Defenders’ strategic use of social media won’t change policies overnight, but we are hopeful that it will augment public support for defenders and their clients and build power to transform the criminal legal landscape over decades.

Minnesota through new legislation becomes 28th state to prohibit juve LWOP

Via email from The Campaign for the Fair Sentencing of Youth, I learned this afternoon that "Minnesota has officially become the 28th state to ban juvenile life without parole as an omnibus public safety bill (SF 2909) was signed by Minnesota Governor Walz after passing through the Minnesota Senate and House of Representatives." This Equal Justice Initiative piece provides some details and context:

Minnesota lawmakers this week abolished life imprisonment without parole for children. The reform is part of a public safety bill designed to transform the state’s approach to children accused of criminal offenses.

The bill not only retroactively eliminates juvenile life-without-parole sentences but also provides that children sentenced in adult court will be eligible for supervised release after at least 15 years in prison.

A newly created Supervised Release Board will be required to consider an expert assessment of the individual’s cognitive, emotional, and social maturity as well as relevant science on children’s neurological development.

Approximately 40 people will be eligible for review, University of Minnesota law professor Perry Moriearty told the Star Tribune.

The new law also creates a statewide Office of Restorative Practices to promote alternative, community-based approaches to hold children accountable, respond to victims’ needs, and address the issues underlying children’s behavior.

State grants will be provided to counties to develop local restorative justice initiatives, such as victim-offender dialogues and family group conferences, with input from parents, youths, school administrators, county prosecutors, and local law enforcement.

LawProf Mark Osler has this Twitter thread about the public safety bill that was just signed into law in Minnesota, and it highlights some other interesting sentencing features (among many others):

The bill restructures clemency. Among other features, the Pardon Board (the Gov, AG & Chief Justice) can grant clemency by a 2-1 vote with the gov in the majority. Previously, it required a unanimous vote. It also establishes a clemency commission to evaluate cases....

Adds members to the board of public defense and to the sentencing commission (including a formerly incarcerated member)....

Creates an avenue for prosecutor-initiated re-sentencing.

Caps probation at 5 years, and makes that cap retroactive for those already sentenced....

Establishes good-time credits for those in prison who pursue programming and education (up to 17% of a sentence can be earned), on top of the 1/3 of sentences that already are presumptively on supervised release.

Intriguing report that Trump legal team believes Apprendi can require downgrading his NY criminal charges

A helpful colleague made sure I did not miss this new Daily Beast article headlined "Trump’s New Ploy to Knock the Manhattan DA’s Case Down to Misdemeanors."  Here is how the piece starts:

When the Manhattan District Attorney finally indicted former President Donald Trump in March, Alvin Bragg made the curious decision to not detail Trump’s crimes in the official indictment — something critics seized on almost immediately to say this was an overblown case.

While previous investigators had wrestled with how to charge Trump with felonies, Bragg overcame that hurdle by essentially charging Trump with 34 misdemeanor counts of faking business records — then leveling them up to felonies in a parallel legal document.  Under New York law, faking business records is only a felony if it’s done while committing another crime.  In this case, prosecutors say Trump hid his 2016 porn star hush money payment in order to break election laws, therefore the 34 counts of taking business records become felonies.

But according to a source familiar with the Trump legal team’s internal discussions, the former president’s lawyers are now exploring how to use that otherwise ingenious move as a weakness to severely power down the case.  And Trump’s lawyers believe their new tactic could force the DA to reconsider if this is a fight worth having.  Their legal strategy all comes down to a Supreme Court case where a white guy in New Jersey got drunk and shot at a Black family’s home in 1994 — and then managed to get hate crime charges overturned.

Trump’s lawyers are eyeing the 2000 SCOTUS decision Apprendi v. New Jersey, which stressed the importance of putting in an indictment all the aspects of a crime that could enhance penalties.

Here is more:

When Trump was arraigned in criminal court in April, his defense lawyer Joe Tacopina assured reporters this case would “never” make it to trial.  And the Trump team’s new potential tactic threatens to downgrade the severity of the case before it ever reaches a jury, which could force the DA to consider whether a case full of misdemeanors justifies an expensive prosecution.

The legal precedent Trump’s team is considering is also buttressed by a 1999 Supreme Court decision, Jones v United States, which decided that “any fact other than prior conviction that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt.”

If Trump’s team successfully uses that defense strategy, it would be an embarrassing defeat for Bragg, who could have just as easily put all the information about the case that was included in the “Statement of Facts” in the indictment and avoided this whole mess.

"What If Criminal Lawmaking Becomes Trustworthy?"

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

One common theoretical perspective posits that courts should assume a counter-majoritarian role in criminal law because the political process systematically disfavors the interests of criminal suspects and defendants.  Recent shifts in the politics of crime, however, complicate this perspective’s assumptions, raising the paradoxical possibility that welcome improvements in the politics of crime will weaken the theoretical case for counter-majoritarian judicial decisions.  This essay tentatively considers whether, if at all, courts’ interpretive approach should change in response to any continuing moderation of historic “tough on crime” politics.  It suggests that while arguments for narrow construction of criminal statutes will remain strong for the foreseeable future, a more moderate and competitive politics of crime could justify greater judicial deference, at least at the margins and in some limited circumstances, to democratic choices regarding criminal procedure.

Notable sentencing research in recent special issue of "Law and Human Behavior"

I just tripped across the February 2023 issue of the journal "Law and Human Behavior," which is labeled as "Special Issue: Racial Justice in the Criminal Justice and Legal Systems."  This issue has lots of notable research, and sentencing fans might be especially interested in these pieces:

"The trial tax and the intersection of race/ethnicity, gender, and age in criminal court sentencing" by Peter S. Lehmann

"The eye of the beholder: Increased likelihood of prison sentences for people perceived to have Hispanic ethnicity" by Erik Girvan and Heather Marek

"Does 'Jamal' Receive a Harsher Sentence Than 'James'? First-Name Bias in the Criminal Sentencing of Black Men" by Dushiyanthini (Toni) Kenthirarajah, Nicholas P. Camp, Gregory M. Walton, Aaron C. Kay and Geoffrey L. Cohen

A couple of notable new international death penalty stories

A couple of new headlines and Associated Press stories concerning the application of the death penalty worldwide caught my attention this morning.  Here are links and the essential:

"Singapore hangs 2nd citizen in 3 weeks for trafficking cannabis despite calls to halt executions":

Singapore on Wednesday hanged another citizen for trafficking cannabis, the second in three weeks, as it clung firmly to the death penalty despite growing calls for the city-state to halt drug-related executions....  Under Singapore laws, trafficking more than 500 grams (1.1 pounds) of cannabis may result in the death penalty....

Singapore executed 11 people last year for drug offenses after a two-year hiatus due to the COVID-19 pandemic.  The hanging of one particular Malaysian believed to be mentally disabled sparked an international outcry and brought the country's capital punishment under scrutiny for flouting human rights norms.

"Executions worldwide rose dramatically in 2022, Amnesty International reports":

Executions worldwide increased by 53% in 2022 from a year earlier, with a significant rise in Iran and Saudi Arabia, Amnesty International said in an annual report Tuesday that also criticized Indonesia as having one of the highest numbers of new death sentences in Asia.

Amnesty said 70% of the executions in the Middle East and North Africa were carried out in Iran, where their numbers rose by 83% from 314 in 2021 to 576 in 2022.  The number of executions in Saudi Arabia tripled from 65 in 2021 to 196 in 2022.

Watching a quartet of SCOTUS criminal justices cases as the Term starts to wind down

As has been true in the last few Terms, the current Supreme Court Term is almost certain to be remembered for decisions outside the core realm of criminal justice.  But it has still already been an interesting SCOTUS Term for hard-core criminal justice fans with seemingly lots of (small?) wins for criminal defendants in cases like Reed, Cruz, Ciminelli, and Percoco.  Of course, the "easy" cases tend to be resolved first, and I would not expect quite so many wins for criminal defendants in the weeks ahead.  

By my rough count, there are still around ten still-pending criminal justice (or criminal-justice-related) cases for the Justices still to resolve before they head off for their summer vacations.  All the remaining cases could prove interesting and consequential, but here are four remaining cases that have most captured my attention (with help from this SCOTUSblog list):

Jones v. Hendrix, No. 21-857 [Arg: 11.1.2022]

Issue(s): Whether federal inmates who did not — because established circuit precedent stood firmly against them — challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under 28 U.S.C § 2241 after the Supreme Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.

 

Dubin v. U.S., No. 22-10 [Arg: 2.27.2023]

Issue(s): Whether a person commits aggravated identity theft any time they mention or otherwise recite someone else’s name while committing a predicate offense.

 

Counterman v. Colorado, No. 22-138 [Arg: 04.19.2023]

Issue(s): Whether, to establish that a statement is a "true threat" unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective "reasonable person" would regard the statement as a threat of violence.

Tyler v. Hennepin County, Minnesota, No. 22-166 [Arg: 04.26.2023]

Issue(s): (1) Whether taking and selling a home to satisfy a debt to the government, and keeping the surplus value as a windfall, violates the Fifth Amendment's takings clause; and (2) whether the forfeiture of property worth far more than needed to satisfy a debt, plus interest, penalties, and costs, is a fine within the meaning of the Eighth Amendment.

I would welcome in the comments any predictions about likely outcomes in these cases and/or the flagging of other pending criminal-justice-related cases from this Term that folks are keeping a close eye on.  We are not quite to the final stretch of the SCOTUS Term, but there are opinions coming this Thursday and likely just about every week from now until the end of June.

Lots of sentencing coverage as part of Season 1 of "Drugs on the Docket" podcast

I am extremely pleased to highlight that the Drug Enforcement and Policy Center at The Ohio State University has now officially launched Season One of a new podcast, "Drugs on the Docket."  All six episodes of this season are available on Apple Podcasts, Google Podcasts and YouTube.  My colleagues at DEPC have worked remarkably hard to put this content together, and I hope folks find the curated discussions interesting and informative.

Here is how the podcast subject matter is described via this podcast webpage along with episode titles:

Drugs on the Docket is a production of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University. Each episode explores how U.S. court rulings — primarily those handed down from the Supreme Court — impact drug law and policy and continue to shape the War on Drugs.  Drugs on the Docket unpacks various ways courts have engaged with and responded to the opioid epidemic, police discretion, the sentencing disparities between crack and powder cocaine, and more.  The series, hosted by Hannah Miller, invites guests with expertise in criminal justice, drug policy, and drug enforcement to help us break down the sometimes complex and always interesting stories behind today’s drug law landscape.

Drugs on the Docket is produced by DEPC’s Service Engagement Project Manager Hannah Miller and Public Engagement Specialist Holly Griffin.  DEPC Executive Director Douglas A. Berman is our editorial advisor.  Music by Joe DeWitt.

Episode 1 – Federal drug sentencing and the evolution of the crack to powder cocaine ratio with Mark Osler

Episode 2 – Ruan v. United States and the intersection of healthcare, criminal law, and the opioid crisis with Jenn Oliva and Kelly Gillespie

Episode 3 – A Special Conversation with former Supreme Court of Ohio Chief Justice Maureen O’Connor

Episode 4 – United States v. Angelos, federal mandatory minimums, and sentencing reform with Weldon Angelos and Paul Cassell

Episode 5 – Data and storytelling in federal drug sentencing and the U.S. Sentencing Commission with Doug Passon and Mark Allenbaugh

Episode 6 – Whren v. United States, Terry v. Ohio, and the Fourth Amendment with Gabriel “Jack” Chin

In helping with this effort, I came to realize fully just how much work is involved in podcast production.  Still, if this first season finds an audience, we may soon begin the hard work of producing another season.  And so recommendations for fitting topics and guests are welcome.

US Sentencing Commission publishes detailed retroactivity analysis for its amendments to federal guidelines' criminal history rules

In this post last month, I provided some details on the US Sentencing Commission's proposed consequential amendments to alter how criminal history is assessed and calculated under the federal sentencing guidelines. The big ticket items in the proposed amendments concern "status points" and "zero-point offenders"; as detailed here, the Commission has officially sought comment on whether it should make these key parts of its new criminal history amendment "available for retroactive application."

Today, the USSC publish on its website this new 48-page memo titled "Retroactivity Impact Analysis of Parts A and B of the 2023 Criminal History Amendment."  Here is  how the memo gets started:

On April 27, 2023, the United States Sentencing Commission submitted to Congress an amendment to the federal sentencing guidelines revising two criminal history provisions found in Chapter Four of the Guidelines Manual.  Specifically, Part A of the amendment makes targeted changes to reduce the impact of providing additional criminal history points for offenders under a criminal justice sentence (commonly known as “status points”), and Part B, Subpart 1 provides a twolevel downward adjustment for certain offenders with zero criminal history points under the guidelines (“zero-point offenders”).  Because these two provisions reduce the sentencing range for some offenders, the Commission is statutorily required to determine whether either or both of these parts of the amendment should be applied retroactively to previously sentenced, imprisoned defendants.  As required by its Rules of Practice and Procedure,  the Commission voted at the April 5, 2023 public meeting to instruct staff to prepare a retroactivity impact analysis to aid the Commission in determining whether to do so.  This memorandum provides that analysis.  

Part I of this memorandum summarizes the operation of the 2023 criminal history amendment applicable to “status points” and “zero-point offenders.”  Part II of the memorandum provides background on the statutory authority and guidelines policy statement governing retroactive application of amendments to the federal sentencing guidelines, noting the factors to be considered in the Commission’s decision regarding retroactivity. Part III of the memorandum provides an estimate of the impact of Parts A and B, Subpart 1 of the amendment if the Commission were to authorize the courts to apply these parts of the amendment retroactively.  Part IV of this memorandum describes how the analysis was performed.

Here is the summary of the details of the USSC's analysis of who would benefit from retroactive application of its proposed criminal history amendments:

Staff estimates that there are 50,545 offenders in the custody of the Federal Bureau of Prisons (BOP) as of January 28, 2023, who were assigned status points at sentencing (“status points offenders”)....  Staff estimates that approximately one-quarter (22.7%, n = 11,495) of the 50,545 status points offenders would have a lower guideline range if the Commission were to make Part A of the 2023 criminal history amendment retroactive and, therefore, would be eligible to seek a modification of sentence under 18 U.S.C. § 3582(c)(2).  The current average sentence for those offenders is 120 months.  If the courts were to grant the full reduction possible in each case, the projected new average sentence for those offenders would be 106 months, a reduction of 14 months (or 11.7%).  The offenders would be released over a period of many years....

Staff estimates that there are 34,922 offenders in BOP custody as of January 28, 2023, for whom no criminal history points were assigned under Chapter Four, Part A of the Guidelines Manual when sentenced for their instant offense.  Of those 34,922 zero-point offenders, 12,574 meet the criteria in Part B, Subpart 1 of the 2023 Criminal History Amendment.  Staff estimates that slightly more than half (57.8%, n = 7,272) of those offenders would have lower guideline range if the Commission were to make Part B, Subpart 1 of the 2023 criminal history amendment retroactive and, therefore, would be eligible to seek a modification of sentence under 18 U.S.C. § 3582(c)(2).  The current average sentence for those eligible zero-point offenders is 85 months.  If the courts were to grant the full reduction possible in each case, the projected new average sentence for those offenders would be 70 months, a reduction of 15 months (or 17.6%).  The offenders would be released over a period of many years.

Putting these particulars together in a very rough way, it seems that the USSC is estimating that just under 19,000 thousand current federal prisoners would be able to get just under 1.2 years off their sentences if these new criminal history amendments are made retroactive.  That adds up to a total of about 23,000 prison years saved were these new guideline amendments made retroactive and these estimated impacts become reality.

SCOTUS grants cert in ACCA cases to address prior drug convictions as predicates for 15-year mandatory minimum

As predicted in this recent post, the Supreme Court today in this morning's SCOTUS order list granted cert in a pair of cases (which were consolidated) raising another question regarding the application of the Armed Career Criminal Act's mandatory minimum 15-year prison term for illegal gun possession.  The cases are Brown v. US, No. 22-6389 and Jackson v. US, No. 22-6640, and here are links to the Brown cert petition and the Jackson cert petition.  Here is the "Question Presented" from the Brown petition:

The Armed Career Criminal Act provides that felons who possess a firearm are normally subject to a maximum 10-year sentence.  But if the felon already has at least three “serious drug offense” convictions, then the minimum sentence is fifteen years. 

Courts decide whether a prior state conviction counts as a serious drug offense using the categorical approach. That requires determining whether the elements of a state drug offense are the same as, or narrower than those of its federal counterpart.  If so, the state conviction qualifies as an ACCA predicate.

But federal drug law often changes — as here, where Congress decriminalized hemp, narrowing the federal definition of marijuana.  If state law doesn’t follow suit, sentencing courts face a categorical conundrum.  Under an earlier version of federal law, the state and federal offenses match — and the state offense is an ACCA predicate.  Under the amended version, the offenses do not match — and the state offense is not an ACCA predicate.  So the version of federal law that the court chooses to consult dictates the difference between serving a 10-year maximum or a 15-year minimum.

The question presented is:

Which version of federal law should a sentencing court consult under ACCA’s categorical approach?

UPDATE: A helpful reader made sure I did not overlook the fact that a different drug is at issue in the Jackson case.  At issue in that case is the status of a conviction that came before 2015 when "the federal government removed ioflupane I123 from the federal drug schedules."  

Justice Thomas, joined by Justice Alito, dissents from SCOTUS denial of cert regarding challenge to execution methods

The particulars of constitutional challenges over execution methods has generated three modern Supreme Court Eighth Amendment rulings (Baze, Glossip, and Bucklew).  Though the state prevailed in all these rulings against condemned prisoners' various attacks on various lethal injection protocols, litigation over execution methods are still common and the applicable Eighth Amendment jurisprudence remains contested.  These realities provide the background for a dissent from the denial of cert in this morning's SCOTUS order list today by Justice Thomas, joined by Justice Alito, in Hamm v. Smith, No. 22–580. Here are excerpts from the intricate six-page dissent:

In this petition, the State now asks this Court to summarily reverse the Eleventh Circuit’s holding that Smith pleaded a viable Eighth Amendment claim. I would do so. The judgment below rests on flawed Circuit precedent that is irreconcilable with our method-of-execution case law....

In 2018, Alabama enacted a statute authorizing execution by nitrogen hypoxia for inmates who elected that method within 30 days of their sentences becoming final or, for those whose sentences were already final before June 1, 2018, within 30 days of that date.  Ala. Code §15– 18–82.1(b)(2). (Smith did not elect nitrogen hypoxia, so lethal injection remains the only method of execution authorized by state law in his case. §15–18–82.1(a).)  Nearly five years later, Alabama has yet to carry out any execution by nitrogen hypoxia or to finalize a protocol for implementing that method — which “ha[s] never been used to carry out an execution and ha[s] no track record of successful use” in any jurisdiction. Bucklew, 587 U. S., at ___ (slip op., at 22) (internal quotation marks omitted).

[T]he Eleventh Circuit has treated the existence of this Alabama statute as relieving inmates like Smith of their burden to plead and prove that nitrogen hypoxia is feasible and readily implemented in fact.... [But] whether the State has authorized the proffered alternative as a matter of state statutory law has no relevance to the plaintiff ’s burden of showing a constitutional violation.  Bucklew has already explained why: “[T]he Eighth Amendment is the supreme law of the land, and the comparative assessment it requires can’t be controlled by the State’s choice of which methods to authorize in its statutes.” 587 U. S., at ___–___ (slip op., at 19–20)....

When the question is whether the Eighth Amendment requires a State to replace its chosen method with an alternative method in executing the plaintiff, it is simply irrelevant, without more, that the State’s statutes authorize the use of the alternative method in other executions that are to take place sometime in the indefinite future.  Here, Smith alleged only that, and nothing more. He therefore failed to state a claim, and the Eleventh Circuit erred by holding otherwise.

The Eleventh Circuit’s error is not only plain but also serious enough to warrant correction. Even if “the burden of the alternative-method requirement ‘can be overstated,’” Bucklew, 587 U. S., at ___ (KAVANAUGH, J., concurring) (slip op., at 1), it remains an essential element of an Eighth Amendment method-of-execution claim, and it must be appropriately policed lest it become an instrument of dilatory litigation tactics.  The comparative analysis set forth in Baze, Glossip, and Bucklew contains an inherent risk of incentivizing “an inmate intent on dragging out litigation . . . to identify only a method of execution on the boundary of what’s practically available to the state.”  Middlebrooks v. Parker, 22 F. 4th 621, 625 (CA6 2022) (Thapar, J., statement respecting denial of rehearing en banc).  The Eleventh Circuit’s approach of treating any statutorily authorized method as available as a matter of law — even an entirely novel method that may not be readily implementable in reality — only heightens that danger.  In turn, and as a result, it “perversely incentivize[s] States to delay or even refrain from approving even the most humane methods of execution” any earlier than the moment they are prepared to put them into practice.  Price v. Dunn, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring in denial of certiorari) (slip op., at 11).

Latest "Relist Watch" flags yet another ACCA issue splitting circuit and likely to get SCOTUS review

In this latest Relist Watch over at SCOTUSblog,John Elwood includes a discussion of yet another issue dividing circuits concerning how to apply the Armer Career Criminal Act's severe 15-year mandatory minimum term for gun possession.  Regular readers know the wide array of technical issues SCOTUS has had to address in the application of ACCA, but this latest issue seems a bit more interesting than most.  Here are John's full descriptions (with links from the original):

[W]e have a group of three relists that raise the same issue. Brown v. United States, Jackson v. United States, and Jones v. United States all concern a single recurring issue involving the Armed Career Criminal Act, a federal sentencing enhancement provision.  The ACCA provides that someone who has been convicted of a felony and possesses a firearm is normally subject to a maximum 10-year sentence.  But if that person already has at least three “serious drug offense” convictions, then the minimum sentence — the minimum — is 15 years.  Courts decide whether a prior state conviction counts as an ACCA “serious drug offense” using a “categorical approach.”  It requires determining whether the elements of a state drug offense are the same as, or narrower than those of its federal counterpart.  If so, the state conviction qualifies as an ACCA predicate offense.  But federal drug law often changes — as here, when Congress decriminalized hemp, narrowing the federal definition of marijuana.  If the state law doesn’t follow suit, sentencing courts face an issue: What if the state and federal offenses matched (and thus the state offense was an ACCA predicate) under an earlier version of federal law, but federal law has since been narrowed? Thus, the court’s choice of which version of federal law to consult dictates the difference between serving a 10-year maximum or a 15-year minimum.

The question presented in these three cases is: Whether the “serious drug offense” definition in the Armed Career Criminal Act incorporates the federal drug schedules that were in effect at the time of the federal firearm offense, or the federal drug schedules that were in effect at the time of the prior state drug offense.  The U.S. Courts of Appeals for the 3rd, 4th, 8th, and 10th Circuit have gone with federal law at the time of the firearm offense; the U.S. Court of Appeals for the 11th Circuit has gone with federal law at the time of the prior state drug offense.

The government has told the Supreme Court that there is a circuit split on the issue and recommends that the court should grant review in Jackson, and hold Brown and Jones for that case.  I also rate Jackson a likely grant.

We should know more after the court releases its order list next Monday.

In addition to having an eye out for these ACCA cases, I am hopeful (though still not quite optimistic) that Monday's SCOTUS order list might also include some action on the long-pending acquitted conduct cases (background here).

Closing another busy week rounding up some notable commentary

Last month, I used round-up posts here and here to catch up on a number of capital punishment and prison-related stories during busy end-of-the-semester weeks.  This week it is mostly grading and graduation that has kept me from blogging a number of notable commentary pieces that I have seen recently.  So, catching up again with a round up, here goes:

By James Austin & Michael Jacobson, "A Model for Criminal Justice Reform: How New York City Lowered its Jail Population and Crime Rates"

By Emily Beltz, "How an Oklahoma Death Penalty Case Shook Up Evangelical Views on Execution"

By Hillary Blout & Marc Levin, "Give Texas prosecutors the chance to do justice for old cases"

By Kristen Budd, "Expanding voting rights to justice-impacted can improve public safety"

By C.J. Ciaramella, "Newly Released Government Records Reveal Horrible Neglect of Terminally Ill Woman in Federal Prison"

By Whitney Downard, "Probation, parole an overlooked population of the criminal justice system"

By C. Dreams, "How The Prison Litigation Reform Act Blocks Justice For Prisoners: Legislation signed by Bill Clinton makes it nearly impossible for people in prison to have their cases heard in court."

By Eric Reinhart, "How Community Health Workers Can End Mass Incarceration and Rebuild Public Safety"

By Rupa Subramanya, "Is Justice Still Blind in Canada?: Equality under the law is the cornerstone of liberal democracy. But judges across the country are now factoring race into sentencing."

By William Weber, Brooks Walsh, & Steven Zeidman, "New York’s Compassionate Release Laws were Designed to Keep People from Dying Behind Bars; They’re Failing"

By Raymond Williams, "Dear Prison Officials: Stop Searching My Nose for Your Contraband"

SCOTUS unanimously reverses two federal fraud convictions based on novel theories

The Supreme Court this morning handed down two notable wins for federal fraud defendants, rejecting two theories of federal prosecution endorced by lower court in Ciminelli v. US, No. 21-1170 (S. Ct. May 11, 2023) (available here) and Percoco v. US, No. 21-1158 (S. Ct. May 11, 2023) (available here). Here is how the opinion for the Court in Ciminelli authored by Justice Thomas gets started:

In this case, we must decide whether the Second Circuit’s longstanding “right to control” theory of fraud describes a valid basis for liability under the federal wire fraud statute, which criminalizes the use of interstate wires for “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” 18 U.S.C. § 1343.  Under the right-to-control theory, a defendant is guilty of wire fraud if he schemes to deprive the victim of “potentially valuable economic information” “necessary to make discretionary economic decisions.” United States v. Percoco, 13 F.4th 158, 170 (CA2 2021) (internal quotation marks omitted). Petitioner Louis Ciminelli was charged with, tried for, and convicted of wire fraud under this theory. And the Second Circuit affirmed his convictions on that same basis.

We have held, however, that the federal fraud statutes criminalize only schemes to deprive people of traditional property interests. Cleveland v. United States, 531 U.S. 12, 24 (2000). Because “potentially valuable economic in-formation” “necessary to make discretionary economic decisions” is not a traditional property interest, we now hold that the right-to-control theory is not a valid basis for liability under §1343. Accordingly, we reverse the Second Circuit’s judgment.

Here is how the opinion for the Court in Percoco authored by Justice Alito gets started:

In this case, we consider whether a private citizen with influence over government decision-making can be convicted for wire fraud on the theory that he or she deprived the public of its “intangible right of honest services.” 18 U.S.C. §§ 1343, 1346. Petitioner Joseph Percoco was charged with conspiring to commit honest-services wire fraud during a period of time that included an eight-month interval between two stints as a top aide to the Governor of New York. Percoco was convicted of this offense based on instructions that required the jury to determine whether he had a “special relationship” with the government and had “dominated and controlled” government business. 2 App. 511. We conclude that this is not the proper test for determining whether a private person may be convicted of honest-services fraud, and we therefore reverse and remand for further proceedings.

Though federal criminal law and white-collar folks are going to want to review these (relatively shourt) opinions closely, everyone should take the time to check out Justice Gorsuch's concurrence in Percoco. It was joined by Justice Thomas and here are some brief highlights from its start and closing:

The Court holds that the jury instructions in this case were “too vague.” Ante, at 10.  I agree.  But to my mind, the problem runs deeper than that because no set of instructions could have made things any better.  To this day, no one knows what “honest-services fraud” encompasses.  And the Constitution’s promise of due process does not tolerate that kind of uncertainty in our laws—especially when criminal sanctions loom. “Vague laws” impermissibly “hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct.”  United States v. Davis, 588 U.S. ___, ___ (2019) (slip op., at 1)....

The difficulty here stems from the statute and the lower court decisions that inspired it.  I have no doubt that if all nine Justices put our heads together, we could rewrite § 1346 to provide fair notice and minimize the risk of uneven enforcement.  I have no doubt, too, that we could find a hook for any such rule somewhere in the morass of pre-McNally lower-court case law.  Maybe, too, that is the path we are on, effectively writing this law bit by bit in decisions spanning decades with the help of prosecutors and lower courts who present us with one option after another.  But that is not a path the Constitution tolerates.  Under our system of separated powers, the Legislative Branch must do the hard work of writing federal criminal laws.  Congress cannot give the Judiciary uncut marble with instructions to chip away all that does not resemble David.  See United States v. Reese, 92 U.S. 214, 221 (1876) (“It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large”); United States v. Wiltberger, 5 Wheat. 76, 95 (1820) (Marshall, C. J.) (“It is the legislature, not the Court, which is to define a crime, and ordain its punishment”).

Doubtless, Congress had high and worthy intentions when it enacted § 1346.  But it must do more than invoke an aspirational phrase and leave it to prosecutors and judges to make things up as they go along.  The Legislature must identify the conduct it wishes to prohibit.  And its prohibition must be knowable in advance — not a lesson to be learned by individuals only when the prosecutor comes calling or the judge debuts a novel charging instruction. Perhaps Congress will someday set things right by revising §1346 to provide the clarity it desperately needs.  Until then, this Court should decline further invitations to invent rather than interpret this law.

"Enforcing Marijuana Prohibitions: Prosecutorial Policy in Four States"

The title of this post is the title of this new paper now available via SSRN and produced jointly by The Ohio State University Moritz College of Law's Drug Enforcement and Policy Center and the University of North Carolina School of Law's Prosecutors and Politics Project. Here is its abstract:

As more states have legalized and decriminalized marijuana, the enforcement of criminal laws prohibiting the personal possession of marijuana has become more controversial in states where cannabis remains illegal.  Yet, very little is understood about how other prosecutors enforce criminal prohibitions on the personal possession of marijuana.  This study aims to fill this gap.  It systematically examines prosecutorial enforcement of laws prohibiting the personal possession of marijuana in four states that have not legalized medical or adult-use marijuana.  The study had four major goals: (1) to determine what enforcement policies had been adopted by incumbent prosecutors, (2) to determine the enforcement platforms of candidates running for the office of local prosecutor, (3) to explore the reasons and reasoning behind those policies and platforms, and (4) to determine what information, if any, was accessible to voters about the issue.

As flagged in this post over at my other blog, this study will be discussed at an onlne event next week titled "Prosecuting Cannabis: Approaches from States without Legalization."  Folks can register for this event here, and this event page provides some background along with the scheduled panelists.

First Circuit panel reverses fraud convictions for two Varsity Blues defendants

As reported in this New York Times piece, "a federal appeals court overturned the fraud and conspiracy convictions on Wednesday of two parents found guilty of participating in a far-reaching bribery scheme, known as Operation Varsity Blues, which ensnared dozens of wealthy parents who falsified their children’s credentials to gain admission to prestigious universities across the country."  Here is more:

A three-judge panel of the U.S. Court of Appeals for the First Circuit in Massachusetts found that the lower court had made crucial missteps in the trial of Gamal Abdelaziz, a former casino executive, and John Wilson, a private equity financier.  The court, however, upheld Mr. Wilson’s conviction on tax fraud.

The appeals court made its decision largely on two technical legal grounds.  First, it ruled that the lower court judge wrongly instructed the jury that admissions slots constituted property.  “We do not say the defendants’ conduct is at all desirable,” the decision said.  But the appellate judges faulted the government for being too broad in its argument, to the point where “embellishments in a kindergarten application could constitute property fraud proscribed by federal law.”

The court also found that the government had failed to prove that the two men agreed to engage in a conspiracy with other parents, who were, like them, the clients of William Singer, known as Rick, a college admissions consultant to the rich, the mastermind of the admissions scheme.  The conspiracy charges allowed the government to introduce evidence related to other parents’ wrongdoing, creating the risk of bias against the defendants, the judges said in a 156-page decision....

The victory in the appellate court was striking because Mr. Wilson and Mr. Abdelaziz were the first to take their chances in front of a jury.  Dozens of other wealthy parents, including some celebrities, pleaded guilty, making it seem as if the prosecutions were ironclad.  The investigation became a symbol of how wealthy, prestige-obsessed parents had turned elite universities into brand-name commodities.

“Almost everybody pleaded guilty, so the government’s legal theories weren’t really tested until this case was decided,” Joshua Sharp, the lawyer who argued the case for Mr. Abdelaziz, said on Wednesday.

While Mr. Abdelaziz and Mr. Wilson found the weak spots in the government’s case, parents who pleaded guilty are unlikely to be able to challenge their convictions on similar grounds, legal experts said.

Mr. Abdelaziz was accused of paying $300,000 in 2018 to have his daughter admitted to the University of Southern California as a top-ranked basketball recruit even though she did not make the varsity team in high school.  Mr. Wilson was accused of paying $220,000 in 2014 to have his son admitted as a water polo recruit at U.S.C., even though prosecutors said he was not good enough to compete at the university.

Mr. Wilson was also accused of agreeing to pay $1.5 million in 2018 to have his twin daughters, who were good students, admitted to Harvard and Stanford as recruited athletes.

They were tried together in the fall of 2021; Mr. Wilson was later sentenced to 15 months in prison, and Mr. Abdelaziz to a year and a day. Their lawyers argued that the men thought they were making legitimate donations to the university. They said they trusted Mr. Singer, as their college consultant, to guide them.

The investigation ensnared more than 50 people, including the actresses Felicity Huffman and Lori Loughlin; Ms. Loughlin’s husband, Mossimo Giannulli, a fashion designer; and coaches and exam administrators, among others. Mr. Singer agreed to cooperate with the government and pleaded guilty in 2019 to conspiracy charges. He was sentenced in January to three and a half years in prison.

The full 156-page opinion of the First Circuit panel is available at this link.

"The Eighth Amendment's Time to Shine; Previewing Florida's Imminent Constitutional Crisis in Capital Punishment"

The title of ths post is the tile of this new piece authored by Melanie Kalmanson now available via SSRN.  Here is its abstract:

In April 2023, Florida Governor DeSantis enacted legislation that lowers the jury vote necessary to impose a sentence of death in the state to 8-4.  The new statute removes the procedural safeguards that were implemented after the U.S. Supreme Court held in 2016 that Florida's capital sentencing scheme violated defendants' right to jury trial under the Sixth Amendment.

Litigation about the constitutionality and application of the new statute has already started and will likely continue for a while until the full effect of the statute is determined.  This Essay previews some of the issues that will be litigated and forecasts that the Eighth Amendment will be the star of the show in this Act of the play on Florida’s constitutional crises in capital punishment. 

Big spread in sentencing recommendations for Oath Keepers founder convicted of seditious conspiracy

As reported in this Washington Post piece, lawyers for "Stewart Rhodes urged a judge to sentence him to far less than the 25-year prison term sought by federal prosecutors for seditious conspiracy in the Jan. 6, 2021, Capitol attack — asking for a penalty of time served or roughly 16 months behind bars — citing his military service and his founding and leadership of the right-wing extremist group Oath Keepers." Here is more:

In a Monday morning court filing, the attorneys emphasized that Rhodes volunteered for the Army in June 1983, completed Airborne school and was honorably discharged after suffering a spinal fracture in a low-altitude night jump in 1986.  They emphasized his formation of the Oath Keepers in 2009, saying the group provided hurricane and other emergency relief, security in cities experiencing rioting, and protective details for VIPs during President Donald Trump’s rallies after the 2020 presidential election....

The defense filing came after a Friday evening memo by prosecutors asking a federal judge to sentence Rhodes to 25 years in prison and eight followers to at least 10 years behind bars, in the first punishments to be handed down to defendants convicted of seditious conspiracy in the Capitol riot.

Rhodes and the others face sentencing starting later this month. Rhodes was arrested in January 2022 and will have served roughly 16 months at that point....

Rhodes, a top deputy and four others were found guilty at trials in November and January of plotting to unleash political violence to prevent the Biden presidency, stashing a small arsenal of firearms at hotels in Northern Virginia before converging that afternoon at the East Capitol steps in military-style tactical gear.  Three other co-defendants were convicted of obstructing Congress as it met to confirm the results of the 2020 election, among other crimes. Both top offenses are punishable by up to 20 years in prison, but prosecutors asked the court to stack sentences for Rhodes, citing among other things an enhanced terrorism penalty for actions intended to intimidate or coerce the government.

Prosecutors called for “swift and severe” punishment for Rhodes, saying his group’s actions went far beyond the scope and magnitude of any other Jan. 6 defendants sentenced so far.  They said Rhodes exploited his public influence in the anti-government extremist movement and mobilized people for political violence after “spreading doubt about the presidential election and turning others against the government” because their preferred candidate did not win....

Mehta, Rhodes’s sentencing judge, has handed down the two longest punishments to Jan. 6 defendants so far, both for assaulting police: 14 years for Peter Schwartz of Kentucky, who attacked multiple officers and who has a long criminal history of 38 convictions, including multiple domestic and police assaults; and 10 years for Timothy Webster, a former New York City police officer who attacked a Capitol Police officer with a metal flagpole.

Rhodes’s attorneys said only those two men have been sentenced to more than eight years in Jan. 6 cases, attaching a 54-page government chart of sentences to a 16-page defense filing.  About 200 of roughly 450 people sentenced have received no jail time, and more than half of the roughly 250 people who have been sentenced to prison received terms of less than two months.

Of 110 people sentenced for felonies, about 76 who pleaded guilty have been sentenced to an average of 33 months, and about 34 who were convicted at trial have been sentenced to an average of 44 months in prison, according to a separate Washington Post analysis.

The defense's 70-page sentencing filing is available at this link; the government's 183-page sentencing filing is available at this link.

Should every state have a dedicated commission to receive complaints about prosecutors?

The question in the title of this post was my first reaction to the news of a commission just created in Georgia.  This AP piece, headlined "Georgia enacts law letting panel punish, oust prosecutors," provides these details:

Gov. Brian Kemp signed a bill into law Friday creating a new commission empowered to discipline and remove wayward prosecutors, saying it will curb “far-left prosecutors” who are “making our communities less safe.”

Kemp made the remarks at the Chatham County Sheriff's Office in Savannah, where he signed the measure establishing the Prosecuting Attorneys Qualifications Commission, which will launch July 1 and start accepting complaints Oct. 1....

The efforts continue anti-crime campaigns that Republicans ran nationwide last year, accusing Democrats of coddling criminals and improperly refusing to prosecute whole categories of crimes, including marijuana possession.

Georgia Democrats strenuously opposed the measure, saying the Republican legislative majority was seeking another way to impose its will on Democratic voters at the local level....

Crucially, the Georgia law mandates that a prosecutor must consider every case for which probable cause exists and can’t exclude categories of cases from prosecution. Experts have said that considering every case individually is unrealistic, because prosecutors turn down many more cases than they charge. However, it’s unclear if the new law will change prosecutors’ behavior or just lead them to avoid talking publicly about charging decisions.

The eight-member commission will include six current or former prosecutors and two other lawyers. It will oversee DAs and solicitors general — elected prosecutors who handle lower-level crimes in some counties....

The law was born from frustrations involving a white Republican prosecutor in suburban Atlanta who was indicted for bribery related to sexual harassment claims. He lingered in office until he pleaded guilty to unprofessional conduct and resigned in 2022.

Some Democrats were interested in similar measures for a time because of Jackie Johnson, a coastal Georgia DA who was charged with hindering the police investigation into the 2020 killing of Ahmaud Arbery. Democratic interest cooled after voters ousted Johnson.

The rules could also target prosecutors who declared before Roe v. Wade was overturned in 2022 that they wouldn't prosecute abortion-related offenses. Seven current Georgia DAs fit that description.

Though the AP piece leans into the political dynamics driving some debates over prosecutorial behaviors, this official press release from Gov Kemp notes that the new Georgia Commission can and will be policing local prosecutors on various fronts:

Governor Brian P. Kemp, accompanied by First Lady Marty Kemp, members of the General Assembly, district attorneys and solicitors-general, and other local and state leaders, signed Senate Bill 92 today, establishing the Prosecuting Attorneys Qualifications Commission (PAQC). The PAQC will serve as a valuable oversight mechanism for district attorneys and solicitors-general across Georgia, ensuring these officials fulfill their constitutional and statutory duties....

The bill establishes the following grounds for the removal or involuntary retirement of a district attorney or solicitor-general from office:

• Mental or physical incapacity that interferes with the performance of duties that is likely permanent;
• Willful misconduct in office;
• Willful and persistent failure to carry out statutory duties;
• Conviction of a crime involving moral turpitude;
• Conduct prejudicial to the administration of justice which brings the office into disrepute; or
• Knowingly authorizing or permitting an assistant district attorney or assistant solicitor-general to commit any of the aforementioned acts.

To parrot this press release, I sincerely think it would be a great idea to have a "valuable oversight mechanism for district attorneys" in every state (and for federal prosecutors, too).  I have often heard from persons who sincerely believe they have witnessed a prosecutor engage in "willful misconduct" or "conduct prejudicial to the administration of justice which brings the office into disrepute"; so creating a central commission (comprised mostly of former and current prosecutors) to hear complaints about, and conduct any needed investigations of, the work of prosecutors makes a lot of sense to me. Of course, like many government entitles, if unduly politicized or problematically ideological, this commission could possibly do more harm than good.  But, given the general lack of transparency and accountability for prosecutorial actions and practices, I am inclined to be hopeful about this new PAQC.

US Supreme Court stays the execution of Richard Glossip

As reported in this AP article, the "Supreme Court on Friday blocked Oklahoma from executing death row inmate Richard Glossip for his role in a 1997 murder-for-hire after the state’s attorney general agreed Glossip’s life should be spared." Here is more:

Glossip had been scheduled to be put to death on May 18 despite statements by new Oklahoma Attorney General Gentner Drummond that Glossip did not receive a fair trial.  An Oklahoma appeals court subsequently upheld Glossip’s conviction and the state’s pardon and parole board deadlocked in a vote to grant him clemency.

The high court put the execution on hold indefinitely while it reviews the case.  Justice Neil Gorsuch took no part in the decision, presumably because he dealt with the case earlier as an appeals court judge.

“There is nothing more harrowing than the thought of executing a man who the state now admits has never received a fair trial,” Glossip attorney Don Knight said in a statement.  “Our hope is that the court will reverse the decision of the (Oklahoma Court of Criminal Appeals) and vacate Mr. Glossip’s conviction once and for all.”

Drummond, a Republican, said in a statement he was grateful for the high court’s decision. “I will continue working to ensure justice prevails in this important case,” he said.  In a rare move, Drummond, the state’s top prosecutor, supported a high-court reprieve for Glossip, telling the justices, “Glossip’s trial was unfair and unreliable.”

But Drummond also has said he does not believe Glossip is innocent of the murder-for-hire killing of Glossip’s former boss, Barry Van Treese, in 1997. Another man, Justin Sneed, admitted robbing and killing Van Treese after Glossip promised to pay him $10,000. Sneed received a life sentence in exchange for his testimony and was the key witness against Glossip....

Former Oklahoma County District Attorney David Prater has long said he believes Glossip persuaded Sneed to kill Van Treese. He said that while Sneed’s testimony was most compelling, there was plenty of evidence to corroborate it. “When police came to talk to Glossip about Van Treese’s whereabouts, he directed him away from the room he knew Van Treese was in,” Prater said Friday. “At any point, Glossip had the opportunity to tell the police that Sneed did this. He never did that. He even helped Sneed clean up everything.”

Prater said Sneed and Glossip also both had a large amount of cash that Prater said they stole from Van Treese’s car. “In light of Gentner Drummond’s position regarding the stay, I don’t feel like the Supreme Court had much of a choice,” Prater said. “But the truth will come out.”

Two separate independent investigations have revealed problems with the prosecution’s case. Drummond said Sneed lied on the stand about his psychiatric condition and his reason for taking the mood-stabilizing drug lithium, and that prosecutors knew Sneed was lying. Also, evidence was destroyed, Drummond said.

Some Republican state lawmakers who support the death penalty have joined the growing chorus of Glossip supporters who are seeking to overturn his conviction. “We’re just ecstatic,” state Rep. Kevin McDugle said in a brief telephone interview on Friday.

Glossip’s case has been to the Supreme Court before. He was given a reprieve in 2015, although the court later ruled 5-4 against him in a case involving the drugs used in lethal executions.  Glossip has been just hours away from being executed three separate times. His last scheduled execution, in September 2015, was halted just moments before he was to be led to the death chamber when prison officials realized they had received the wrong lethal drug. That mix-up helped prompt a nearly seven-year moratorium on the death penalty in Oklahoma.

A few prior recent relates posts:

• Oklahoma Gov grants 60-day execution stay for Richard Glossip while courts consider innocence claim 
• New Oklahoma Attorney General formally moves to set aside Richard Glossip's capital conviction
• Oklahoma Court of Criminal Appeals, rejecting state AG's motion, refuses to set aside Richard Glossip's capital conviction

DOJ's Inspector General reports on "aging and deteriorating" federal prison facilities

As detailed in this official press release, "Department of Justice (DOJ) Inspector General Michael E. Horowitz [has] announced ... the release of a report evaluating the Federal Bureau of Prisons’ (BOP) efforts to maintain and construct correctional institutions. The DOJ Office of the Inspector General (OIG) also launched a web page with photos and videos documenting the condition of prison cells, cell blocks, and kitchen, dining, and other areas at five BOP institutions (FCI Terminal Island, USP Atlanta, FTC Oklahoma City, CI Taft, and MCC New York)."  Here is more:

As described in today’s report, the BOP’s institutions are aging and deteriorating: all 123 of the BOP’s institutions require maintenance, with a large and growing list of unfunded modernization and repair needs, and three of these institutions are in such critical stages of disrepair that they are fully or partially closed.  The DOJ OIG found that the BOP’s efforts to address these issues were negatively impacted by two major factors: a mismatch between available and needed funding, and the absence of a well-defined infrastructure strategy.

As of May 2022, the BOP’s estimated cost for needed, major repairs was approaching $2 billion. However, our audit found that the BOP’s budget requests have been far below its own estimates of resource needs: for example, BOP sought less than $200 million for its infrastructure needs from Congress in FY 2022, and Congress appropriated $59 million.  Consequently, the resources available to address BOP’s maintenance needs are limited, and in many cases, necessary repairs cannot be completed in a timely manner due to a lack of funding.  This results in increasingly costly maintenance and, in the most extreme circumstances, having to shutter institutions and relocate inmates due to unsafe conditions.

At the same time, we found that Congress has set aside over $1 billion for the BOP to construct two new institutions, but these funds remain largely unspent, the projects have been in the planning stages for over a decade, and the BOP’s requests each year that Congress cancel one of these projects and rescind the funds — made at the direction of the Department of Justice and the Office of Management and Budget — have not been acted on.

New "End the Trial Penalty Coalition" seeks to end "coercive elements of plea bargaining" and to restore right to a jury trial

Via email, I received notice of a new colelction of advocacy groups called the "End the Trial Penalty Coalition."  Here are excerpts from the email/press release from this new Coaltion (with links from the original):

Twenty-four criminal justice organizations, impacted people, think tanks, academics, activists, and reform leaders from across the ideological spectrum have united to end the trial penalty -- the substantial and coercive difference between the sentence in a plea offer prior to trial versus the much greater sentence a defendant often receives after trial.  Those who choose to go to trial and are convicted often face sentences that are, on average, three times the plea offer and sometimes measured in decades.

The coercive and punitive effects of the trial penalty are so pervasive that they have virtually eliminated our constitutional right to trial. In fact, over 97% of cases ending in a conviction never go to trial, leading to a range of issues reverberating through our legal system, including the waiver of numerous constitutional freedoms and rights, overcriminalization, loss of public oversight, and racial injustice.  The Coalition aims to restore the right to trial, helping right these wrongs to ensure a fair, rational, and humane criminal legal system.

Members of this new Coalition will work together to raise awareness of the adverse effects of a justice system without trials, advocate policy reform, and forge relationships with key policymakers.  The Coalition will also serve as a resource for people interested in participating in an impactful criminal legal reform movement.  The Coalition has published a comprehensive Policy Overview which includes policy ideas to combat coercive practices in the plea bargaining process, to improve data collection and transparency, and to foster post-trial reform and accountability measures.

After US Sentencing Commission deferred on issue, Supreme Court back to conferencing acquitted conduct cases

Regular readers surely recall prior posts about the McClinton case still before the US Supreme Court raising issues about the use of acquitted conduct at sentencing in which I filed an amicus brief in support of petitioner Dayonta McClinton.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case.

After various delays, the Justices considered the McClinton case (as well as a number of others raising acquitted conduct issues) at their conference in January 2023.  Upon initial review, these cases were all "relisted," which is usually a sign that at least one Justice is interested in taking a closer look at the case.  But then, interestingly, these cases did not appear in subsequent SCOTUS order lists nor did the docket sheet show that the case was rescheduled for future conferences.  A number of folks speculated, myself included, that the announcement by the US Sentencing Commission to consider an amendment to the federal sentencing guidelines on the acquitted conduct issue had led the Justices to put a hold on McClinton and the other acquitted conduct cases.

But, as reported here, last month the US Sentencing Commission ultimately decided not to advance any guideline amendments addressing the issue of acquitted conduct in this year's amendment cycle.  This USSC decision served, in a sense, to punt this matter back to the Justices.  (The issues and possible work of SCOTUS and the USSC on acquitted conduct are not identical, but they do overlap in various possible ways.)  Excitingly, SCOTUS seems to be back at it as the McClinton docket sheet now shows this case will be reviewed again next week by the Justices at their May 11 conference.

I still think the odds of a cert grant on this issue to be remote.  Stll, I think it important that SCOTUS indicate, one way or another, if it is inclined to review this important issue anew a quarter-century after its Watts ruling.  A host of new Fifth and Sixth Amendment jurisprudence raising questions about the practice of acquitted conduct sentencing enhancements could certainly justify review, but the Justices have been disinclined to revisit this issue for quite some time. 

A few recent of many, many prior related posts:

• "Acquitted Conduct Should Not Be Considered At Sentencing"
• Split Michigan Supreme Court finds due process precludes use of acquitted conduct at sentencing 
• "Acquitted. Then Sentenced."
• NJ Supreme Court holds, as a matter of state constitutional law, that "fundamental fairness" precludes sentence enhancement based on acquitted conduct 
• Might SCOTUS finally be ready to take up acquitted conduct sentencing enhancements?
• Hoping and pushing for SCOTUS finally taking up acquitted conduct sentencing enhancements 

Justice Department releases latest annual report on FIRST STEP Act implementation

The US Department of Justice recently released this notable report titled simply "First Step Act Annual Report, April 2023." Here is the 50+-page report's simple introduction:

The First Step Act of 2018 (“First Step Act,” “FSA,” or “Act”) was the culmination of a bipartisan effort to improve criminal justice outcomes and reduce the size of the federal prison population, while maintaining public safety. Under Section 101 of the Act, now codified in 18 U.S.C. § 3634, the Attorney General is required to submit a report beginning two years after the date of enactment, and annually thereafter for a period of five years.  The Department of Justice (the Department) submitted its last such report to Congress in April 2022.  This is the third Annual Report submitted pursuant to Section 3634.

What follows is an extraordinary amount of information and data about FIRST STEP Act implementation on many fronts, and here is just one of a half-dozen items of note that is flagged in the report's executive summary:

Enhance the use of home confinement and prerelease custody.  Consistent with the FSA’s emphasis on transitioning individuals to a community setting, the Department has expanded the use of home confinement for individuals who do not pose a danger to the community.  As of January 28, 2023, 13,501 individuals have been released from Residential Reentry Centers (RRCs), home confinement (HC), and secure facilities pursuant to credits earned under the First Step Act.  On April 4, 2023, the Department also issued a final rule granting discretion to the Director of the Bureau of Prisons to allow individuals placed in home confinement under the Coronavirus Aid, Relief, and Economic Security (CARES) Act to remain in home confinement after the expiration of the covered emergency period.  The final rule provides the Bureau the discretion and flexibility to impose proportional and escalating sanctions for individuals who commit infractions, including returning them to prison.  It also allows the Bureau to move individuals into RRCs when needed, including instances when the home residence is no longer viable or due to either minor accountability issues or non-significant disciplinary issues.  Consistent with the final rule, the Director of the Bureau of Prisons also instructed that any individual placed on home confinement under the CARES Act will remain on home confinement under the CARES Act for the remainder of their sentence, provided that they are compliant with the rules and regulations of community placement.  Since the enactment of the CARES Act on March 26, 2020, the Bureau of Prisons has placed more than 12,000 individuals in home confinement under CARES Act authority.  Of those, only a fraction of one percent has been returned to secure custody due to new criminal conduct.

"Why Criminal Defendants Cooperate: The Defense Attorney's Perspective"

The title of this post is the title of this new piece recently posted to SSRN and authored by Jessica Roth, Anna D. Vaynman and Steven D. Penrod. Here is its abstract:

Cooperation is at the heart of most complex federal criminal cases, with profound ramifications for who can be brought to justice and for the fate of those who decide to cooperate.  But despite the significance of cooperation, scholars have yet to explore exactly how individuals confronted with the decision whether to pursue cooperation with prosecutors make that choice.  This Article — the first empirical study of the defense experience of cooperation — begins to address that gap.  The Article reports the results of a survey completed by 146 criminal defense attorneys in three federal districts: the Southern District of New York, the Eastern District of Virginia, and the Eastern District of Pennsylvania.  Our study provides an entirely new and enriching perspective on the cooperation decision, building on prior theories from the cooperation and plea-bargaining literature, and providing for a more nuanced understanding of cooperation and its motivations.  In several closed- and open-ended responses, attorneys shared their opinions — at times remarkably consistent, at times strikingly and informatively different — about cooperation practices in their respective districts. The results of this study can be used to further explore the theoretical foundations of cooperation and plea bargaining and can be used to build experimental studies to test causal relationships that are otherwise nearly impossible to determine.

With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy?

Fifteen years ago, in Kennedy v. Louisiana, 554 U.S. 407 (2008), the US Supreme Court decided, by a 5-4 vote, that the Constitution prohibits a state from imposing the death penalty for the crime of child rape.  In the words of the majority opinion: "Based both on consensus and our own independent judgment, our holding is that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments."

In Florida, a multi-month effort to push back on this doctrine culminiated today in the signing of a new law to permit sentencing a child rapist to death.  Here are the basics from this USA Today piece:

Florida Gov. Ron DeSantis has signed into law a measure making child rape subject to the death penalty, defying a United States Supreme Court ruling. "In Florida, we stand for the protection of children," DeSantis said at a Monday press conference in Brevard County. "We think that in the worst of the worst cases the only appropriate punishment is the ultimate punishment."

But, in 2008, U.S. Supreme Court justices issued a 5-4 ruling barring states from imposing the death penalty for the rape of a child, when the crime does not involve a child’s death. The court rules that applying the death penalty in such cases would amount to “cruel and unusual punishment.”

DeSantis, though, has said he thinks the current conservative-majority U.S. Supreme Court may be willing to revisit the earlier ruling. "We think that decision was wrong," he said at the press conference. "This bill sets up a procedure to be able to challenge that precedent."

I see that the new Florida death penalty law, House Bill 1297, states expressly that "a sentence of death shall be imposed under this section notwithstanding existing case law which holds such a sentence is unconstitutional under the Florida Constitution and the United States Constitution."  I suppose that provision helps to provide a means for a test case to emerge in which lower Florida (and federal habeas) courts would presumably feel obligated based on the Kennedy precedent to strike down a capital child rape sentence, but then Florida would keep appealing in the hope of getting the Supreme Court to take up the case and overrule Kennedy. 

In addition to wondering about the facts of any "Kennedy test case," I cannot help but wonder how long it might take to get to SCOTUS.  There are, surely, hundreds of cases of young child sexual abuse in Florida with the child under age 12 as required by this law.  But, while there will be death eligible cases right away, we would need a prosecutor to charge under this new law and a jury to return a death verdict and recommended sentence before the appeals get going in earnest.  And the appeals would surely take quite some time before SCOTUS would even have a chance to take up a challenge to Kennedy.

Notably, three of the four Justices in dissent in Kennedy are still on the Court (Justices Thomas, Alito and the Chief), while none of the Justices in the Kennedy majority on still on this Court.  I suspect Justice Gorsuch would be a vote to reverse Kennedy, and that Justices Sotomayor, Kagan and Jackson would not be.  I would guess that one, and perhaps both, of Justices Kavanuagh and Barrett would, perhaps on originalist grounds, reverse Kennedy.  But when might they get the chance and are many of the Justices really eager to take this up?  

Latest reporting of US District Court's experience getting involved with supervised release

A couple of helpful folks recently focused my attention on the notable work that SDNY US District Judge Richard M. Berman has been doing in the arena of federal supervised release.  This work is discussed by Judge Berman in this Regulatory Review article, titled “Federal Court Involvement in Supervised Release,” and here is the start of this article:

In most cases, individuals’ release from federal prison does not mark the end of their sentences. A federal criminal sentence typically also includes a term of “supervised release,” which the U.S. Sentencing Commission defines as a “unique type of post-confinement monitoring that is overseen by federal district courts with the assistance of federal probation officers.”  Supervised release is intended to assist people who have served prison terms with their effective reintegration, or “reentry,” into the community.

Judges are not always actively involved in overseeing supervision.  Rather, officers of the U.S. Probation Office play the dominant role in monitoring individuals on supervised release.  Judges tend to become more involved only after a supervisee has failed to comply with the terms of supervision.  As a result, judges may miss the opportunity meaningfully to assist with reentry and to help ensure that necessary services such as drug treatment, mental health counseling, and housing and employment assistance are provided.

Over the past five-plus years, my chambers staff and I developed a more active and involved approach to supervised release.  The practice features regular supervised release hearings intended to help ensure that supervisees succeed and avoid further negative involvement in the criminal justice system.  Importantly, this practice also includes early termination of supervised release for all those who have shown that they no longer need supervision.

That Regulatory Review article also provides a link to a 2021 report with data about how this court involved supervised release functioned and some of its impacts.  A 2022 version of this report (as will as some slides) were sent my way recently, and are available in links below.  And here is part of the executive sumary of this latest report:

In this report, we provide results from our court involved supervised release project. Data and case studies are presented from the perspectives of recidivism and desistance from crime—in the areas of rearrest, return to prison, and early termination of supervision.

The Study Population rearrest rates over three and five years are 17.1% and 20.4%, respectively; the return to prison rate is 13.2%; and the early termination rate is 46.2%. These results include all Study Population supervisees and make no adjustments for “risky” supervisees.

Acknowledging that comparisons are at best imprecise, we include an AO study which shows rearrest rates of 20.8% at three years (16.3% adjusted) and 27.7% at five years (page 20); a Bureau of Justice Statistics study which shows a return to prison rate of 31.6% (page 22); and an AO early termination study which shows a rate of 18.8% (page 34).

The approach and outcomes presented in our report are very encouraging. At the same time, it is premature to conclude or to celebrate that recidivism is decreasing (page 8).

A fair conclusion to be reached from the data and the case studies is that judges who become actively involved in supervision — together with dedicated probation officers and others — can unequivocally and meaningfully assist supervisees to safely and successfully reenter their communities.

Download Judge Berman Supervised Release Report (2022.10.12)

Download Judge Berman 2023.04.05 Supervised Release Slides

Notable new commentaries on Justice Alito's criminal justice jurisprudence

The Harvard Journal of Law & Public Policy this past week posted a significant number of new commentaries here under the banner The Jurisprudence of Justice Samuel Alito: A Symposium.  Here is how the links to the pieces are introduced:

The essays in this symposium, authored by prominent federal judges and renowned academics, focus in-depth on Justice Alito’s approaches to a wide variety of areas of law.  Versions of most of these essays were presented as addresses at a March 2022 symposium convened by Professor Robert P. George and Yuval Levin, co-hosted by the James Madison Program in American Ideals and Institutions at Princeton University and the American Enterprise Institute. 

Two of the 14 pieces in this collection are focused on Justice Alito's criminal justice jurisprudence:

• Justice Alito on Criminal Law – Kate Stith
• Justice Alito on Criminal Procedure – Hon. Andrew S. Oldham

The piece by Judge Oldham mentions some post-Booker cases in passing, and the piece by Professor Stith discusses the sentencing/criminal history stories around the Armed Career Criminal Act at great length. Both pieces stress what they call Justice Alito's " pragmatism" in this arena.

These pieces generally fail to note that Justice Alito's version of criminal justice "pramatism" seems to mean that the police and prosecutors, and not the individual, will almost always prevail.  This 2017 empirical article detailed that Justice Alito had not once voted in favor a Fourth Amendment litigant in a divided case.  I have not been able to find a similar accounting for other parts of the SCOTUS criminal docket, but I have a hard time recalling divided cases in any criminal justice arena in which Justice Alito voted for the criminal defendant.  That reality leads me to think of Justice Alito's "pragmatic" criminal justice jurisprudence to be most fundamentally about prioritizing state and federal criminal powers over individual rights and protections.

Prez Biden commutes 31 federal sentences and releases "Alternatives, Rehabilitation, and Reentry Strategic Plan"

As reported in this new Washington Post piece, "President Biden commuted the sentences of 31 nonviolent drug offenders Friday as the White House rolled out a broad initiative that aims to bolster the “redemption and rehabilitation” of people previously incarcerated through greater access to housing, jobs, food and other assistance."  Here is more:

The actions came during what Biden has proclaimed as Second Chance Month, an attempt to put a greater focus on helping those with criminal records rebuild their lives.

The 31 commutations were for people convicted of nonviolent drug crimes, who were currently serving time in home confinement and taking advantage of education and employment opportunities, the White House said. Many would have received a lower sentence if they were charged with the same offense today due to changes in the law, including the First Step Act, a bipartisan criminal justice bill signed into law by President Donald Trump in December 2018.

At a briefing for reporters, Susan Rice, director of the Domestic Policy Council, described the series of measures as prudent steps to improve public safety while safeguarding taxpayer dollars by increasing the chances that people released from prison will have opportunities to live rehabilitated lives.

“As many as one in three Americans have a criminal history record, yet far too many of them face barriers to getting a job or home, obtaining health care or finding the capital to start a business,” Rice said. “By investing in crime prevention and a fairer criminal justice system, we can tackle the root causes of crime, improve individual and community outcomes and ease the burden on police.”

The effort includes more than 100 actions across 20 agencies, ranging from the Department of Education to the Department of Housing and Urban Development to the Bureau of Prisons. Under the changes, people leaving prison could have more access to housing vouchers, Pell grants, food benefits and small business loans, Rice said.

These official docuements from the The White House provide a lot more of the particulars:

FACT SHEET: Biden-⁠Harris Administration Takes Action During Second Chance Month to Strengthen Public Safety, Improve Rehabilitation in Jails and Prisons, and Support Successful Reentry

Clemency Recipient List

The full 77-page White House Alternatives, Rehabilitation, and Reentry Strategic Plan

Both the timing and the subsatnces of these actions seem quite intriguing, though I am going to review the details and reflect a bit before providing any distinctive take. I will thus be content now to just say kudos to Prez Biden, because even modest actions in this arena are always meaningful and important.

Lengthy press series explores the modern history of the death penalty and executions in Arizona

Throughout this week, the Arizona Mirror has run a series of lengthy articles on the death penalty authored by journalist Michael Kiefer and defense attorney Dale Baich.  This set of pieces is called “Poorly Executed: How Arizona has failed at carrying out the death penalty,” which provides a sense of its main themes, and is described as "a five-part series exploring the modern history of the death penalty and executions in Arizona."  Here are headlines and links to the five pieces:

Part 1: Witness to an execution

Part 2: The ‘Golden Age of executions’ comes to an end

Part 3: IVs and ironies

Part 4: ‘The experiment failed,’ halting executions in Arizona

Part 5: The politics behind executions

US Sentencing Commission releases "geographic sentencing data" from FY22

I just saw that the US Sentencing Commission this week posted here its "geographic sentencing data" for Fiscal Year 2022.  The USSC webpage has links to localized data reports that provide all sorts of fascinating "data slices" about the federal sentencing world. Here is how the webpage explains the over 100 localized reports:

These reports examine federal sentencing statistics from each judicial district, the districts within each judicial circuit, and the districts within each state. Each report compares the statistics from the respective district, circuit, or state to the nation as a whole. Each set consists of the following figure and tables:

• Figure A - Federal Offenders by Type of Crime
• Figure B - Distribution of Primary Drug Type in Federal Drug Cases
• Table 1 - Distribution of Federal Offenders by Type of Crime
• Table 2 - Guilty Pleas and Trials in Each Circuit and District
• Table 3 - Guilty Pleas and Trials by Type of Crime
• Table 4 - Sentence Type by Type of Crime (National)
• Table 5 - Sentence Type by Type of Crime (District)
• Table 6 - Incarceration Rate of U.S. Citizen Offenders Eligible for Non-Prison Sentences by Type of Crime
• Table 7 - Sentence Length by Type of Crime
• Table 8 - Sentence Imposed Relative to the Guideline Range
• Table 9 - Sentence Imposed Relative to the Guideline Range in Each Circuit and District
• Table 10 - Sentence Imposed Relative to the Guideline Range by Type of Crime

Just a few clicks on some of the circuit reports and glances at Figure A highlight some interesting (though perhaps unsurprising) data about how very different caseload mixes can be in different regions.  For example, in the Fifth Circuit's district courts, nearly 60% of federal cases sentenced in FY 2022 were immigration cases, while about 20% were drug cases and less than 8% were firearm cases.  But, in the First Circuit's district courts, nearly 50% of the federal cases sentenced in FY 2022 were drug cases, while nearly 13% were firearm cases and less than 6% were immigration cases.

"Modernize the Criminal Justice System: An Agenda for the New Congress"

The title of this post is the title of this notable new report authored by Charles Fain Lehman, who is a fellow at the Manhattan Institute. Here is the report's executive summary:

Crime, particularly violent crime, is a pressing concern for the American people.  The surge in homicide and associated violence in the past three years has made voters skittish and prompted aggressive partisan finger-pointing.  This increase has not, however, prompted significant investment in our criminal justice system.  Ironically, as this report argues, this increase in violent crime is itself a product of fiscal neglect of that same system over the past decade.

Across a variety of measures, in fact, the American criminal justice system needs an upgrade.  Police staffing rates have been dropping since the Great Recession; prisons and jails are increasingly violent; court backlogs keep growing; essential crime data are not collected; and essential criminology research is not conducted.  These shortcomings contribute not only to the recent increase in violence but to America’s long-term violence and crime problems, problems that cost us tens of thousands of lives and hundreds of billions of dollars each year.

For too long, policymakers at all levels have failed to attend to this problem.  Instead, both the political left and right have subsumed criminal justice issues into the larger culture war, fighting over the worst excesses of the police or the horrors of criminal victimization.  Rather, they should look to past examples of federal policymaking in which lawmakers have used the power of the purse to dramatically improve the criminal justice system’s capacity to control crime.  Doing so again could ameliorate many of the major concerns voiced by both sides in the criminal justice debate.

As such, this report proposes an ambitious, $12-billion, five-year plan to bring the criminal justice system up to date. It outlines proposals to:

1. Hire 80,000 police officers;
2. Dramatically expand funding of public safety research, including creating an Advanced Research Projects Administration for public safety;
3. Rehabilitate failing prisons and jails with a carrot-and-stick approach;
4. Create and propagate national standards for criminal case processing;
5. Upgrade our data infrastructure, including by creating a national “sentinel cities” program.

Implementing these proposals would be a drop in the federal spending bucket, but they would likely have a dramatic and sustained impact on reducing the amount and cost of crime in America.

Eighth Circuit panel seemingly misreads the US Sentencing Commission's sentence reduction guideline amendment

I have previously blogged here and here about the US Sentencing Commission's decision to amend the so-called commpassionate release guideline, formally "§ 1B1.13 - Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A) (policy statement)."  There are lots of intricate elemens to this amendment, and one key provision concerned the authority of judges to consider "changes in the law" as a basis to satisfy the statutory requirement of finding "extraordinary and compelling reason" for a sentence reduction. 

This issue was the only one clearly dividing the new Commissioners: four Commissioners voted for a new provision -- § 1B1.13(b)(6) -- that expressly states that, in certain circumstances, "changes in the law ... may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant’s individualized circumstances."  Three other Commissioners voted againt this provision because they did not believe  the USSC should ever allow "changes in the law" to be considered in determining whether a defendant presents and "extraordinary and compelling reason" for a sentence reduction.

A helpful reader sent me an Eighth Circuit opinion, US v. Rodriguez-Mendez, No. 22-2399 (8th Cir. April 25, 2023) (available here), that seems to misread just what the USSC has done with this amendment to the reduction-in-sentence guideline.  In this case, the panel first explains that the Eighth Circuit had pervious "held that a non-retroactive change in law regarding sentencing ...  cannot contribute to a finding of ‘extraordinary and compelling reasons’ for a reduction in sentence under § 3582(c)(1)(A)."  Then the panel rejects the defendant's argument that the Supreme Court's opinion in Concepcion v. US, 142 S. Ct. 2389 (2022), required changing that prior holding.  (I disagree with that reading of Concepcion, as explained here, but a number of courts have adopted it.)  

Then, in the last few paragraphs of this new Rodriguez-Mendez opinion, the Eighth Circuit panel mentions that the Sentencing Commission’s proposed amendment to § 1B1.13.  But after quoting key provisions of the amendment, the panel states (with my emphasis added): "It thus appears that the Commission proposes to adopt (or to express more clearly) that nonretroactive changes in sentencing law may not establish eligibility for a § 3582(c)(1)(A) sentence reduction, as we held in Crandall, but may be considered in exercising a court’s discretion whether to grant compassionate release relief to an eligible defendant, consistent with the Supreme Court’s decision in Concepcion."   But this seems flatly wrong because, as noted above, the new language of § 1B1.13(b)(6) expressly states that, in certain circumstances, "changes in the law ... may be considered in determining whether the defendant presents an extraordinary and compelling reason."  In other words, the Commission in this new guideline is providing that nonretroactive changes in sentencing law CAN establish eligibility for a § 3582(c)(1)(A) sentence reduction in some circucumstances.  (And, notably, the defedant in this case, Rodrigo Rodriguez-Mendez, might well meet the circumstances the Commission set forth for "change in the law" to provide the basis for a sentence reduction.)

I have argued in this post that the new amended provision of "§ 1B1.13 - Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A)" could and should be seen to now overrule prior circuit rulings that changes in law cannot provide a basis for a sentence reduction.  But some may reasonably claim that the amendment to § 1B1.13 only should be given effect after November 1, 2023, which is when all the new guideline amendments will become effective.  But I do not think anyone can reasonably claim, as the Eighth Circuit panel seems to do here, that the new amended guideline serves to codify the claims of some circuits that changes in law can never provide a basis for a sentence reduction.

Three Justices dissent from denial of cert in Tennessee felony-murder capital case

The Supreme Court this morning issued this order list with a lot of certiorari denials (and grants in two related cases involving government social-media activity).  There was one notable statement in dissent from the denial of certiorari by Justice Sotomayor, joined by Justices Kagan and Jackson, in Burns v. Mays, No. 22–5891.  The seven-page dissent starts this way:

Petitioner Kevin Burns, a defendant sentenced to death for felony murder, brought a 28 U.S.C. §2254 petition claiming inadequate assistance of counsel at the penalty phase of his trial.  Burns asserts that counsel failed to present mitigating evidence tending to show that he did not shoot either of the two victims killed during a robbery in which he participated. Such evidence does not bear on Burns’ guilt, since his participation in the underlying robbery suffices to render him guilty of felony murder.  Evidence that Burns did not pull the trigger, however, was plainly relevant to the jury’s determination whether to sentence him to death.  The Sixth Circuit avoided this obvious conclusion only by mischaracterizing Burns’ claim as being about counsel’s failure to introduce residual doubt evidence (i.e., evidence that Burns was not, in fact, guilty of felony murder).  From there, the Sixth Circuit concluded that the claim must fail because this Court has never established a right to introduce residual doubt evidence at sentencing.

Burns argues, and the State does not contest, that the Sixth Circuit’s analysis turned on two erroneous legal assumptions and clearly conflicts with several decisions of this Court.  Burns asks this Court to take summary action to correct these fundamental legal errors so that his claim may be fairly considered before the State executes him. The Court, however, declines to intervene.  I would summarily vacate the error-laden (and precedential) decision below and remand for further consideration of Burns’ claim.  I respectfully dissent from the Court’s failure to do so.