Sentencing Law and Policy

Recapping and assessing a SCOTUS week full of federal criminal case oral arguments

This week's biggest legal news is surely the reports of a notable state indictment out of the Big Apple.  But, as previously previewed here, this week was also a big one for federal criminal case oral arguments before the US Supreme Court.  With help from SCOTUSblog and a few other sources, here are some recaps of how these arguments went:

United States v. Hansen, No. 22-179:

• From Roll Call, "Supreme Court scrutinizes free speech limits of immigration law"
• From SCOTUSblog, "Justices divided on the constitutionality of the federal law that bans 'encouraging' immigrants to remain unlawfully in the United States"

Lora v. United States, No. 22-49:

• From Courthouse News Service, "Supreme Court seems split over Bronx drug dealer’s sentence in rival’s murder"
• From SCOTUSblog, "Court seems reluctant to extend ban on concurrent sentences in Armed Career Criminal Act"

Smith v. United States, No. 21-1576:

• From Bloomberg Law, "Most Justices Skeptical of Retrial Claim in Wrong Venue Case"
• From SCOTUSblog, "Venue is a platypus, a mixed-up animal" 

Samia v. United States, No. 22-196:

• From the New York Times, "Supreme Court Considers a Mercenary’s Confession and the Confrontation Clause"
• From SCOTUSblog, "Justices search for a clear rule for confessions in joint trials" 

Though I have not really followed any of these cases all that closely, I am still prepared to provide an "over/under" betting line at 2.5 wins for federal criminal defendants from this week's SCOTUS cases.  It seems the federal criminal defendant has a pretty good shot of prevailing in Hansen and Lora, but probably not in Smith, and Samia probably should be viewed as a toss up.  But perhaps folks who have followed these cases more closely will have a wiser take.

So very excited for "Frankel at 50: A Half-Century’s Perspective on Criminal Sentences: Law Without Order"

I am so very pleased and excited to start blogging about a day-long program that I have helped put together for next month that should be a "must-see" activity for anyone in the sentencing space, especially in the New York City area.  Specifically, on April 24, 2023, as detailed on this New York City Bar Association webpage and in this complete program agenda, we are doing a full day of sentencing-focused panels as part of an event titled "Frankel at 50: A Half-Century’s Perspective on Criminal Sentences: Law Without Order."   Here is the basic event decription from the NYCBA webpage:

Published in 1973, Judge Marvin Frankel’s book Criminal Sentences: Law Without Order, assailed just about every aspect of existing arbitrary sentencing practices and advocated for the creation of a “commission on sentencing” to be tasked with developing guidelines for “the numerous factors affecting the length or severity of sentences.”  Judge Frankel’s book paved the way for modern sentencing reform, spurring the enactment of numerous sentencing reforms at the state level and the passage of the Sentencing Reform Act of 1984 which completely rebuilt the federal sentencing system.  As a result, Criminal Sentences: Law Without Order has affected tens of millions of defendants sentenced in state and federal courts over the last half-century.

At the same time, some have suggested his proposals — or at least their implementation — have contributed significantly to the growth of prison populations in recent decades.  Reflecting on Judge Frankel’s book a half-century later can provide profound insights and perspectives on how modern sentencing has evolved and where it should be headed.  The one-day symposium will bring together sentencing experts from academia and law practice to discuss various aspects of Judge Frankel’s ideas, how they have played out over the last half-century, and whether they should guide us for the next fifty years.

This full-day event will include a light breakfast, multiple plenary panels, lunch, two sets of concurrent panels, a fireside chat, and a closing reception.  Please find the day's complete agenda here.

If you click through to see the full program, you will see the extraordinary array of topics planned for discussion by an extraordinary array of judges and practitioners and academics.  I feel incredible fortunate to have had the chance to put this program togther with some many helpful folks assocaited with the Council on Criminal Justice, the Drug Enforcement and Policy Center, and the New York City Bar Association. 

Because this is an in-person event, folks will need to make their way to NYC to participate (but the program certainly justifies the trip).  In addition, in conjunction with this event, the we have solicited a big set of article for a "Frank at 50" special issue of the Federal Sentencing Reporter.  So, though not the same as a trip to the Big Apple, folks who cannot make it to the event can still keep an eye out for a future FSR issue on these topics.

Florida Gov DeSantis reportedly gearing up to attack former Prez Trump for his support of FIRST STEP Act

This notable and lengthy new New York Times article, headlined "DeSantis Burnishes Tough-on-Crime Image to Run in ’24 and Take On Trump," reports that Florida's Governor plans to assail former Prez Trump for his record on crimnal justice reform. Here are excerpts:

Gov. Ron DeSantis of Florida has spent months shoring up a tough-on-crime image as he weighs a run for the White House, calling for stronger penalties against drug traffickers and using $5,000 bonuses to bolster law-enforcement recruitment to his state.  Now, Mr. DeSantis and his allies plan to use that image to draw a contrast with the Republican front-runner in the 2024 race, former President Donald J. Trump.

Mr. DeSantis and his backers see the signature criminal-justice law enacted by Mr. Trump in 2018 as an area of weakness with his base, and Mr. DeSantis has indicated that he would highlight it when the two men tussle for the Republican nomination, according to three people with knowledge of Mr. DeSantis’s thinking.  That law, known as the First Step Act, reduced the sentences for thousands of prisoners....

One potentially complicating factor for Mr. DeSantis: He voted for the initial House version of the First Step Act in May 2018, while still a congressman.  He resigned his seat in September 2018 after winning the Republican primary for governor, and was not in the House to vote for the more expansive version of the sentencing reform bill that ultimately passed into law in December 2018....

In January, Mr. DeSantis announced a series of legislative measures for the coming session in Florida, which, among other actions, would toughen penalties against drug traffickers. “Other states endanger their citizens by making it easier to put criminals back on the street. Here, in Florida, we will continue to support and enact policies to protect our communities and keep Floridians safe,” Mr. DeSantis said in a statement at the time. “Florida will remain the law-and-order state.”...

Mr. Trump is aware of his vulnerability on the crime issue because of his record as president, according to people close to him.  Shortly after leaving office he began trying to inoculate himself against attacks by promising an uncompromising law-and-order agenda, with especially harsh treatment of drug dealers.

In a speech last year at the Ronald Reagan Presidential Library, Senator Tom Cotton, an Arkansas Republican who was a staunch supporter of most of Mr. Trump’s agenda but a critic of the First Step Act, called Mr. Trump’s moves on criminal justice reform the “worst mistake” of his term.

Since becoming a candidate for the third time in November, Mr. Trump has released a handful of direct-to-camera videos discussing policy.  In one, he proposed strengthening police departments with additional hiring and criticized what he called “radical Marxist prosecutors who are abolishing cash bail, refusing to charge crimes and surrendering our cities to violent criminals.”  He also called for deploying the National Guard into areas with high crime rates.  But he did not address sentencing, the core of his surprisingly lenient approach in office — and one that was at odds with his law-and-order campaign talk.

Asked to comment, Steven Cheung, a spokesman for Mr. Trump’s campaign, described Mr. Trump as “the law-and-order president that cracked down on crime and put away violent offenders, resulting in the lowest crime rate in decades.” Mr. Cheung accused Mr. DeSantis of giving “a safe haven for violent felons” that has resulted “in rampant crime in Florida” and said that Mr. Trump had received support from law enforcement officials around the country. And Mr. Cheung pointed to an array of crime statistics in Florida that the Trump campaign planned to highlight as unfavorable for Mr. DeSantis.

As president, following the advice of his son-in-law and senior adviser, Jared Kushner, in December 2018, Mr. Trump signed the First Step Act, which resulted in more than 3,000 inmates being released early from federal prison.  A Republican official who is not affiliated with Mr. DeSantis and who has closely tracked criminal recidivism among people released from prison because of the First Step Act, said that the volume of those releases would provide fodder for attack ads against Mr. Trump.

On Wednesday, Pedro L. Gonzalez, a conservative with a large online following who often attacks Mr. Trump from the right and defends Mr. DeSantis, tweeted that the man charged with assaulting a U.S. Senate staff member over the weekend was “released from prison thanks to Trump’s First Step Act” and linked to a Fox News story about the case. Many of those released under the First Step Act had been imprisoned for selling drugs — a crime that Mr. Trump now says publicly that he wants to punish with the death penalty because of the destruction wrought by illegal drugs....

“Did it for African Americans. Nobody else could have gotten it done,” Mr. Trump wrote in response to a reporter’s question in 2022, adding, “Got zero credit.” The word “zero” was underlined for emphasis. But in June 2020, as Americans massed on the streets to protest the police killing of George Floyd, Mr. Trump told his aides privately, according to Axios, that it was a mistake to have listened to Mr. Kushner....

In his final six months in office, Mr. Trump was erratic in his criminal justice policies. He went on a historic federal execution spree. But he also went on a pardon spree — handing out many dubious pardons, including one to a drug smuggler with a history of violence, through a process heavily influenced by Mr. Kushner. And by the time Mr. Trump was plainly looking for a future in politics again in 2021, he began talking publicly about executing drug dealers.

When are character letters NOT helpful in a fraud sentencing? When they are fraudulent.

In various posts in this space and elsewhere, one sometimes sees debates over the impact and import of submitting an array of character letters on behalf of a defendant facing sentencing.  I sense that, generally speaking, judges find these kinds of letters helpful, and they can often lead to better sentencing outcomes if well developed and effectively presented.  But, this news story from a federal sentencing this week in Pittsburgh provide a distinct view of these matters:

As far as character letters go, Randy Frasinelli submitted the best.  They came from corporate executives, nonprofit groups and an Ivy league university.  There’s one from the bishop of the Diocese of Pittsburgh.  And another from Leadership Pittsburgh.

There’s even one from former Allegheny County Executive Jim Roddey. Well, it was supposed to be from him.  But, if it was, Roddey spelled his own name wrong — twice.  According to the federal government, all of the letters are fake.

Frasinelli, 66, of Scott, pleaded guilty to bank fraud and money laundering in federal court in August after investigators said that he fraudulently obtained $3.8 million in covid-19 Paycheck Protection Program loans during the pandemic.  They said he used the money to buy artwork, luxury vehicles and firearms...

In its case, the government laid out a complex scheme through which Frasinelli applied for the loans in the names of four separate companies and then submitted falsified tax records and payroll records.  Although he was already facing federal charges — and was out on bond — prosecutors said, Frasinelli applied for another fraudulent loan a month after his arrest seeking another half-million dollars.

Now, the U.S. Attorney’s office is accusing him of falsifying his own character letters to be used to mitigate his sentence.  He is scheduled to be sentenced on Wednesday by U.S. District Judge W. Scott Hardy. Whether the sentencing will occur, however, is up in the air.  Frasinelli’s defense attorney — the third he’s had in his federal case — on Saturday filed a motion to withdraw from representing him.

The sentencing did go forward yesterday, and here is another local press piece detailing how things transpired:

A Scott businessman who bilked the government out of nearly $4 million in COVID-19 relief funds, tried to do it again while out on bond and then forged character letters praising himself to present to a judge will spend 6.5 years in federal prison, the judge ruled Wednesday.

U.S. District Judge W. Scott Hardy chastised Randy Frasinelli, 66, before he issued the sentence, which will be followed by five years of supervised release. He said Frasinelli’s forged letters had eroded the court’s trust in him....

Frasinelli, as part of his plea, took responsibility for his actions. That acceptance of responsibility lowered the sentencing range with which Judge Hardy had to work.  As part of the [pre]-sentencing report sent to the judge, Frasinelli included letters from his children and other family members, along with 14 from other non-family members praising him as a businessman and person.  The letters were signed by politicians and business leaders.

In a filing last week, the U.S. Attorney’s Office wrote they’d discovered at least 13 of the 14 letters from non-family members were forgeries.  Attorneys said Frasinelli’s forged letters should negate any special considerations in relation to his sentencing.... The forged letters, attorneys wrote, should negate any reduction Frasinelli was set to receive for accepting responsibility.  Rather than the sentence of 63 to 78 months that prosecutors agreed to recommend, they said the judge should instead consider the non-mitigated range of 78 to 97 months.

For those not great at base-12 math, the 6.5 years of imprisonment imposed here amounts to 78 months, and so the top of the original guideline range calculated in this case as well as the bottom of the new range suggested by prosecutors. I suppose only the judge knows what sentence he might have given absent the forged letters, but I know this case is a useful reminder that sentencing determinations will often reflect post-offense-conduct behaviors both bad and good.

An encouraging(?) account of prospects for modest criminal justice reforms from the current Congress

The Washington Post has this new small piece about happenings inside the Beltway with this big headline "Is there any chance for criminal justice reform bills? Surprisingly, yes."  Here is the heart of part of the discussion (with one line highlighted by me for follow-up):

So in this tense partisan atmosphere, is there any chance Congress could consider even modest change to the criminal justice system?

Well, certainly nothing big — or even a bill along the lines of the First Step Act, a law to cut some federal prison sentences that President Donald Trump signed in 2018.  But some lawmakers and outside advocates say there are still opportunities to pass more limited legislation to make the criminal justice system less punitive.

Lawmakers including Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.) and Sen. Lindsey O. Graham (S.C.), the committee’s top Republican, introduced a bill last month to eliminate the disparity in federal sentencing for trafficking crack and cocaine.  The bill passed the House on an overwhelming bipartisan vote in 2021 but died in the Senate.

And Reps. Kelly Armstrong (R-N.D.), David Trone (D-Md.), John Rutherford (R-Fla.) and Lisa Blunt Rochester (D-Del.) started a bipartisan task force last month to try to pass legislation to ease the barriers to prisoners reentering society when their sentences are up.  “There’s a ton of Republicans that just want to do the right thing,” Trone said in an interview on Tuesday before he spoke at a reception hosted by the conservative R Street Institute meant to build support for the legislation. “And there’s a minority of Republicans who live on the rhetoric of, ‘Let’s stop everything.’”

It’s too early to say whether any of the bills will pass.  But Jason Pye, who lobbied for the First Step Act while he was vice president of legislative affairs at FreedomWorks, a conservative group, said he thought Republicans could move legislation once House Republicans tire of passing other bills that stand no chance of clearing the Democratic-held Senate.  “As far as I’m concerned, this is one of the few areas where there is not only bipartisan consensus, but support [from across the Republican] conference to do something,” said Pye, who is now director of rule-of-law initiatives at the Due Process Institute.

Especially as we march toward a big election year, I am not sure that House Republicans are likely to ever "tire of passing other bills that stand no chance of clearing the Democratic-held Senate."  But I am sure that there are a range of (small?) federal criminal justice reform bill that could get to the desk of President Biden if serious folks on both sides of the aisle get seriously committed to actually getting something done.  In addition to the items noted above, for example, I continue to want to believe some form of mens rea reform could be a part of a bipartisan effort to make our fedeeral criminal justice system for fair and effective.

Tenth Circuit deepens split over considering retribution in revocation of federal supervised release

In this post a few weeks ago, I flagged a recent Congressional Research Service document which fully detailed a jurisprudential divide among the circuits over justifications for supervised release revocation.  As that document detailed: 

The federal appeals courts disagree as to whether, and to what extent, retribution may justify the revocation of supervised release in light of this statutory omission. On one side of the divide, the U.S. Courts of Appeals for the First, Second, Third, Sixth, and Seventh Circuits have held that federal courts may consider retribution in making revocation decisions. On the other side, the Fourth, Fifth, and Ninth Circuits have concluded that courts either may not consider retribution in these decisions at all or may consider it only to a limited degree.

Notably, yesterday a Tenth Circuit panel jumped into the action and agreed with the minority of other circuit via US v. Booker, No. 22-7000 (10th Cir. March 28, 2023) (available here). Here is how the 17-page opinion in Booker gets started:

After Donald Joe Booker, Jr. repeatedly violated the terms of his supervised release, the district court revoked his supervision and sentenced him to twenty-four months in prison, the statutory maximum.  For the first time on appeal, Mr. Booker argues that the district court erroneously based his sentence for violating supervised release on retribution whereas the statute governing the revocation of supervised release implicitly prohibits considering retribution.  See 18 U.S.C. § 3583(e).

We review Mr. Booker’s sentence for plain error.  Clarifying the scope of 18 U.S.C. § 3583(e), we hold that district courts may not modify or revoke a term of supervised release based on the need for retribution.  Because the district court quoted from a § 3553(a) sentencing factor representing retribution, we conclude that the district court erred. But even assuming this error was plain, Mr. Booker has not shown that it affected his substantial rights because we conclude there is no reasonable probability that his sentence would have been shorter had the court not erred. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we AFFIRM Mr. Booker’s twenty-four-month sentence.

Because of the plain error issue, this new Booker case would likely not make a good vehicle for SCOTUS to resolve this deep circuit divide over supervised release decision-making. (And, as a silly aside, I certainly would not be keen to have another major "Booker" sentencing ruling.)  But, given US Sentencing Commission data showing over 20,000 supervised release violation hearings taking place every year, there are on average nearly 100 federal defendants at least potentially impacted by this jurisprudential divide every single day in federal courts.  SCOTUS really should resolve this matter sooner rather than later if we think some semblance of equal justice is of importance in our federal criminal sentencing systems.

Another push to try to end the death penalty in Ohio

As reported in this local piece, there is another effort afoot to abolish capital punishment in the Buckeye state.  The article is fittingly headlined "Lawmakers call for an end to capital punishment in Ohio. Again."  Here are excerpts:

Although Ohio hasn't executed anyone since 2018, a dozen state senators are banding together to abolish the death penalty. It is unclear if they'll garner enough support to end capital punishment in Ohio.

The first major hurdle is Senate President Matt Huffman, R-Lima, who opposes ending the death penalty. However, Huffman said he would hold a vote on the bill if a majority of the 33-member Senate wanted it.

The effort to end the death penalty is a familiar one for State Sen. Nickie Antonio, D-Lakewood. She has sponsored abolition bills every session for the past dozen years. "I believe it's indeed time for the state of Ohio to take the pragmatic, economically prudent, principled step to end capital punishment, which has been found to be expensive, impractical, unjust, inhumane and in the past even erroneous," Antonio said Tuesday at a statehouse news conference. She noted 11 people on Ohio Death Row have been exonerated.

Antonio said that every year she introduces the abolition bill, she has more bipartisan support. This time, she's starting out with five Republican and seven Democratic co-sponsors.  State Sens. Steve Huffman, R-Tipp City, and Michele Reynolds, R-Canal Winchester, both said their religious faith spurred them to join Antonio's effort. Steve Huffman is Matt Huffman's cousin.

"I believe that life begins at conception and ends at natural death. Like many people of faith, I believe that all human lives are deserving of dignity... even people that have committed heinous crimes," Reynolds said. The bill would replace capital punishment sentences with life in prison without parole.

Currently, there are 138 people on Ohio Death Row.  The state has executed 56 men since February 1999 when it resumed executions.  No executions have been carried out since Republican Mike DeWine became governor in January 2019.  DeWine has postponed executions, citing issues in obtaining supplies of lethal injection drugs.

DeWine, who voted for the current law when he was a state senator, has remained mum about his current personal view of the death penalty.  County prosecutors and Ohio Attorney General Dave Yost support the death penalty. Yost, a Republican, issued a statement that said Ohio's capital punishment system fails to deliver justice to families of murder victims.

Some prior related posts:

• Fascinating death penalty development in Ohio (from 2012)
• Might execution woes really lead Ohio's (deep red) General Assembly to repeal the death penalty? (from 2019)
• Can a new conservative group help get the death penalty abolished in Ohio? (from 2020)
• New poll indicates considerable support for death penalty repeal among Ohio GOP legislators (from 2022)

Intriguing new PPI report on "unregulated growth of e‑messaging in prisons"

The Prison Policy Initiative has this new new report authored by Mike Wessler on a paerticular technology in prison titled "SMH: The rapid & unregulated growth of e‑messaging in prisons."  Here is how it begins (with links from the original):

Over the last twenty years, advocates and regulators have successfully lowered the prices of prison and jail phone rates.  While these victories garnered headlines and attention, the companies behind these services quietly regrouped and refocused their efforts.  Seeking different ways to protect their profits, they entered less-regulated industries and offered new products to people behind bars.  One new service in particular — text-based electronic messaging or “e-messaging” — has experienced explosive and unregulated growth.  As a result, rather than living up to its potential as a way to maintain connections between people in prison and the outside world — something that benefits all of us — high costs and shoddy technology have made e-messaging little more than the latest way these companies drain money from incarcerated people and their loved ones.

In 2016, we released a groundbreaking report that took a first look at e-messaging, sometimes — but incorrectly — called “email.”  At that time, the technology was experimental, untested, and viewed skeptically by many correctional administrators.  Since then, though, it has become common inside prison walls.

To better understand this explosive growth in e-messaging, we examined all 50 state prison systems, as well as the Federal Bureau of Prisons (BOP), to see how common this technology has become, how much it costs, and what, if anything, is being done to protect incarcerated people and their families from exploitation.  We found an industry that is in flux, expanding quickly, and has yet to face the legislative and regulatory oversight it desperately needs.

"In Their Names: The Untold Story of Victims’ Rights, Mass Incarceration, and the Future of Public Safety"

The title of this post is the title of this recently published book authored by Lenore Anderson.  I am pleased that I will have an opportunity to speak with the author and one of her colleagues during this event this coming Wednesday at 12noon.  Here is the event description:

Lenore Anderson has built her career on reforming criminal justice, both in her previous position as chief of policy in the San Francisco District Attorney's Office and in her current role as co-founder and president of Alliance for Safety and Justice (ASJ).  In her debut book, "In Their Names: The Untold Story of Victims’ Rights, Mass Incarceration, and the Future of Public Safety," Anderson examines how the United States’ focus on victims’ rights often perpetuates mass incarceration.  She argues that bureaucrats justify increased incarceration under the guise of public safety, rather than creating solutions to better serve crime victims.

Join the Drug Enforcement and Policy Center (DEPC) for a discussion with Lenore Anderson and Shakyra Diaz, the Chief of Federal Advocacy at ASJ, and moderated by DEPC Executive Director Douglas Berman.  Panelists will discuss how state leaders and advocates can create effective public safety solutions that replace over-incarceration.

The registration link for this online event can be found here.

Continuing criticism for Prez Biden's Justice Department for attending to the rule of (capital) law

Last month, as discussed here, the Washington Post published a lengthy article engaging in considerable hand-wringing about federal death penalty developments under the headline "Justice Department standards on federal death penalty called confusing."  This month, the AP has this lengthy article with some similar hand-wringing under the headline "Biden’s Justice Dept. keeps hard line in death row cases."  Here are excerpts:

Death penalty opponents expected Biden to act within weeks of taking office to fulfill his 2020 campaign promise to end capital punishment on the federal level and to work at ending it in states that still carry out executions. Instead, Biden has taken no steps toward fulfilling that promise.

But it’s not just inaction by Biden.  An Associated Press review of dozens of legal filings shows Biden’s Justice Department is fighting vigorously in courts to maintain the sentences of death row inmates, even after Attorney General Merrick Garland temporarily paused executions.  Lawyers for some of the over 40 death row inmates say they’ve seen no meaningful changes to the Justice Department’s approach under Biden and Trump.

“They’re fighting back as much as they ever have,” said Ruth Friedman, head of the defender unit that oversees federal death row cases.  “If you say my client has an intellectual disability, the government ... says, ‘No, he does not.’ If you say ‘I’d like (new evidence),’ they say, ‘You aren’t entitled to it.’”

Administration efforts to uphold death sentences for white supremacist Dylann Roof, who killed nine Black church-goers, and Boston Marathon bomber Dzhokhar Tsarnaev are better known. Lower-profile cases ... have drawn less scrutiny.  The Justice Department confirmed that since Biden’s inauguration it hasn’t agreed with a single claim of racial bias or errors that could lead to the overturning of a federal death sentence....

In announcing the 2021 moratorium, Garland noted concerns about how capital punishment disproportionately impacts people of color and the “arbitrariness” — or lack of consistency — in its application.  He hasn’t authorized a single new death penalty case and has reversed decisions by previous administrations to seek it in 27 cases.

Garland recently decided not to pursue death for Patrick Crusius, who killed nearly two dozen people in a racist attack at a Texas Walmart. His lawyers have said he had “severe, lifelong neurological and mental disabilities.” He could still be sentenced to death under state charges.  Garland also took the death penalty off the table for a man accused in 11 killings as part of a drug trafficking ring.... 

Prosecutors decide before trial whether or not to seek the death penalty, and current death row inmates were all tried under previous administrations. Prosecutors have less leeway after a jury’s verdict than before trial.  Court challenges after trials are also often not about whether it was appropriate to pursue the death penalty, but whether there were legal or procedural problems at trial that make the sentence invalid.  “It’s a very different analysis when a conviction has been entered, a jury has spoken,” said Nathan Williams, a former Justice Department lawyer who prosecuted Roof. “There has to be a respect for the appellate process and the legal approaches that can be taken.”

A Justice Department spokesman said prosecutors “have an obligation to enforce the law, including by defending lawfully obtained jury verdicts on appeal.” The department is working to ensure “fair and even-handed administration of the law in capital-eligible cases,” he said.  Inmate lawyers dispute that prosecutors have no choice but to dig in their heels, saying multiple mechanisms have always existed for them to fix past errors.

Justice officials announced this month that they wouldn’t pursue death in the resentencing of Alfonso Rodriguez Jr., convicted of killing North Dakota student Dru Sjodin.  But that only happened after a judge vacated the original death sentence.  Notably in 2021, the department agreed with lawyers for Wesley Coonce, sentenced to death for killing a fellow inmate in a mental health unit, that lower courts should look again at intellectual disability questions in his case. But the Supreme Court disagreed, declining to hear his case or remand it to lower courts....

Garland’s criteria for letting some capital cases proceed isn’t clear, though the department often consults victims’ families. Some feel strongly that suspected or convicted killers should face death.  Inmate attorneys have asked for all capital cases to get a fresh look. Garland has appeared to take one step in that direction.

The department this year restored written guidance emphasizing that staff can be proactive in fixing egregious errors in capital cases, though none has invoked that option.  Garland also re-set processes in which capital defendants can, in certain circumstances, ask the department to consent to their bids for relief.

Even though this article primarily higlights various ways in which AG Garland has not kept a "hard line" on capital cases, the headline and theme of the piece seems to be focused on the notion that DOJ ought not be seeking to uphold presumptively lawful death sentences. 

Prior related post:

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

Justice Gorsuch (joined by Justice Kavanaugh) dissents from denial of cert in criminal contempt case

The Supeme Court's new order list this morning has only one cert grant in a civil case, but it concludes with a notable five-page dissent from the denial of certiorari in Donzinger v. US, No. 22–274.  Here is part of the factual backstory as explained in the dissent authored by Justice Gorsuch and joined by Justice Kavanaugh involving prosecution of a lawyer for criminal contempt:

When Mr. Donziger failed to comply fully with the court’s orders, it held him in criminal contempt and referred the matter to the U. S. Attorney’s Office for prosecution.  See 38 F. 4th 290, 295 (CA2 2022).  After some deliberation, however, the U.S. Attorney “‘respectfully declined’” to take up the case. Ibid. (alteration omitted).

Apparently displeased with this decision, the district court responded by setting up and staffing its own prosecutor’s office. Ibid. In the bench trial that followed, that office secured a conviction and the court sentenced Mr. Donziger to six months in prison. Ibid.  Throughout these proceedings and on appeal, Mr. Donziger objected.  He argued that the district court had no lawful authority to override the Executive Branch’s nonprosecution decision and that our Constitution’s separation of powers exists in no small measure to keep courts from becoming partisans in the cases before them.  Despite his arguments, the Second Circuit affirmed Mr. Donziger’s conviction. Id., at 306. Judge Menashi dissented. Id., at 306–315.

Justice Gorsuch goes on to explain the shaky precedents and laws cited to support the unusual process for convicting the defendant here.  And he concludes the dissent this way:

However much the district court may have thought Mr. Donziger warranted punishment, the prosecution in this case broke a basic constitutional promise essential to our liberty.  In this country, judges have no more power to initiate a prosecution of those who come before them than prosecutors have to sit in judgment of those they charge.  In the name of the “United States,” two different groups of prosecutors have asked us to turn a blind eye to this promise. Respectfully, I would not.  With this Court’s failure to intervene today, I can only hope that future courts weighing whether to appoint their own prosecutors will consider carefully Judge Menashi’s dissenting opinion in this case, the continuing vitality of Young, and the limits of its reasoning.  Our Constitution does not tolerate what happened here.

A SCOTUS week full of federal criminal case oral arguments

In addition to a schedule for the coming week that includes issuing orders (on Monday) and opinions (on Tuesday), the Supreme Court has six oral arguments on its calendar.  Four of those cases are federal criminal matters, and here are the basics with the help of SCOTUSblog:

Monday 3/27

United States v. Hansen --- Issue: Whether the federal criminal prohibition against encouraging or inducing unlawful immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional on First Amendment overbreadth grounds.

 

Tuesday 3/28

Lora v. United States --- Issue: Whether 18 U.S.C. § 924(c)(1)(D)(ii), which provides that “no term of imprisonment imposed … under this subsection shall run concurrently with any other term of imprisonment,” is triggered when a defendant is convicted and sentenced under 18 U.S.C. § 924(j).

Smith v. United States --- Issue: Whether the proper remedy for the government’s failure to prove venue is an acquittal barring re-prosecution of the offense, as the U.S. Courts of Appeals for the 5th and 8th Circuits have held, or whether instead the government may re-try the defendant for the same offense in a different venue, as the U.S. Courts of Appeals for the 6th, 9th, 10th and 11th Circuits have held

 

Wednesday 3/29

Samia v. United States --- Issue: Whether admitting a codefendant’s redacted out-of-court confession that immediately inculpates a defendant based on the surrounding context violates the defendant’s rights under the confrontation clause of the Sixth Amendment.

Is support for criminal justice reform in red states really still "strong"?

The question in the title of this post is prompted by this lengthy new Arnold Ventures piece titled "Red State Support for Criminal Justice Reform Remains Strong."  I recommend the piece in full, in part because it has plenty of notable content even though its contents do not fully support the title of the piece.  Here are some extended excerpts:

Partisans and pundits like to present criminal justice reform as an issue that pits red states against blue states.  But beyond the headlines, policymakers from both sides of the aisle are working to build a criminal justice system that is more effective, efficient, accountable, and just.  Even following the spike in crime during the Covid-19 pandemic, bipartisan commitment to criminal justice reform has remained remarkably robust — including leadership from conservative coalitions....

In North Carolina, Conservatives for Criminal Justice Reform (CCJR) has gained traction since its founding in 2016 and has advanced several pieces of reform legislation. Their first goal was raising the juvenile age so that a 16- or 17-year-old charged with a low-level felony or misdemeanor would not enter the adult court system.... Other wins included the General Assembly and Senate’s unanimous passage of the Second Chance Act in 2019, which allowed the expungement of nonviolent charges, and Senate Bill 300 in 2021, which was sponsored by three Republican state senators. That bill standardized police officer training and created a database to track uses of force resulting in death or serious injury....

Another organization aiming to reach both sides of the aisle is R Street Institute, a D.C.-based think tank.  Recently, the organization has worked on initiatives concerning the cost-saving success of police-led juvenile diversion programs and cite-and-release programs as an alternative to arrest....

Over the last decade, policy change around marijuana has progressed rapidly.  In November 2022, Maryland and Missouri voters approved ballot measures to legalize recreational marijuana, meaning that it is now legal in just under half of all states (and decriminalized in a majority of states).  Additionally, some of the remaining states are poised to reexamine their cannabis laws this year, including Pennsylvania, Hawaii, Texas, and Oklahoma.

Last October, Oklahoma Gov. Kevin Stitt — a Republican who has become a national leader in red state criminal justice reform — ordered a special election for State Question 820, which would have legalized recreational marijuana use. While the referendum ultimately failed, it garnered significant Republican support in the relatively conservative state. It also included some of the most comprehensive marijuana criminal justice reforms seen in any legalization effort to date and will serve as a benchmark for future efforts around the country....

Meanwhile, Americans for Prosperity, a conservative advocacy group, has set their sights on another drug policy long overdue for reform: sentencing disparities between crack and powder cocaine. For over 35 years, the sentencing imbalance between these two types of cocaine has disproportionately and undeniably impacted Black communities. In 2022, the bipartisan Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act narrowly failed in the Senate after passing the House, and in February 2023 it was reintroduced by a bipartisan group including U.S. Sens. Lindsey Graham and Rand Paul....

In the last five years, 10 states have passed clean slate legislation — policies that expand eligibility for the clearance or sealing of arrest and conviction records, as well as automate that process — for people who have remained crime-free.  Another half dozen states are expected to consider bills around the topic in the coming year or so.  Advocates say the popularity of these efforts is due to a principle all sides can agree on: Bureaucratic barriers should be removed so that more people can get back to work and support themselves....

“Clean Slate efforts have gained strong bipartisan support because they are deeply rooted in the American Dream — the belief that if you work hard, you should be able to get ahead and provide for your family,” says Sheena Meade, CEO of Clean Slate Initiative. ​“Also, people are starting to understand that those who benefit from a second chance are normal folks. One in three Americans have an arrest or conviction record, and most records are not for serious offenses.”

These clean slate policies can have massive impact. For instance, since the implementation of Pennsylvania’s clean slate law in 2019, over 40 million cases have been sealed, benefiting 1.2 million Pennsylvanians.... The Nolan Center for Justice, established by the American Conservative Union Foundation, is also a prominent voice for clean-slate policies. ​“We tailor our approach depending on who we speak to,” explains Kaitlin Owens, Nolan’s deputy director of advocacy. ​“For instance, reaching out to business leaders who can testify on the positives of hiring formerly incarcerated folks can go a long way.”

In addition to its support for people who have recently been released from incarceration, the Nolan Center also works to effectuate change within prisons. For instance, model policy written by Nolan in 2017 around improving the treatment of incarcerated women was distributed to state legislatures via the American Legislative Exchange Council (ALEC), a conservative nonprofit organization, resulting in 32 states — many of them southern Republican strongholds — passing such legislation.  One example is North Carolina, which in 2021 passed the Dignity Act limiting the use of restraints and cavity searches on pregnant women, providing access to menstrual products, and ensuring mothers are placed in facilities within a reasonable distance to their children. 

I find it both notable and interesting to see how Arnold Ventures is trying to make the case that "bipartisan commitment to criminal justice reform has remained remarkably robust."  I would not quibble with this claim if the title of this article focused on conservative advocacy groups because all the groups mentioned in the article (and others like Right on Crime) continue to press forward with thoughtful arguments that all sorts of criminal justice reforms are justified by conservative principles.  Put slightly differently, there is certainly a strong case to be made that conservative principles and conservative advocacy groups still strongly support criminal justice reforms.

But the article title claims that "Red State" support for reform "Remains Strong."  This claim could be supported, yet North Carolina is the only state extensively discussed in the article has actually enacted reforms (whereas failed and stalled reform efforts in Oklahoma and elsewhere are also discussed).  Putting aside that many consider North Carolina a purple state (in part because it has a Democratic governor), it is disappointing that the article does not mention an array of notable recent reforms in red states like Florida and Indiana and Ohio.  (And, though the article discusses some federal reform proposals, it does not discuss the recent "bipartisan" work of Congress to reject Washington DC's local effort to reform its criminal code.)

In sum, though I sincerely want to believe that the "bipartisan commitment to criminal justice reform has remained remarkably robust," I see the politics of crime and punishment circa Spring 2023 to be much more nuanced, dynamic and multi-dimensional with a lot of distinct political and practical factors pushing and pulling distinct reform efforts.  And while it is useful to see Arnold Ventures painting a rosy picture concerning modern reform politics, this picture does not seem entirely complete.

US Sentencing Commission schedules meeting for April 5, 2023, for promulgation of proposed guideline amendments

Via email I learned of the official announcement of the official public meeting when we can expect the US Sentencing Commission to vote to promulgate its first set of new amendments in five years.  The announcement is here on the Commission's website, and reads as follows:

Pursuant to Rule 3.2 of the Rules of Practice and Procedure of the United States Sentencing Commission, a public meeting of the Commission was scheduled for Wednesday, April 5, 2023, at 2:00 p.m.  The meeting will be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., in the Commissioners' Conference Room of Suite 2-500 (South Lobby).  The meeting will be streamed live and recorded.

The agenda follows:

• Vote to Adopt January 2023 Meeting Minutes
• Report from the Chair
• Report from the Staff Director
• Vote to Promulgate Proposed Amendments
• Adjourn

As highlighted in some of the prior posts below, there has been significant debate about the significant draft proposed amendments that were released by the USSC earlier this year. I am going to be very interested in seeing how the Commissioners settle on final proposed amendments (which will provide some insight as to how the various Commissioners are settling into their roles). 

A few recent related posts:

• US Sentencing Commissions publishes proposed guideline amendments and issues for comment 
• US Sentencing Commission to begin series of public hearings on its proposed guideline amendments
• US Sentencing Commission soon to begin second set of public hearings on proposed guideline amendments
• US Sentencing Commission posts over 1600 pages of public comment on proposed amendments 

A couple of notable new capital cases on the latest SCOTUS "relist watch"

I noticed that this latest Relist Watch by John Elwood over at SCOTUSblog includes two new relisted capital cases.  Though I am not sure cert should be expected on either of these two cases, they both raise "evergreen" issues in the capital punishment arena.  Here are John's full descriptions (with links from the original):

The state of Alabama sentenced Kenneth Eugene Smith, the respondent in Hamm v. Smith, to die for murdering Elizabeth Dorlene Sennett in a murder-for-hire plot.  Smith challenged Alabama’s lethal injection process as unconstitutionally cruel and unusual, and he proposed nitrogen hypoxia as an alternative means of execution under the Supreme Court’s procedures for method-of-execution claims.  The Eighth Amendment inquiry focuses on whether the state’s chosen method of execution “cruelly superadds pain to the death sentence” by asking whether the state has “a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain.”  The U.S. Court of Appeals for the 11th Circuit held that nitrogen hypoxia is “feasible and readily implemented” because Alabama adopted a statute authorizing that method of execution.  The state has petitioned for certiorari, arguing that that nitrogen hypoxia is not yet “feasible and readily implemented” because the state has not developed a protocol for that method of execution.

Kevin Burns, the petitioner in Burns v. Mays, was convicted and sentenced to death for killing two people (and wounding two others) during a botched robbery. A divided panel of the U.S. Court of Appeals for the 6th Circuit held that Burns had not received constitutionally ineffective assistance of counsel.  Before the Supreme Court, Burns argues that he received constitutionally ineffective assistance of counsel because his lawyer failed to ask the jury not to sentence him to death because of “residual doubt” about his guilt as permitted by state law, because he failed to introduce evidence that a co-defendant was the actual shooter, and because counsel conducted only one or two hours of work to prepare for the sentencing phase of the trial.  Burns argues that his entitlement for relief is so clear that the Supreme Court should summarily reverse.

"Carceral Deference: Courts and Their Pro-Prison Propensities"

The title of this post is the title of this new paper authored by Danielle Jefferis and available via SSRN. Here is its abstract:

Judicial deference to non-judicial state actors, as a general matter, is ubiquitous.  But “carceral deference” — judicial deference to prison officials on issues concerning the legality of prison conditions — has received far less attention in legal literature, and the focus has been almost entirely on its jurisprudential legitimacy.  This Article adds to the literature by contextualizing carceral deference historically, politically, and culturally.  Drawing on primary and secondary historical sources, as well as trial and other court documents, this Article is an important step to bringing the origins of carceral deference out of the shadows, revealing a story of institutional wrestling for control and unbridled dominance that has not, until now, been fully told.

That full telling is more important now than ever, as society grapples with the scope, scale, and racist impacts of American punishment.  Carceral deference plays an enormous role in the constitutional ordering of state power, as well as civil law’s regulation of punishment, a force that is often neglected within the criminal law paradigm. Moreover, the Supreme Court has demonstrated a recent skepticism of judicial deference in other areas of the law, suggesting an era in which traditional notions of deference are up for reconsideration.  Understanding how the foremost judicial norm in the prison law space developed gives us a foundation from which to better examine and critique the distribution of power among prisons, courts, and incarcerated people and the propriety of deference to prison officials; further informs our understanding of the systemic and structural flaws of the criminal punishment system; and adds to a growing body of literature analyzing the role of expertise in constitutional analyses across dimensions, from qualified immunity to the administrative state. 

Arizona Supreme Court refuses to order its Gov to proceed with an execution ... for now

As detailed in some recent prior posts (linked below), a local prosecutor and crime victims had sued the new Gov of Arizona after her pledge not to move forward with a scheduled execution.   Late yesterday, the Arizona Supreme Court, for the time being, refused to order the execution to move forward.  This local article, which includes a link to last night's order from the Arizona court, provides this review:

Gov. Katie Hobbs is not compelled to carry out an execution warrant for death row prisoner Aaron Gunches, according to an order from the Arizona Supreme Court.  The court, in a ruling issued Wednesday, says its role is to “issue a warrant of execution that authorizes the director of the state department of corrections to carry out the execution.”

But the law does not mandate the governor act on the warrant, the court said.... The court acknowledged that the Arizona Constitution provides that the governor “shall take care that the laws be faithfully executed," and that the governor is obligated to protect victims' rights to justice and due process, but it said those were "mixed questions of law and fact that are not properly before us."

The court denied the petition, made by Karen Price, sister of the victim, to force the governor to enforce the warrant.  Price, however, could advocate for execution on other grounds....

The Maricopa County Attorney's Office responded to the decision with a statement.  "With this ruling, the court recognizes that the Governor’s actions have constitutional implications, and the Governor has a duty to follow the law. We are assessing next steps to ensure the law is upheld and victims receive justice," the statement said.

Prior recent related posts:

• Different approaches to death penalty administration from different governors 
• New Arizona Gov pledging not to allow new scheduled execution to go forward
• Maricopa County prosecutor joins victims' group in challenging new Arizona Gov's pledge not to go forward with scheduled execution

New OIG report provides "Capstone Review of the Federal Bureau of Prisons' Response to the Coronavirus Disease"

A helpful reader made such I did not miss a new big document released this week by US Department of Justice's Office of the Inspector General. Specifically, this 100+-page report is a review of how the federal Bureau of Prisons (BOP) did during the COVID pandemic, and here are excerpts from the report's executive summary: 

Since April 2020, the U.S. Department of Justice (Department, DOJ) Office of the Inspector General (OIG) has conducted substantial oversight of the BOP’s response to the COVID-19 pandemic. The resulting body of work, which the OIG previously publicly released, includes remote inspections of 16 facilities housing BOP inmates completed during the early months of the pandemic, multiple surveys of BOP staff conducted at different times, and a collection of interactive data dashboards containing up-to-date information about COVID-19 within BOP facilities.  The OIG is also completing analysis of its first survey of BOP inmates.

This capstone review summarizes our overall findings regarding the BOP’s response to the COVID-19 pandemic, the issues we identified through our pandemic oversight work, the topics that have emerged following that work, the challenges that the BOP will likely continue to face during and after the pandemic, and actions that the BOP should undertake to prepare for future potential healthcare emergencies.

We make 10 recommendations to assist the BOP in managing challenges during and after the COVID-19 pandemic and in mitigating the effects of future public health emergencies...

The BOP Should Improve and Retain Effective Practices for Protecting Staff and Inmate Health and Safety During Public Health Emergencies...

The BOP Should Provide Clear Guidance on the Use of Healthcare Protective Equipment and Compliance with Healthcare Safety Guidance...

The BOP Should Respond to Ongoing Pandemic Challenges and Prepare for Future Public Health Emergencies

The BOP Should Improve Its Communication of Essential Information to Stakeholders...

The BOP Should Take Appropriate Steps to Address Staffing Shortages and Staff Morale...

Convicted of felony murder as teen for police killing during burglary, LaKeith Smith gets sentence reduced to "only" 30 years in Alabama

A felony murder case from Alabama received some national media attention as a resentencing proceeding approached this week.  That resentencing and its context are covered in this AP article headlined "Man sentenced to 30 years after police officer shot friend." Here are some of the details:

LaKeith Smith was 15 when a police officer shot and killed his friend when the teens were caught burglarizing homes in Alabama, but it is Smith who will spend decades in prison for his friend’s death.  A judge on Tuesday sentenced Smith, now 24, to 30 years in prison — a reduction from the more than 50 years he originally received, but a blow to his family and advocates who argued he should not spend decades in prison for a killing he did not commit.

The new sentencing hearing was held after a judge ruled Smith’s original lawyer failed to present possible mitigating evidence about his home life and mental health. Circuit Judge Sibley Reynolds handed down the new sentence after a lengthy court hearing.  Sibley gave Smith the same punishment he previously handed down — 30 years for the felony murder charge and 25 years for burglary and theft — but this time allowed the sentences to run concurrently, instead of stacked on top of one another.

“What he received today was not justice. It was clearly an over-sentence,” defense attorney Leroy Maxwell said after court. He said they will pursue an appeal. Maxwell said the case, which has garnered national attention because of Smith’s age and the sentence he received, is the “poster child” for the misuse of felony murder laws that allow someone to be charged for a killing during commission of a felony even if the death was unintentional.

The fatal shooting happened on Feb. 23, 2015, when Millbrook police officers responded to a call of a burglary in progress. A Millbrook police officer shot and killed 16-year-old A’Donte Washington when officers surprised the teens, local news outlets reported. A grand jury cleared the officer in the shooting. The surviving four teens were charged with felony murder. Three took a plea deal, and Smith went to trial.

The Elmore County courtroom, which sits across the highway from a state prison, erupted in angry shouts after the judge handed down the sentence, attorneys and others said. “He’s not a murderer. He doesn’t deserve 55 or 30 years,” Smith’s mother, Brontina Smith, said after court.

Maxwell argued LaKeith Smith was the least culpable of the teens because he was the youngest and there was no evidence he fired a gun. The judge heard testimony about Smith’s difficult home life, as well as a request from Washington’s father to let Smith go free. “They were kids, just kids. I don’t condone them going to somebody’s house and whatever. Give them time for that. But the murder of my child? No,” Andre Washington said after court.

District Attorney CJ Robinson, who was the prosecutor in the case before being elected as district attorney, said the sentence is within the allowed guidelines. “There are no winners here. Never have been (in) this case,” Robinson said via text after court. He supported the new sentencing hearing for Smith, agreeing that Smith’s original trial lawyer did an inadequate job at sentencing....

The case has put a spotlight on the state’s felony murder law, a legal doctrine that holds someone liable for murder if they participate in a felony, such as a robbery, that results in someone’s death. Most states have felony murder laws, but rules vary on their use.  According to a 2022 report by the Sentencing Project, a group advocating against mass incarceration, 14 states allow people engaged in a felony to be convicted of felony murder for a killing committed by a third party if it can be characterized as a foreseeable result of their action.

Additional national media coverage of this case include the following:

From The Marshall Project, "New Scrutiny on Murder Charges Against People Who Don’t Actually Kill: The U.S. is the only country that still uses the 'felony murder' legal doctrine."

From Mother Jones, "Police Killed His Friend and Blamed Him. He Got 65 Years in Prison. He Was 15.: A cop took an Alabama teen’s life, but LaKeith Smith took the charge. His big mistake: wanting a trial."

GAO releases big report concluding "Bureau of Prisons Should Improve Efforts to Implement its Risk and Needs Assessment System"

The US Government Accountability Office (GAO) has released this big new Report to Congressional Committees fully titled "Federal Prisons: Bureau of Prisons Should Improve Efforts to Implement its Risk and Needs Assessment System."  The full report runs over 100 pages, but it starts with "Highlights" that include this text:

Why GAO Did This Study

Approximately 45 percent of people released from a federal prison are rearrested or return within 3 years of their release.  The First Step Act included certain requirements for DOJ and BOP aimed to reduce recidivism, including requiring the development of a system to assess the recidivism risk and needs of incarcerated people.  It also required BOP to provide incarcerated people with programs and activities to address their needs and if eligible, earn time credits.

The First Step Act required GAO to assess the DOJ and BOP’s implementation of certain requirements.  This report addresses the extent to which DOJ and BOP implemented certain First Step Act requirements related to the (1) risk and needs assessment system, (2) identification and evaluation of programs and activities, and (3) application of time credits.

GAO reviewed legislation and DOJ and BOP documents; analyzed 2022 BOP data; and interviewed DOJ and BOP headquarters officials and BOP’s employee union.  GAO also conducted non-generalizable interviews with officials from four BOP regional offices facilities, selected to ensure a mix of different facility characteristics.

What GAO Found

Since the enactment of the First Step Act of 2018, the Department of Justice (DOJ) developed a risk assessment tool to measure an incarcerated person’s risk of recidivism.  In addition, the Bureau of Prisons (BOP) modified its existing needs assessment system to identify incarcerated people’s needs, that if addressed may reduce their recidivism risk. However, BOP does not have readily-available, complete, and accurate data to determine if assessments were conducted within required First Step Act and internal timeframes. As of October 2022, BOP plans to implement monitoring efforts to assess First Step Act requirements, but has not determined if these efforts will measure whether assessments are completed on time.  Without such data and monitoring, BOP is not in a position to determine if staff complete assessments on time, which are necessary for earning First Step Act time credits.  These time credits may allow incarcerated people to reduce the amount of time they spend in a BOP facility.

BOP created a plan to evaluate its evidence-based programs, as required by the First Step Act.  However, the plan did not include quantifiable goals that align with certain First Step Act requirements, or have clear milestone dates.  By including such elements in its plan, BOP will be better positioned to ensure its evaluations are conducted in a timely manner, and align with the First Step Act.  BOP has some data on who participates in its programs and activities, but does not have a mechanism to monitor if it offers a sufficient amount. Without such a mechanism, BOP cannot ensure it is meeting the incarcerated population’s needs.  Further, while BOP offers unstructured productive activities for which incarcerated people may earn time credits, BOP has not documented a complete list or monitored them.  Without doing so, BOP cannot ensure it provides transparent information.

BOP’s procedure for applying time credits has evolved over time.  Initially, BOP did not have data necessary to track time credits and developed an interim approach in January 2022.  Subsequently, BOP implemented an automated-calculation application for time credits that took into account factors the interim procedure did not.  As a result, some incarcerated people may have had their time credits reduced.  In November 2022, BOP issued its First Step Act Time Credits program statement, with new procedures.

What GAO Recommends

GAO is making eight recommendations for BOP to improve its implementation of the First Step Act, including collecting data, ensuring its evaluation plan has goals and milestones, having monitoring mechanisms, and tracking unstructured productive activities. BOP concurred with six recommendations, but did not concur with two.  GAO continues to believe these are valid.

"After McCleskey"

The title of this post is the title of this recent paper authored by Robert Tsai recently posted to SSRN. Here is its abstract:

In the 1987 decision, McCleskey v. Kemp, the Supreme Court rejected a black death row inmate’s argument that significant racial disparities in the administration of Georgia’s capital punishment laws violated the Fourteenth Amendment’s Equal Protection Clause.  In brushing aside the most sophisticated empirical study of a state’s capital practices to date, that ruling seemingly slammed the door on structural inequality claims against the criminal justice system.  Most accounts of the case end after noting the ruling’s incompatibility with more robust theories of equality and meditating on the deep sense of demoralization felt by social justice advocates.  One might be forgiven for assuming that defense lawyers abandoned structural inequality claims and the use of quantitative evidence in capital cases altogether.

But that would be wrong and incomplete.  For the first time, this Article recounts an unusual chapter of the fallout from the McCleskey litigation, focusing on the litigation and social activism in the wake of that decision.  It draws on interviews with anti-death penalty lawyers working for or allied with the Southern Center for Human Rights in Georgia, including Stephen Bright, Ruth Friedman, Bryan Stevenson, and Clive Stafford Smith.  It is also based on archival research into their case files.  Drawing from these resources, this Article shows how a subset of cause lawyers in the late 1980’s and early 90’s had a remarkable reaction to that demoralizing ruling: they engaged in a distinctive form of “rebellious localism.”  Instead of forsaking structural equality claims, they doubled down on them.  Rather than make peace with what they believed to be an unjust ruling, they sought to subvert it.  They also scrambled to formulate reliable quantitative evidence of intentional discrimination.  Instead of accepting existing racial disparities in the criminal justice system, they went after prosecutors and state court judges to expose how racial minorities and poor people wound up on death row more often than their white, wealthier counterparts.

Understanding this untold episode of legal history teaches us about the limits of judicial control over constitutional lawmaking, the unanticipated consequences of trying to insulate the legal order from accountability, and the possibilities for keeping clients alive and earning pro-equality victories when political conditions are inhospitable.  For those who pay attention, there are lessons that might humble the most ideologically committed judges and inspire reformers who confront challenging legal circumstances.

With DOJ asking, will SCOTUS quickly take up a post-Bruen case on gun possession by thoe subject to DV orders?

The question in the title of this post is prompted by the interesting news that the feds have now filed a cert petition seeking review of the Fifth Circuit panel ruling in US v. Rahimi (first discussed here). The Rahimi opinion declared unconstitutional 18 USC § 922(g)(8)'s prohibition on gun possession by those subject to certain domestic-violence protective orders.

Notably, the government could have sought en banc review, but decided to seek cert. And within the petition, the government explains that, due to "the significant disruptive consequences of the Fifth Circuit’s decision, the government is filing this petition for a writ of certiorari on a highly expedited schedule — a little more than two weeks after the issuance of the Fifth Circuit’s final amended opinion — in order to allow the Court to consider the petition before it recesses for the summer."  This Hill article provides some details:

The government argued in the petition that the Fifth Circuit “overlooked the strong historical evidence supporting the general principle that the government may disarm dangerous individuals,” instead dismissing each historical example on the grounds that it differed from the law “in some way.”

“Although courts interpreting the Second Amendment must consider text, history, and tradition, they should not focus on whether the law at issue has ‘a historical twin,’” the DOJ said. “To the contrary, this Court emphasized that ‘even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.’”

The Justice Department's full cert petition is available at this link.  It should be quite interesting to see if SCOTUS decides to take up the case on an expedited basis even before there is a direct circuit split.  Notably, as discussed in this prior post, the Supreme Court's landmark Bruen decision has already created considerable legal uncertainty for a variety of federal gun control laws.  As suggested before, because numerous lower-court rulings are striking down numerous federal criminal laws, I suspect the Justices will get back to these Second Amendment matters pretty soon.   But "pretty soon" in Supreme Court timelines does not really mean "soon," so I would be eager to hear reader thoughts about when Rahimi or perhaps other cases may end up on the SCOTUS docket.

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order
• After recent wave of notable rulings, a wave of new Second Amendment commentary 
• How long until the Supreme Court takes up another Second Amendment case after Bruen? 

Idaho about to become latest state to authorize execution by firing squad

As reported in this AP piece, "Idaho is poised to allow firing squads to execute condemned inmates when the state can't get lethal-injection drugs, under a bill the Legislature passed Monday with a veto-proof majority."  Here is more:

Firing squads will be used only if the state cannot obtain the drugs needed for lethal injections — and one death row inmate has already had his scheduled execution postponed multiple times because of drug scarcity.

The move by Idaho lawmakers is in line with those by other states that in recent years have scrambled to revive older methods of execution because of difficulties obtaining drugs required for longstanding lethal injection programs. Pharmaceutical companies increasingly have barred executioners from using their drugs, saying they were meant to save lives, not take them.  Idaho Republican Gov. Brad Little has voiced his support for the death penalty but generally does not comment on legislation before he signs or vetoes it.

Only Mississippi, Utah, Oklahoma and South Carolina currently have laws allowing firing squads if other execution methods are unavailable, according to the Death Penalty Information Center.  South Carolina’s law is on hold pending the outcome of a legal challenge.

Some states began refurbishing electric chairs as standbys for when lethal drugs are unavailable. Others have considered — and at times, used — largely untested execution methods.  In 2018, Nevada executed Carey Dean Moore with a never-before-tried drug combination that included the powerful synthetic opioid fentanyl. Alabama has built a system for executing people using nitrogen gas to induce hypoxia, but it has not yet been used.

During a historic round of 13 executions in the final months of Donald Trump’s presidency, the federal government opted for the sedative pentobarbital as a replacement for lethal drugs used in the 2000s. It issued a protocol allowing firing squads for federal executions if necessary, but that method was not used.  Some lawyers for federal inmates who were eventually put to death argued in court that firing squads actually would be quicker and cause less pain than pentobarbital, which they said causes a sensation akin to drowning.

However, in a 2019 filing, U.S. lawyers cited an expert as saying someone shot by firing squad can remain conscious for 10 seconds and that it would be “severely painful, especially related to shattering of bone and damage to the spinal cord.”...

Idaho Sen. Doug Ricks, a Republican who co-sponsored that state's firing squad bill, told his fellow senators Monday that the state's difficulty in finding lethal injection drugs could continue “indefinitely” and that he believes death by firing squad is “humane.”...

But Sen. Dan Foreman, also a Republican, said firing-squad executions would traumatize the people who who carry them out, the people who witness them and the people who clean up afterward. “I've seen the aftermath of shootings, and it's psychologically damaging to anybody who witnesses it,” Foreman said.  “The use of the firing squad is, in my opinion, beneath the dignity of the state of Idaho.”

The bill originated with Republican Rep. Bruce Skaug, prompted in part by the state's inability to execute Gerald Pizzuto Jr. late last year.  Pizzuto, who now has terminal cancer and other debilitating illnesses, has spent more than three decades on death row for his role in the 1985 slayings of two gold prospectors.

The Idaho Department of Correction estimates it will cost around $750,000 to build or retrofit a death chamber for firing squad executions.  Agency Director Jeff Tewalt last year told lawmakers there would likely be as many legal challenges to planned firing squad executions as there are to lethal injections.  At the time, he said he would be reluctant to ask his staffers to participate in a firing squad.

"The 'Cruel and Unusual' Legacy of the Star Chamber"

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

Supreme Court justices have read the “cruel and unusual punishments” clause as prohibiting torturous methods of punishment, prohibiting grossly disproportionate punishments, and/or prohibiting arbitrary discretion over the infliction of the death penalty.

All three accounts face familiar and formidable historical challenges.  There is general agreement that the founders took the clause from Article 10 of the English Bill of Rights, and that Article 10 repudiated the horrific sentence passed on Titus Oates by the infamous Judge Jeffreys in 1685.  Each of the major interpretations fails to account for important pieces of the Oates puzzle.

The methods of punishment inflicted on Oates were two days of horrific flogging, recurring stands in the pillory, and life imprisonment.  These methods were not capital, were not unusual in 1685, and were all included in the Crimes Act passed by the First Congress.  Oates’s sentence was not, by contemporary standards, disproportionate. His perjuries caused the executions of numerous innocents, quite possibly by torture.  By the standards of the times, he deserved hanging.

The Eighth Amendment, however, responded to anti-federalist fears that Congress might adopt torturous methods of capital punishment.  Prevailing theories fail to account for the disconnect between what the English provision did and what the American provision meant to do.

This Article argues that prevailing accounts are breathtakingly incomplete.  The full story begins not with the flogging of Titus Oates in 1685, but with the abolition of the Star Chamber in 1641.  Sentencing Oates, Jeffreys claimed for King's Bench all the Star Chamber's lawless power to determine punishments less than capital.  The English Article 10 repudiated this attempt to resurrect the Star Chamber.  Then Congress, responding to anti-federalist fears about Congress adopting European-style executions by torture, freighted the "cruel and unusual" language with two additional meanings.  The clause now applied to capital, as well as noncapital, penalties.  It now also restricted legislative as well as judicial discretion.  Synthesizing the English original and the later concerns of the American founders, the Eighth Amendment forbids lawless discretion in both capital and noncapital cases, and torturous methods of punishment.  Proportionality was left to the legislature, subject to the powerful check provided by a constitutional requirement of even-handed enforcement.

At a time when the Court is reconsidering longstanding precedents from originalist premises, this account is not only a major advance in the academic literature.  It may also be, practically speaking, a matter of life and death.

Rounding up some public defender commentary on Gideon's 60th anniversary

I saw a lot of interesting headlines in recent days in conjunction with the 60th anniversary of the Supreme Court's ruling in Gideon v. Wainwright.  Here is a sampling from various sources:

From Fox News, "Supreme Court's 'Gideon' ruling at 60 and the right to counsel: In their own words"

From the Los Angeles Times, "Criminal defendants’ right to counsel still shortchanged in much of California"

From NPR, "You have the right to a lawyer, but public defenders note a lack of resources, respect"

Oregon Public Broadcasting, "A constitutional crisis in Oregon’s criminal justice system continues, 60 years after landmark US Supreme Court decision"

The Sixth Amendment Center, "The State of the Nation on Gideon’s 60th Anniversary"

From Teen Vogue, "Gideon v. Wainwright Was a Landmark Decision, But Women Invented the Idea of the Public Defender"

From the US Courts, "60 Years Later, Gideon’s Legacy Lives On"

From the US Department of Justice, "Justice Department Commemorates the 60th Anniversary of Gideon v. Wainwright"

US Sentencing Commission posts over 1600 pages of public comment on proposed amendments

Perhaps unsurprisingly in light of a whole lot of notable proposed amendments to the US Sentencing Guidelines, the US Sentencing Commission received a whole lot of public comment in response to its "Notice and request for public comment" on these amendments.  Helpfully, for folks interested in seeing some of the highlights, the USSC has made big sample available here with lots of helpful links to each of the issues covered and with this explanation:

The Commission reviews and catalogs all public comment submissions for future reference and official recordkeeping purposes.  A representative sample of public comment is carefully selected, redacted, and posted online to provide the public with the kind of information considered by the Commissioners during their deliberations." 

Especially because I am distracted by a few different and distinct obsessions this weekend, I am certain I will not get a chance to review much of the commentary anytime soon.  But I welcome folks using the comments to flag any especially interesting comments (or any predictions they may have about what the final amendment will look like). 

A few recent related posts:

• US Sentencing Commissions publishes proposed guideline amendments and issues for comment 
• US Sentencing Commission to begin series of public hearings on its proposed guideline amendments
• US Sentencing Commission soon to begin second set of public hearings on proposed guideline amendments

Notable Seventh Circuit discussion of how a combination of factors can amount to "extraordinary and compelling reasons"

A helpful colleague made sure I did not miss a short ruling authored by Judge Frank Easterbrook for the Seventh Circuit concerning factors in support of motions for compassionate release. The ruling in US v. Vaughn, No. 22-2427 (7th Cir. March 15, 2023) (available here), is worth reading in full, and this is part of the discussion that seems especially notable:

Vaughn maintains that his arguments collectively identify “extraordinary and compelling reasons” even if none of them does so independently. At least two circuits have held that it is permissible to consider reasons jointly as well as severally. United States v. Ruvalcaba, 26 F.4th 14, 28 (1st Cir. 2022); United States v. McGee, 992 F.3d 1035, 1048 (10th Cir. 2021). But one has gone the other way, remarking: “[W]hy would combining unrelated factors, each individually insufficient to justify a sentence reduction, amount to more than the sum of their individual parts?” United States v. McKinnie, 24 F.4th 583, 588 (6th Cir. 2022). See also United States v. McCall, 56 F.4th 1048, 1066 (6th Cir. 2022).

The Sixth Circuit’s rhetorical question has some intuitive appeal. Often 0 + 0 = 0. But not always. One persistent error in legal analysis is to ask whether a piece of evidence “by itself” passes some threshold — to put evidence in compartments and ask whether each compartment suffices. But when one court of appeals asked whether Fact A showed probable cause for an arrest, then whether Fact B did so, whether Fact C did so, and so forth, the Supreme Court reversed in a sharp opinion reminding all judges that evidence should not be compartmentalized.

[T]he [court of appeals] viewed each fact “in isolation, rather than as a factor in the totality of the circumstances.”  This was “mistaken in light of our precedents.”  The “totality of the circumstances” requires courts to consider “the whole picture.”  Our precedents recognize that the whole is often greater than the sum of its parts — especially when the parts are viewed in isolation. Instead of considering the facts as a whole, the [court of appeals] took them one by one. … The totality-of-the-circumstances test “precludes this sort of divide-and-conquer analysis.”

District of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018) (internal citations omitted). Similarly, we have held that in employment-discrimination cases a district court must consider the evidence as a whole, rather than sorting facts into boxes and asking whether each suffices.... Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765–66 (7th Cir. 2016).

If we conceive of “extraordinary and compelling reasons” as those differentiating one prisoner’s situation from 99% of other prisoners, it is easy to see how Circumstance X could be true of only 10% of prisoners, Circumstance Y of 10%, and Circumstance Z of 10% — each insufficient to meet the threshold, but if they are independent then collectively enough to place the applicant among only 0.1% of all federal prisoners.  We do not say here that 99% is the threshold for “extraordinary and compelling reasons”; in the absence of guidance from the Sentencing Commission, identifying the threshold is committed to the discretion of district judges, with deferential appellate review.  See United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020).  Our point, rather, is that no matter how the threshold is defined, a combination of factors may move any given prisoner past it, even if one factor alone does not.  This leads us to disagree with the Sixth Circuit’s approach.

This does not help Vaughn in the end, however, because the discretion to evaluate multiple circumstances resides principally in the district courts.

Columnist George Will argues high plea rates can be explained by, "to a significant extent, coercion"

In this new Washington Post piece, headlined "How government’s excessive reliance on plea deals can undermine justice," George Will highlights the ABA's recent Plea Bargain Task Force Report (discussed here) to lament how prevalent pleas have become in our criminal justice systems.  Here are some excerpts:

Herewith a two-question quiz: What is the only right affirmed both in the Constitution of 1787 and in the Bill of Rights? And what governmental practice produces the most pervasive and glaring civil rights deprivations?

The answer to the first question is: the right to trial by jury. (Article III, Section 2: “The trial of all crimes, except in cases of impeachment, shall be by jury”; Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”) The answer to the second is: plea bargaining as currently practiced, which often effectively nullifies this right.

A just-published report by an American Bar Association task force says plea bargaining has not only become the primary way to resolve criminal cases, “some jurisdictions have not had a criminal trial in many years.” Think about that: Years can pass without a defendant exercising the constitutional right to an adversarial process conducted in public in front of a neutral judge and a jury of the defendant’s peers....

Last year, 98.3 percent of federal criminal convictions, and about 95 percent in the states, resulted from bargained guilty pleas. Why? To a significant extent, coercion.

This often begins with detention in frightening conditions: To be arrested is to be suddenly plunged into control by a government speaking an often arcane legal language.  Then there is “stacking” — prosecutors piling on charges which, in a context of mandatory minimum sentences, force defendants to choose between risking potentially life-ruining trials and pleading guilty to lesser charges, even if innocent....

The task force’s report stresses that plea bargaining has legitimate uses. It incentivizes defendants to accept responsibility for criminal conduct, and offers finality to their victims and the community.  Furthermore, prosecutorial resources are scarce, and plea bargaining is a mechanism for efficiently resolving cases.  No value in life, however, invariably supersedes all others, and the pursuit of efficiency has too often become “the driving force of criminal adjudication,” supplanting transparency and justice....

The Cato Institute’s Clark Neily and others suggest that plea bargaining on today’s “industrial scale” could be countered by a “trial lottery”: A small percentage of cases in which plea agreements have been reached should be randomly sent to trials.  How often would the government be unable to secure a conviction after it has managed to induce a pre-trial guilty plea?  Let’s find out.

I wish Will had mentioned the problems of acquitted conduct sentencing enhances in his discussion of the various forces that contribute to the very high rate of guilty pleas.  I raise the issue in part because as long as significant sentencing increases based on acquitted conduct remains permissible, prosecutors will always have a great incentive to bring as many charges as possible even if some plea cases were to "be randomly sent to trials." 

Prior related post:

• ABA Criminal Justice Section releases "2023 Plea Bargain Task Force Report" 

"The Unconstitutional Conditions Vacuum in Criminal Procedure"

The title of this post is the title of this notable new article now available via SSRN authored by Kay Levine, Jonathan Remy Nash and Robert A. Schapiro. Here is its abstract:

For more than a century the United States Supreme Court has applied the unconstitutional conditions doctrine across a variety of settings, scrutinizing government efforts to condition the tradeoff of rights for benefits in the speech, funding, and takings contexts, among others.  The Court has declined, however, to invoke the doctrine in the area of criminal procedure, where people accused of crime are often asked to — and typically do — surrender their constitutional rights under the Fourth, Fifth, and Sixth Amendments in return for some benefit.  Despite the Court’s insistence that the unconstitutional conditions doctrine applies broadly across the Bill of Rights, its jurisprudence demonstrates that the doctrine functions as a selective shield that offers no support for certain rightsholders.

We argue that the Court’s approach undermines vital rights, with especially harmful consequences for people who most need judicial protection.  Since individuals accused of crime are often extremely vulnerable to coercive government measures, the important safeguards offered by the unconstitutional conditions doctrine should be at their apex in the criminal procedure setting.  Indeed, lower federal courts and some state courts have applied the doctrine to criminal procedure issues, demonstrating the doctrine’s utility in this domain.  We conclude that the Supreme Court’s aversion to using the unconstitutional conditions doctrine in its criminal procedure docket rests not on a principled doctrinal distinction, but on a failure to take seriously the constitutional predicaments facing those charged with crimes.  In accordance with its obligation to render equal justice under law, the Court must apply the unconstitutional conditions doctrine in this most critical area.

With pandemic legally winding down, should Congress build in CARES Act success to greatly expand BOP home confinement authority?

The question in the title of this post is prompted by this notable new Forbes piece by Walter Pavlo headlined "Bureau Of Prisons Sees End Of Cares Act Home Confinement, Some Prisoners Will Be Left Behind."  I recommend the full piece, and here are excerpts (with links from the original):

The CARES Act provided funding for the United States to tackle the COVID-19 pandemic, but it provided the Federal Bureua of Prisons (BOP) a means to both reduce crowding in federal prisons and place some minimum security prisoners with underlying health conditions on home confinement to complete their sentences. Over 12,000 prisoners have successfully been transferred to home confinement under the CARES Act and few have violated the conditions that returned them to prison. The Office of Legal Counsel determined that BOP’s preexisting authorities did not require that prisoners in extended home confinement be returned en masse to correctional facilities when the emergency period ends. Now, the Biden Administration has called for the end of national emergency and public health emergency associated with the COVID-19 pandemic on May 11, 2023 and that will mean that some prisoners will not see the benefit of home confinement.

The Federal Register published a draft of the final rule to end CARES Act home confinement in June 2022.  Comments and the final rule itself are now at the White House and will soon be published. In the draft proposal, the Department of Justice indicated that the BOP would stop home confinement placements of prisoners 30 days after the emergency period ends, so mid-June 2023.

As the program sunsets, one would think the BOP is slowing transfer of some prisoners to home confinement under CARES Act, but not so. Randilee Giamusso, who works at the BOP’s Office of Public Affairs gave a statement that, “The Bureau of Prisons (BOP) has not made efforts to slow CARES Act home confinement placements as the end of the CARES Act approaches. We have issued no guidance regarding this matter.”  That is welcome news to prisoners who meet the eligibility requirements for CARES Act placement.

Many are also hoping that the DOJ extends the 30 days after the end of CARES Act to something that takes into consideration the success of the program and the conditions of prison.  Maureen Baird, retired BOP Warden, told me in an interview, “Prisons are communal settings where contagion is always a concern.  I think the BOP has gone to great measures to try to avoid that contagion and one of the most successful measures has been CARES Act home confinement.”...

The CARES Act demonstrated that a select group of prisoners could be identified and successfully placed in community settings for an extended portion of their sentence.  There are currently prisoners on CARES Act who still have over 5 years remaining on their prison term who are under strict terms of home confinement and subject to being returned to an institution in the event of failing to live up to those terms.

Though it makes sense to wind down the pandemic-driven authority to transfer certain persons from federal prison to home confinement, Congress and the US Sentencing Commission and the Justice Department should carefully study the the apparent success of this CARES Act program and consider ways to give BOP broader authority in non-pandemic times to move low-risk prisoners into home confinement. As highlighted by some posts below about the CARES Act, it seems that great use of home confinement might help reduce recidivism, save taxpayer money, facilitate greater reentry success for offenders and advance other important goals. Of course, home confinement needs to uses efficiently and effectively, though if we can do that during a pandemic, I would hope we can also do it at other times.

Some prior related posts:

• Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption
• Another encouraging report on those released under federal CARES Act
• Celebrating "real" recidivism is essentially nil, and even technical violations stunningly low, for CARES home confinement cohort
• More notable details on the remarkable success of those released from federal prison under CARES Act  
• Spotlighting again the decarceral success of the CARES Act 

New CRS piece reviews circuit split over justifications for revoking supervised release

A helpful reader alerted me to this notable new "Legal Sidebar" from the Congressional Research Service.  As suggested by the title, "Can Retribution Justify the Revocation of Supervised Release? Courts Disagree," the piece details a jurisprudential divide among the circuits for the justification for supervised release revocation.  Here is how the five-page report begins:

What are the legitimate reasons that a government may subject an individual to criminal punishment?  Western penological theory and American legal history generally identify four principled bases for criminal punishment: retribution, deterrence, incapacitation, and rehabilitation.  The Sentencing Reform Act (SRA) requires federal courts to impose an initial sentence that reflects these purposes of punishment.

The SRA also authorizes federal courts to sentence defendants to supervised release, encompassing a set of conditions that the defendant must comply with upon release from prison for a period of time (or, for some offenses, for up to life).  A defendant’s compliance with these conditions is “supervised” or monitored by a federal probation officer.  If a defendant violates a condition, the court may revoke the supervised release and send the defendant back to prison, among other things.  The SRA lists deterrence, incapacitation, and rehabilitation among the factors that a judge must consider in making these revocation determinations.  The SRA does not, however, expressly include retribution as one such factor.

The federal appeals courts disagree as to whether, and to what extent, retribution may justify the revocation of supervised release in light of this statutory omission.  On one side of the divide, the U.S. Courts of Appeals for the First, Second, Third, Sixth, and Seventh Circuits have held that federal courts may consider retribution in making revocation decisions.  On the other side, the Fourth, Fifth, and Ninth Circuits have concluded that courts either may not consider retribution in these decisions at all or may consider it only to a limited degree.

This Sidebar summarizes the four purposes of punishment, including retribution; offers an overview of supervised release; and summarizes the aforementioned split.  The Sidebar concludes with congressional considerations.

Brennan Center publishes "A Proposal to Reduce Unnecessary Incarceration: Introducing the Public Safety and Prison Reduction Act"

The folks at the Brennan Center for Justice have a new report available here authored by Hernandez D. Stroud, Lauren-Brooke Eisen, and Ram Subramanian titled "A Proposal to Reduce Unnecessary Incarceration: Introducing the Public Safety and Prison Reduction Act."  Here is part of the report's introduction:

According to a 2016 Brennan Center for Justice report, nearly 40 percent of the U.S. prison population is incarcerated without any compelling public safety justification. Incarceration degrades people’s humanity, disrupts their social networks, and causes lifelong social and financial disadvantage through restricted access to education, jobs, and housing.  It also devastates families and communities, disproportionately affecting society’s most marginalized segments.

Reforms have reduced the population behind bars from its 2009 peak, yet an astonishing level of incarceration persists: today over 1.2 million people are confined to federal and state prisons, and just over 636,000 more are locked up in local jails.  Few states have achieved significant reductions in their prison populations, and in some places these populations have begun to grow again.

For a half century, the federal government has harnessed its grant-making power to spur states to incarcerate more people and to impose longer sentences, making the United States the most punitive country in the world.  It can now use that same funding power to reverse course.  The idea of using federal funding to reduce incarceration is not new, but recent programs have had mixed results.  For example, between 2010 and 2017, the U.S. Department of Justice’s Justice Reinvestment Initiative (JRI) provided state and local governments with technical assistance and direct funding to reduce their prison populations.  But this funding did not always produce the intended outcome....

Yet since assuming office in 2021, the Biden administration, while retaining JRI’s focus on recidivism reduction, now specifically allows grant money to support efforts to reduce incarceration for new crimes or technical violations of community supervision.  And more recently, in August 2022, as part of his 2023 budget proposal to Congress, President Biden unveiled a grant program called Accelerating Justice System Reform, which would dedicate $15 billion over 10 years for jurisdictions to implement crime prevention and public health approaches to public safety.

Building on this momentum, the Brennan Center for Justice calls on Congress to enact a new, $1 billion federal funding program, called the Public Safety and Prison Reduction Act, to channel money to states with the goal of reducing unnecessary incarceration while promoting humane and fair criminal-justice policies that preserve public safety.  The proposal, based on a previous Brennan Center policy solution — the Reverse Mass Incarceration Act — was crafted in consultation with a variety of stakeholders, including formerly incarcerated individuals.

Maricopa County prosecutor joins victims' group in challenging new Arizona Gov's pledge not to go forward with scheduled execution

As reported in this local article, headlined "'No law allows it': Maricopa County prosecutor challenges Gov. Hobbs' refusal to proceed with execution," notable litigation is afoot over execute powers and execution plans in the Grand Canyon State.  Here are the interesting details (with links from the originals):

Gov. Katie Hobbs faces a court fight over whether she can block a scheduled execution. 

Maricopa County Attorney Rachel Mitchell joined a crime victims' rights group Monday in asking the Arizona Supreme Court to order Hobbs to carry out the execution of convicted murderer Aaron Gunches.  "No law allows the governor to unilaterally suspend executions," Mitchell's court brief said....

The amicus brief supports the Arizona Voice for Crime Victims' petition for special action by the high court, filed on behalf of Karen Price, sister of Gunches' murder victim, Ted Price. 

Two weeks ago, Hobbs said the state wouldn't proceed with executions until her office's review of death-penalty procedures was complete.  The day before, the state Supreme Court had granted an execution warrant for Gunches with a date of April 6.

The first-term Democratic governor issued an executive order in January establishing a death penalty review commission. She cited questions about the Department of Corrections execution protocols and lack of transparency.  Democratic Attorney General Kris Mayes immediately paused executions. 

In her brief, Mitchell noted the "current execution protocol is the product of extensive litigation and multiple settlements with death row inmates."

Prior recent related posts:

• Different approaches to death penalty administration from different governors 
• New Arizona Gov pledging not to allow new scheduled execution to go forward

"Panicked Legislation"

The title of this post is the title of a new article authored by Catherine Carpenter which I missed when first posted here on SSRN, but now can be found in final form in print here at the Notre Dame Journal of Legislation.  Here is its SSRN abstract:

We are in the throes of a moral panic. It is not the first time, nor will it likely be the last, but it is among the most enduring.  Dubbed the sex panic, it has bred widespread and ever-escalating legislation, impacted the lives of more than a million people and their families, and caused public hysteria and violence.  And unlike other moral panics in our history that dissipated over time, there are no signs that the sex panic is diminishing.  Indeed, this panic grows more virulent with each passing year.

Panicked legislation is both the symbol and the result of a moral panic.  The article is uniquely situated, linking both social science and legal theories to offer a dynamic account of the world of moral panics, the mythical narratives that support them, and the inaccurate risk management assessment that plagues them.  It is ultimately a cautionary tale of hastily-crafted and fear-driven legislation that is fueled by the public’s distorted fear of a targeted group of people.

With a public unable or unwilling to hear the evidence, and political actors invested in their electorate, this article urges judicial intervention through the Irrebuttable Presumption Doctrine to challenge statutory schemes that are based on false assumptions that masquerade as universal truths.

"The (Immediate) Future of Prosecution"

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

Even as others make cogent arguments for diminishing the work of prosecutors, work remains — cases that must be brought against a backdrop of existing economic inequality and structural racism and of an array of impoverished institutional alternatives.  The (immediate) future of prosecution requires thoughtful engagement with these tragic circumstances, but it also will inevitably involve the co-production of sentences that deter and incapacitate.  Across-the-board sentencing discounts based on such circumstances are no substitute for the thoughtful intermediation that only the courtroom working group — judges, prosecutors and defense counsel — can provide. The (immediate) future also requires prosecutors to do more to recognize the distinctive role they can play in combating illegitimate domination.

LWOP for NYC terrorist Sayfullo Saipov as jury unable to return unanimous death sentence verdict for his mass murder

As reported in this new New York Post piece, "West Side Highway terrorist Sayfullo Saipov will serve life in prison after a Manhattan federal court jury could not unanimously agree to sentence him to death for killing eight people and wounding several others in an ISIS-inspired rampage."  Here are more of the particulars of another high-profile case in which a jury did not all vote for a death sentence:

The jury’s failure to reach a unanimous verdict — necessary to impose the death penalty — on Monday ended a dramatic, months-long trial that saw surviving victims tearfully testify about the horror of his attack and the killer’s family members urge jurors to spare his life.

Saipov was convicted in January of fatally mowing down eight people along a West Side Highway bike path on Halloween 2017 in a rented Home Depot truck. During the penalty phase of the trial, prosecutors questioned a host of witnesses – including surviving victims and family members of those slain – to show jurors the horrific violence carried out by Saipov.

Assistant US Attorney Alexander Li told jurors during the guilt phase of the trial that Saipov smiled, gave a “proud confession” and requested an ISIS flag to hang in a hospital room where he was being treated after the attack....

The jury convicted Saipov on 28 counts — nine of which carried the possibility of the death penalty — hours after they began deliberations on Jan. 26.  The conviction triggered the penalty phase of the case — which functioned like another full trial, where prosecutors and defense attorneys questioned witnesses, presented evidence and delivered opening and closing arguments.

During the penalty phase, family members of those killed described in painstaking detail how they’ve been devastated by the loss of their loved ones. The emotional testimony was referenced in prosecutors’ dramatic closing argument on March 7 as they urged jurors to condemn Saipov.   “The defendant caused unbearable pain to these families. They are still suffering,” Assistant US Attorney Amanda Houle told jurors in her closing. 

“Has the government proven aggravating factors that show that the way that this defendant chose to commit murder, by terrorist attack and the unremorseful slaughter of innocent civilians. Does that make his crime worthy of a harsher penalty?” Houle asked jurors.   “The evidence shows overwhelmingly that it does,” she said.  Houle then described the testimony jurors had heard about how families of the slain victims had been upended by the terrorist attack....

Saipov’s defense attorneys had sought to humanize him by questioning his family members on the stand, most all of whom broke down in tears when they told the jury they still loved him — despite what he had done. The defense’s penatly-phase case reached a dramatic peak when his father, sobbing uncontrollably, told jurors he still loved his son “with all my heart” from the witness stand.

The testimony prompted Saipov’s uncle, who was seated in the gallery of the courtroom, to stand up and begin shouting in Uzbek. “Dirty ISIS bastards!” the man yelled in Uzbek before slamming his fist on a courtroom door and walking out of the room.

In an impassioned closing argument, Saipov attorney David Patton repeatedly told jurors they face a “unique, individualized, moral decision” in whether or not to sentence the terrorist to death. “That is an awesome responsibility and power, and we are asking you to decide for life, to decide that the appropriate moral decision here is life,” Patton said. “It is not necessary to kill Sayfullo Saipov, not for our safety or anyone else’s and not to do justice,” Patton said.

Prior related posts:

• Will NYC terror attack become the first big federal capital case for Trump's Department of Justice?
• "Trump labels US justice system 'laughing stock' "
• Is Prez Trump making a capital prosecution for NYC terror killer harder with his death penalty tweets
• Federal judge rejects Sayfullo Saipov's efforts to block capital prosecution based on Prez Trump's tweets
• Noting that the Biden Administration in a high-profile case "has decided to continue to seek the death penalty" 

New Mexico seemingly poised to be latest state to elimination juvenile LWOP (after new press report about lost juve LWOPers)

This local press piece, headlined "Proposal to end juvenile life sentences in New Mexico on its way to governor," reports on notable new legislative developments in Land of Enchantment.  Here are some details:

In the early-morning hours Monday, the state House signed off on legislation that would abolish the possibility of a life sentence without parole for someone who committed a serious crime before they turned 18.  It would ensure that juveniles sent to prison would get a parole hearing 15 to 25 years into their sentence, depending on the severity of the underlying conviction.  Release wouldn’t be guaranteed, just a parole hearing.

The proposal picked up more support this year among legislators — following the failure of a similar proposal last year — and is now on its way to the desk of Gov. Michelle Lujan Grisham.  “A lot of meaningful work has happened in people’s hearts this year,” Long said in an interview.

She was in the gallery as the House took up debate on the proposal about 11pm Sunday and adopted the measure at 2:15am Monday, the last approval necessary to send it to the governor.  The House passed the bill on an 37-25 vote.  “Children are works in progress,” said House Majority Leader Gail Chasey, D-Albuquerque, “and we need sentencing options that leave room for their potential to experience positive transformations.”

Republican lawmakers blasted the proposal. Some crimes, they said, are so heinous that a parole hearing shouldn’t even be possible.  Rep. Stefani Lord, R-Sandia Park, said the hearings will reopen trauma for families.  “I don’t see how this is good for grieving parents or our community,” she said....

In the Senate, six Republicans support the bill. But the House vote was along party lines, with Democrats in favor and Republicans opposed. A year ago, the proposal died in the House without reaching the floor for a vote by the full chamber.

This year’s proposal makes changes intended to address the opposition. It establishes a tiered schedule of parole hearings based on the severity of the crime, rather than calling for hearings at 15 years across the board. And this year lawmakers have encountered plenty of advocates in person, including parents speaking about their own children and young adults sharing stories of redemption....

About 75 people would be affected by the bill, according to the American Civil Liberties Union of New Mexico, making them eligible for parole earlier than they would otherwise....  If approved by the governor, New Mexico would become the 27th state to end juvenile life sentences without parole, according to the Sentencing Project, an advocacy group.

Interestingly, ProPublica has this notable recent piece about juvenile LWOPers in New Mexico headlined "New Mexico Has Lost Track of Juveniles Locked Up for Life. We Found Nearly Two Dozen."  Here are short excerpts from the lengthy piece:

Gov. Michelle Lujan Grisham’s office has indicated that she will likely sign the legislation, if it is passed, by early April; it would go into effect this summer. In the meantime, officials in her administration could not answer basic questions about the number of prisoners affected and were unclear about which office is responsible for maintaining that information.

Carmelina Hart, spokesperson for the corrections department, initially sent ProPublica the names of 13 people in New Mexico’s prison system who were sentenced to life as children, which she said was the extent of the cohort. But a disclaimer below the list read, “Due to inconsistencies and mistakes over decades of data entry, as well as ensuing attempts of varying success to fix previous inaccuracies over that time, it is virtually impossible to conclude that all of these data are entirely correct.”...

Hart emphasized that the agency does have records of every person serving in its facilities, and that if the bill becomes law, NMCD will take the appropriate steps to ensure that it is in compliance....

One subset of New Mexico’s juvenile lifers who seem to have been disproportionately forgotten are those serving their time in out-of-state prisons.  Jerry Torres and Juan Meraz, for example, are both in the custody of the New Mexico Corrections Department for crimes they committed as juveniles in the state, yet they are locked up in Arizona — in a for-profit prison operated by the company CoreCivic.

Highlighting notable new Inquest essays looking "Beyond Gideon"

I continue to struggle to find time to keep up with all the commentaries posted at Inquest.  As regular readers know from my prior postings, Inquest bills itself as "a decarceral brainstorm," and it keeps churning out a wide array of essays on a wide array of criminal justice topics.  For example, a few weeks ago, a new essay by Jared Mollenkof focused on a new local prosecutor: " A Prosecutor’s Decarceral Potential: A new Minneapolis-area county attorney won’t end mass incarceration. But she has the chance to cause less harm and promote healing."

Capturing my attention this morning is a new Inquest series titled "Beyond Gideon," which is described as a "collection of essays examining how — or whether — public defenders can meaningfully contribute to the end of mass incarceration."  Here is part of how the series is set up here:

In the struggle against the harms of the carceral state, Inquest recognizes the limits of the public defense system — and of other actors in the criminal legal system.  Yet we also recognize that public defenders, by being among the closest to the people and communities harmed by mass incarceration, have a valuable role in working toward a world without it.  By running for office, advocating for decarceral legislation, and getting the attention of the Supreme Court, public defenders can — and do — fight for change.

Beyond Gideon is our attempt to broaden this lens.  In this series, we address questions about the role of public defense in challenging mass incarceration, and the conversations required to move that work forward.

We open with a reading list of archival essays examining how public defenders fit in the current system.  Over the next two weeks, in recognition of the sixtieth anniversary of the Gideon ruling, we will add a five-part series of new essays from people invested in thinking through the role of public defenders in bringing about a decarceral future.

There are two new essays already now available on the Inquest site, and here are the titles and links:

By Premal Dharia, "Gideon Turns Sixty: The Court’s decision must not preempt questions about the role public defenders can play in ending mass incarceration."

By Alexis Hoag-Fordjour, "Choice of Counsel: People assigned a public defender are the only ones deprived of the right to choose their lawyer.  This often intersects disastrously with racial bias."

Spotlighting DOJ support for proposed guideline amendment suggesting downward departure for criminal history involving marijuana possession

The folks over at Marijuana Moment have this effective new piece, headlined "Justice Department Backs Proposed Marijuana Sentencing Guideline Reform To Treat Past Convictions More Leniently," that flags the support from DOJ for a not-insignificant small proposed amendment to the federal sentencing guidelines criminal history rules.  Here are excerpts (with links from the original):

The Justice Department is backing a proposal to update a federal commission’s sentencing guidelines suggesting that judges treat prior marijuana possession offenses more leniently, arguing that it aligns with the Biden administration’s “sentiment” toward cannabis policy.  Members of the federal U.S. Sentencing Commission (USSC) voted to propose the amendment in January. And at a public hearing on Wednesday, a federal prosecutor testified on behalf of DOJ in support of the cannabis item.

As it stands, federal judges are directed to take into account prior convictions, including state-level cannabis offenses, as aggravating factors when making sentencing decisions. But as more states have moved to legalize marijuana, advocates have pushed for updated guidelines to make it so a person’s marijuana record doesn’t add criminal history points that could lead to enhanced sentences in new cases.

USSC’s proposal doesn’t seek to remove marijuana convictions as a criminal history factor entirely, but it would revise commentary within the guidelines to “include sentences resulting from possession of marihuana offenses as an example of when a downward departure from the defendant’s criminal history may be warranted.”...

Jonathan Wroblewski, director of DOJ’s Office of Policy and Legislation, said in written testimony that the department “supports the proposed amendment” on revising the marijuana sentencing guidance....  Phillip Talbert, U.S. attorney for the Eastern District of California, reiterated that position in oral testimony before members of the commission during Wednesday’s public hearing.

“The department supports including convictions for the simple possession of marijuana, without an attempt to sell or distribute, as grounds for downward departure,” he said. “The commission’s proposal is consistent with the president’s views that no one should be in jail for the simple possession of marijuana and his pardon proclamation. It will also account for the many jurisdictions that have decriminalized personal use marijuana possession.”...

Not all witnesses at the commission’s Wednesday hearing supported the marijuana change, however.  The Probation Officers Advisory Group, which was established by the commission itself, said in written testimony that it “does not believe guidance is necessary for determining whether a downward departure is appropriate for defendants who receive criminal history points for simple marijuana possession offenses.”  The group pointed out that “the possession of marijuana has not been legalized federally and that state laws pertaining to marijuana vary greatly and are continually evolving, such that these measures may create greater sentencing disparities.”...

USSC separately released a report in January showing that hundreds of people received more serious federal prison sentences in the last fiscal year because of prior cannabis possession convictions in states that have since reformed their marijuana laws.  While federal marijuana possession cases have declined dramatically since 2014 as more state legalization laws have come online, the report highlighted the long-term consequences of cannabis convictions in terms of federal sentencing.

Some prior recent related posts:

• US Sentencing Commission publishes proposed guideline amendments and issues for comment 
• US Sentencing Commission provides "Public Data Briefing: Proposed 2023 Criminal History Amendment"
• US Sentencing Commission releases "Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System"

"The Poor Reform Prosecutor: So Far From the State Capital, So Close to the Suburbs"

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

Given the undeniable role that prosecutorial discretion has played in driving mass incarceration, it makes sense to turn to them to scale it back as well.  This has certainly been a central motivation of the progressive/reform prosecutor movement that started in the late 2000s.  And while this movement has had some notable successes, recent years have shed some important light on the limits it faces as well.  In this essay, I want to focus on how the county-ness of prosecutors hems in their power from two different directions.

On the one hand, as county officials, prosecutors — at least in most major urban areas — have a large number of constituents who live in the suburbs and regularly oppose reforms … of policies that by and large do not affect them. It’s telling that many, if not most, reform prosecutors have been elected in counties that either have no suburbs at all within their borders (Philadelphia, Baltimore, St. Louis) or where the suburbs are a small fraction of the overall population (Boston, Portland).  It’s clear across a wide range of cities that the core support for reform DAs comes from Black communities with high levels of violence, i.e., the communities that bear the brunt of DA decisionmaking.  The more suburban voters in a county, however, the more diluted those voices become.

On the other hand, as county officials, prosecutors operate at the mercy of state officials, who have a wide range of powers for clipping their wings: legislatures can give state AGs concurrent jurisdiction, for example, and in many places governors can remove elected DAs or take their cases away from them.  While states are shielded from (some) federal interventions by the 10th Amendment, county officials have no such protection, as reform DAs in GOP-controlled states are increasingly beginning to discover.

My argument here is not one for nihilism.  Even with these limits, the so-called “progressive prosecutor” movement can (and has!) accomplish quite a lot.  But these constraints are very much real constraints, and ones that defy any sort of easy (or perhaps just any) policy fix.  It is essential to map out what these limits look like, the constraints they impose, and what they mean for reform efforts going forward.

With Prez Biden's blessing, majority of Senate Dems vote to reject DC criminal code reforms

The state of federal politics on crime and punishment came to the fore this week as the US Senate voted last night on whether to reject a proposed new District of Columbia criminal code.  This New York Times piece, headlined "Senate Clears Bill to Block D.C. Crime Law, Sending It to Biden After Reversal."  Here are excerpts:

The Senate on Wednesday voted overwhelmingly to block a new District of Columbia criminal code that reduces mandatory minimum sentences for some violent offenses, with Democrats bowing to Republican pressure to take a hard line on crime in a move that underscored the rising political potency of the issue ahead of the 2024 elections.

The 81-to-14 vote, with one senator voting “present,” cleared the Republican-written measure to undo the District’s law, sending it to President Biden, who after initially opposing it abruptly changed course last week and said he would sign it.

It was a sudden turn of events for the District’s council and its overhaul of local sentencing laws. Just a few weeks ago, Mr. Biden weighed in against congressional action to block the measure, accusing Republicans of meddling in local affairs.

But the high-profile incidence of carjackings and homicides in the capital and growing nationwide evidence that voters were casting their ballots based on candidates’ response to violent crime spurred a rapid retreat.  Dozens of House Democrats joined Republicans in opposing the District’s criminal code, and a growing number of Senate Democrats signaled they were inclined to follow suit, prompting Mr. Biden’s turnabout.

On Wednesday, 31 Democrats and two independents joined Republicans in supporting a resolution of disapproval of the criminal code, sending it to the president for his signature. Senator Raphael Warnock, Democrat of Georgia, voted “present.”

Republicans, using the authority of Congress to review all District laws, forced the showdown in an effort to paint Democrats as weak on law enforcement. They said the outcome demonstrated that any trend toward leniency was at an end. “We need to make certain that we send a strong message that the American public have had it with crime in America,” said Senator Bill Hagerty of Tennessee, the chief Republican author of the resolution. “The crime spree that is happening in our major cities must come to an end.”

But if Democrats were hoping that their opposition to the new criminal code would stop Republican attacks on their party’s image on crime in next year’s elections, they were likely to be disappointed based on comments made by Senator Mitch McConnell, Republican of Kentucky and the minority leader.  “Nobody will confuse Washington Democrats’ last-minute reversal on this one resolution for a road-to-Damascus moment on the crime issue,” Mr. McConnell said. “The American people are a lot smarter than that.”...

Local officials lamented the interference and even tried to pull back the criminal code before it was rejected by the Senate.  But the process to block it had already been set in motion, and Congress ignored the attempt to short-circuit the outcome.

The rewrite of the criminal code, which was years in the making, had split local officials as well.  The law was vetoed by Mayor Muriel E. Bowser, who was overridden by the District council. Her opposition, however, opened the door to Democrats abandoning their usual support of the District and voting in favor of overturning the law.

The White House’s handling of the issue angered House Democrats, who felt they were hung out to dry by the president after he said early last month that he would oppose the resolution of disapproval.  As a result, when the matter came before the House in early February, most Democrats backed the District council and voted against the effort to rescind the sentencing package, believing they were siding with the president, who would veto it.

Instead, Mr. Biden arrived on Capitol Hill last week and told Senate Democrats in a private luncheon that he would sign the measure if it reached his desk, undercutting House Democrats and District officials.  He said the crime legislation had gone too far even though he supported autonomy for the District of Columbia.  White House officials noted that the president had never explicitly pledged to veto the measure, only that the administration opposed it.

Some Senate Democrats stood by the District and argued that its democratically elected officials should be free to write their own laws without being subjugated to Congress. Senator Cory Booker, a New Jersey Democrat who has been active on criminal justice issues, mounted a defense of the District’s law in a party luncheon on Tuesday, according to senators who attended....

But the president’s reversal, the mayor’s veto and rising public unease with violent crime drove most Democrats to rally behind blocking the law, including Senator Chuck Schumer of New York, the majority leader, as well as both senators from neighboring Virginia, Mark Warner and Tim Kaine.  Mr. Kaine is among the senators up for re-election next year.  Both Democrats from Maryland, the other adjoining state, Senators Benjamin L. Cardin and Chris Van Hollen, voted “no.”

I was not familiar enough with all of the particular of the proposed DC Code reform to have a detailed and nuanced view of its pros and cons.  But I am certain that very few member of Congress voted on this matter based on any nuanced particulars of the proposed DC Code reform.  This issue turned into a "tough" versus "soft" on crime vote (with a hint of DC independence), and the political winds — which Prez Biden feels and also impacts — blew this vote a particular way.  It will be interesting to see if and how this vote and these winds shape future policy and politics, not only with respect to the work of Congress but also as campaign 2024 picks up steam.

New Prison Policy Initiative briefing covers "Racial disparities in diversion: A research roundup"

I received word via email of this new Prison Policy Initiative briefing titled "Racial disparities in diversion: A research roundup."  Here is how it starts (with links from the original):

As the costs and impacts of mass incarceration continue to grow, along with increased public outrage on the issue, counties and municipalities are adopting a wide range of programs that divert people out of the criminal legal system before they can be convicted or incarcerated. Diversion programs exist to move people away from overburdened court dockets and overcrowded jails, while offering to connect them with treatment, and saving money in the process. This practice sounds like a win-win for communities — and it’s successful by many metrics — but as we explain in our 2021 report about diversion programs, their design and implementation greatly impact the outcomes for defendants. That report focuses on the stage of the criminal legal process at which diversion occurs, with the earliest diversions (i.e., pre-arrest) offering the most benefits.

This briefing builds on our previous work by examining how — like every other part of the criminal legal system — diversion programs are often structured in ways that perpetuate racial disparities. Here, we review key studies showing how people of color who are facing criminal legal system involvement are systematically denied or excluded from diversion opportunities. This inequity has a ripple effect, contributing to the troubling racial disparities we see elsewhere, in pretrial detention, sentencing, and post-release issues like homelessness and unemployment. We conclude that policymakers and practitioners involved in diversion programming must address the cost, eligibility requirements, and discretionary decision-making to offer these vital opportunities in a racially equitable way.

Please note that because existing research is largely centered around prosecutor-led diversion programs, this briefing and its recommendations are, too. Prosecutors hold immense power in their decisions to file or dismiss charges, release pretrial defendants, and recommend sentences; in this way prosecutors are arbiters of racial fairness in the criminal legal system, in part through diversion.

DOJ testimony to Sentencing Commission on acquitted conduct sentencing generates notable responses

A few weeks ago, the Justice Department testified to the US Sentencing Commission that is was generally against efforts to amend the guidelines to significantly curtail the consideration of acquitted conduct at federal sentencing (hearing here, written testimony here).  This week, that testimony has generated some notable responses. 

Specifically, this new Reuters commentary by Hassan Kanu, headlined "U.S. Justice Dept takes a hard line on sentencing reform," laments that DOJ's position on this issue "does not square with agency leadership and President Joe Biden’s forceful commitments to addressing racism in the justice system and reducing mass incarceration."  And, perhaps even more notable, the lawyers representing Daytona McClinton in one of the acquitted conduct cases pending before SCOTUS filed this short new supplemental brief with the Court. (Regular readers know that last year I filed an amicus brief on the acquitted conduct issue in support of petitioner Dayonta McClinton.)  Here are some snippets from the new supplemental brief:

In its brief in opposition, the government argued that “[t]his Court’s intervention” was not “necessary to address” the widespread problem of acquitted-conduct sentencing because “the Sentencing Commission could promulgate guidelines to preclude such reliance.” Br. in Opp. 15.  In January 2023, the Sentencing Commission introduced preliminary proposed amendments that would, if adopted, place modest limitations on federal courts’ consideration of acquitted conduct in sentencing....

In urging the Sentencing Commission to reject the proposed amendments, the government began its argument with a broad reading of United States v. Watts, 519 U.S. 148 (1997) (per curiam).  The government argued that the Commission’s proposal to “[c]urtail[] the consideration of acquitted conduct at sentencing would be a significant departure from long-standing sentencing practice” because this “Court has continued to affirm that there are no limitations on the information concerning a defendant’s background, character, and conduct that courts may consider in determining an appropriate sentence.” Gov’t Views at 12-13.

That expansive reading of Watts is deeply at odds with the far more limited understanding the government has presented to this Court....  The government also appears to have reversed its position on whether “the Sentencing Commission could promulgate guidelines to preclude such reliance.” Br. in Opp. 15. In oral testimony to the Commission in February, the government argued that “[t]he Commission’s proposal is unfortunately inconsistent with [18 U.S.C. § 3661],” a statute governing sentencing law....

Even as the government urges this Court that other mechanisms exist to address a controversial sentencing practice that a host of distinguished jurists have criticized, see Pet. 11-15; Br. of 17 Former Federal Judges as Amici Curiae 1, the government simultaneously invokes a disputed reading of the quarter-century-old per curiam opinion in Watts to defeat even the most modest efforts at reform.  And contrary to its assurances to this Court, it now contends that the Sentencing Commission lacks authority to promulgate amendments addressing the practice.

Absent further guidance from this Court, there is no reasonable prospect of ending acquitted-conduct sentencing, even at the federal level.  And absent this Court’s review, there is no prospect of the practice ending at the state level, which comprises “the vast majority of criminal cases in the U.S.”

The Sentencing Project launches a "Second Look Network"

Regular readers should know that I am a big fan of second-look sentencing mechanisms, so I am also now a fan of a new "network" that I learned about via email today.  Here is a portion of the email (with links from the original):

The Sentencing Project is excited to announce the launch of the Second Look Network! The Second Look Network is a coalition of attorneys and post-sentence advocates across the country working on behalf of incarcerated individuals seeking relief from lengthy or unfair sentences.

The Network will facilitate the exchange of ideas and information between its members, and provide various opportunities for collaboration on effective litigation and mitigation strategies, host training sessions, and provide connections to experts and local policy efforts.  The Network will also provide communications and media support to its members. With support from Arnold Ventures, we are proud to create such a space to fill this need for the litigation community. 

To help build and maintain this Network, The Sentencing Project has welcomed a Director and Program Manager to our team.

Becky Feldman, Second Look Network Director

Becky is a post-conviction defense attorney and came to The Sentencing Project with 17 years of litigation and reentry experience on behalf of incarcerated people serving life sentences in Maryland prisons. 

Leyda Pereyra, Program Manager

Leyda is a social justice, equity and human rights advocate. Previously, Leyda served as an operational strategist and consultant to various campaigns that centered on health equity, economic empowerment, research and public policy through culturally responsive social justice frameworks.

We welcome you to learn more about the Network here. We also invite you to review the membership criteria, and, if applicable, apply to join us as we build this community.

I have written a whole lot about a broad array of second-look ideas and related issues in a a number of article through the years.  Here is a sampling of some of my major second-look related writings:

• "Re-Balancing Fitness, Fairness, and Finality for Sentences"
• "Reflecting on Parole's Abolition in the Federal Sentencing System"
• "Encouraging (and Even Requiring) Prosecutors to be Second-Look Sentencers"
• "Leveraging Marijuana Reform to Enhance Expungement Practices"
• "Turning Hope-and-Change Talk Into Clemency Action for Non-Violent Drug Offenders"
• "Exploring the Theory, Policy and Practice of Fixing Broken Sentencing Guidelines"
• "The Enduring (and Again Timely) Wisdom of the Original MPC Sentencing Provisions"

"Recommended but Rarely Followed: Downward Departures of the Federal Sentencing Guidelines Among Child Pornography Offenders"

The title of this post is the title of this student comment authored by Madison Flores and recently posted to SSRN.  Here is its abstract:

In the last fifteen years, the online sexual exploitation and abuse of children has increased by 422% worldwide.  However, despite having a recommended federal sentencing guideline system, district judges routinely fail to impose sentences concerning child-pornography offenses within those guidelines, often believing they are too harsh.  In response to the growing epidemic of the lackluster application of the federal sentencing guidelines by judges, this Comment explores and analyzes the federal sentencing guidelines structure; examines the factors judges use when sentencing; reviews case studies from several circuits in the United States showcasing the egregious disparities; evaluates how pre-sentence reports affect guideline ranges; and analyzes sentencing trends across the federal circuits.

The current structure leads to sentencing disparities throughout the federal system for similarly situated defendants. Whether defendants will receive fifteen, ten, or five years rests solely on the moral standards of the judges they stand before.  This Comment strongly suggests that federal courts more closely follow the sentencing guidelines set forth by Congress to protect those most vulnerable: the children.

Five months after mass marijuana possession pardons, DOJ announces application form for certificates

Back in October 2022, as detailed here, Prez Biden granted a mass pardon to "all current United States citizens and lawful permanent residents who committed the offense of simple possession of marijuana in violation of the Controlled Substances Act, as currently codified at 21 U.S.C. 844 and as previously codified elsewhere in the United States Code, or in violation of D.C. Code 48–904.01(d)(1), on or before the date of this proclamation."  But, perhaps problematically for some, a mass pardon done not readily come with the certificate or other official documentation that individuals often received when receiving a more traditional, individualized grant of clemency. 

To address this issue, I had heard that the Pardon Attorney office in the US Justice Department was working on a process to issue pardon documentation.  And, this past Friday, this DOJ press release addressed this matter under the heading "Justice Department Announces Application Form for Marijuana Pardon Certificates."  Here are the particulars (with links from the original):

[T]he Justice Department is launching an application for eligible individuals to receive certificate of proof that they were pardoned under the Oct. 6, 2022, proclamation by President Biden.  On Oct. 6, 2022, the President announced a full, unconditional and categorical pardon for prior federal and D.C. offenses of simple possession of marijuana.  The President’s pardon lifts barriers to housing, employment and educational opportunities for thousands of people with those prior convictions. President Biden directed the Justice Department to develop a process for individuals to receive their certificate of pardon.

The online application will be available on the Office of the Pardon Attorney’s website: Application for Certificate of Pardon.  The web form allows eligible persons to submit documentation to the Office of the Pardon Attorney and receive a certificate indicating the person was pardoned on Oct. 6, 2022, for simple possession of marijuana.

The President’s pardon, effective Oct. 6, 2022, may assist pardoned persons by removing civil or legal disabilities — such as restrictions on the right to vote, to hold office or to sit on a jury — that are imposed because of the pardoned conviction.  The application released today may also be helpful as proof of pardon for those who seek to obtain licenses, bonding or employment.  As President Biden said at the time of the proclamation, his action intends to “help relieve the consequences arising from these convictions.”  

Those who were pardoned on Oct. 6, 2022, are eligible for a certificate of pardon.  Consistent with the proclamation, to be eligible for a certificate, an applicant must have been charged or convicted of simple possession of marijuana in either a federal court or D.C. Superior Court, and the applicant must have been lawfully within the United States at the time of the offense. Similarly, an individual must have been a U.S. citizen or lawful permanent resident on Oct. 6, 2022.

Those who were convicted of state marijuana offenses do not qualify for the pardon.

The department is committed to carefully and expeditiously reviewing the applications and issuing certificates to those pardoned under the proclamation. For more information regarding eligibility and answers to frequently asked questions, please visit Presidential Proclamation on Marijuana Possession.

Prior related posts from October 2022:

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

US Sentencing Commission soon to begin second set of public hearings on proposed guideline amendments

As first flagged in this post a couple of weeks ago, for sentencing fans looking for binge-worthy viewing and reading, the U.S. Sentencing Commission is still in the midst of its series of public hearings concerning  its many proposed amendments to the US Sentencing Guidelines.  The first hearings, which took place on February 23 and 24, can still be watched in full via the now-achieved live-streamed recording at this link.  That link also has all the witness written testimony for a full 25 witnesses for the first two days of public hearings where "the Commission [received] testimony on proposed amendments to the federal sentencing guidelines related to Compassionate Release, Sex Abuse of a Ward, and Acquitted Conduct."

The second set of hearing as this week, taking place on  March 7 and 8, and the link here where folks can live-stream all the action explains that the "purpose of the public hearing is for the Commission to receive testimony on proposed amendments related to Firearms, Fake Pills and the First Step Act-Drug Offenses, Circuit Conflicts, Career Offender, and Criminal History."  For these two days, it appears that there is again another 25 witnesses scheduled to testify on all these topics, and it appears that all their written testimony is already linked.   And again, the Commission will be engaging with a bunch of big policy questions along with lots and lots of (consequential) guideline technicalities. 

Among the many reasons the Commission has such a challenging job, on one issue they have to work with (or around) a recent Supreme Court cert grant.  As the Commission has rightly noted in proposed amendments, the FIRST STEP Act's new safety-valve provision for sentencing in drug cases ought to be incorporated into the the guidelines in some way.  But the circuit courts are deeply divided on the interpretation of that statutory provision, which produced, as noted here, the SCOTUS cert grant in was Pulsifer v. United States.  But that case will not be argued until this coming fall, and very likely will not result in a SCOTUS ruling until probably Spring 2024.  The Commission can amend the guideline before and/or after the SCOTUS ruling, but should it try to guess where SCOTUS will go or instead try to now develop a guideline that can function independent from the statutory debate.

A few recent related posts:

• US Sentencing Commissions publishes proposed guideline amendments and issues for comment 
• US Sentencing Commission to begin series of public hearings on its proposed guideline amendments
• SCOTUS grants certiorari to review reach of FIRST STEP Act's expansion of statutory safety valve 

New Arizona Gov pledging not to allow new scheduled execution to go forward

As reported in this AP article, headlined "Arizona Gov. Katie Hobbs refuses to proceed with execution set by court," the new Arizona Governor is continuing to promise to block executions in her state pending a review of state execution protocols. Here are the basics:

Arizona Gov. Katie Hobbs vowed Friday that her administration won’t carry out an execution even though the state Supreme Court scheduled it over the objections of the state’s new attorney general.  The Democratic governor’s promise not to execute Aaron Gunches on April 6 for his murder conviction in a 2002 killing came a day after the state Supreme Court said it must grant an execution warrant if certain appellate proceedings have concluded — and that those requirements were met in Gunches’ case.

Last week, Hobbs appointed retired U.S. Magistrate Judge David Duncan to examine the state’s procurement of lethal injection drugs and other death penalty protocols due to the state’s history of mismanaging executions.  “Under my administration, an execution will not occur until the people of Arizona can have confidence that the state is not violating the law in carrying out the gravest of penalties,” Hobbs said in a statement Friday.

Attorney General Kris Mayes’ office has said it won’t seek court orders to carry out executions while Hobbs’ review is underway.  Mayes, a Democrat who took office in January, tried to withdraw a request by her Republican predecessor, Mark Brnovich, for a warrant to Gunches.  The court declined to withdraw the request on Thursday.

The court said Hobbs’ review “does not constitute good cause for refraining from issuing the warrant.”  Mayes’ office declined to comment on Hobbs’ promise not to carry out the execution next month. Hobbs maintains that while the court authorized Gunches’ execution, its order doesn’t require the state to carry it out.

Dale Baich, a former federal public defender who teaches death penalty law at Arizona State University, said Hobbs can use her authority as the state’s chief executive when the state believes it cannot carry out an execution in a constitutionally acceptable manner.  “What the governor did is not unique,” said Baich, who applauded Hobbs’ move. “Governors in Alabama, Ohio and Tennessee recently used their authority to pause executions because they had serious questions about the protocols in their states.”...

Arizona, which has 110 prisoners on death row, carried out three executions last year after a nearly eight-year hiatus following criticism that a 2014 execution was botched and because of difficulties obtaining execution drugs.  Since resuming executions, the state has been criticized for taking too long to insert an IV for lethal injection into a prisoner’s body in early May and for denying the Arizona Republic newspaper’s request to witness the last three executions.

Gunches is scheduled to be executed on April 6 for the 2002 killing of Ted Price, his girlfriend’s ex-husband, in Maricopa County. Gunches, who isn’t a lawyer, represented himself in November when he asked the Supreme Court to issue his execution warrant so justice could be served and the victims could get closure.  In Brnovich’s last month in office, his office asked the court for a warrant to execute Gunches.  But Gunches withdrew his request in early January, and Mayes asked for the execution warrant submitted during Brnovich’s tenure to be withdrawn.

"To Hemp in a Hand-basket: The Meaning of 'Controlled Substance' Under the Career Offender Enhancement"

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

Sentencing enhancements can drastically impact prison sentences for people convicted of federal crimes.  The career offender enhancement is particularly harmful to a federal criminal defendant because it automatically raises their minimum offense level and criminal history score under the U.S. Sentencing Guidelines, which, although no longer mandatory, are almost always followed by judges in determining actual prison sentences.  Since 2016, the career offender enhancement has been applied to almost 8,000 criminal defendants who, at the time of their convictions, had accrued a total of two or more predicate felony convictions, for either a drug offense or a crime of violence enumerated in the Guidelines.

Yet an active circuit split over the definition of a “controlled substance” means that defendants with identical criminal histories could face drastically different guideline sentences.  Because the Supreme Court’s categorical approach in Taylor v. United States prohibits the use of “overbroad” predicate convictions for sentencing enhancement purposes, the definition of “controlled substance” is consequential -- a state statute criminalizing a broader set of conduct than applicable federal law cannot trigger the career offender enhancement.

Four circuits (the Fourth, Seventh, Eighth, and Tenth) have held that “controlled substances” are defined by applicable state law, sidestepping the categorical approach.  In those circuits, a prior conviction for marijuana that includes hemp -- now legal federally and in many states -- can serve as a predicate offense for the career offender enhancement. Four other circuits (the First, Second, Fifth, and Ninth) have held that “controlled substances” are defined by the Controlled Substances Act (CSA).  In these circuits, overbroad marijuana convictions cannot serve as predicate offenses under the categorical approach because the CSA currently legalizes hemp, while most state statutes before 2018 included hemp as a possible basis for conviction.  As a result, criminal defendants in these circuits are spared many years on their prison sentences by avoiding a career offender classification.

This Note argues that the Supreme Court should adopt the latter approach and hold that the CSA defines controlled substance offenses.  This recommendation is grounded in analysis of the career offender enhancement’s text, context, purpose, and history.

Former BOP director talks up need for second step to follow up FIRST STEP Act

Hugh Hurwitz, who served as Acting Director of the Federal Bureau of Prisons from May 2018 to August 2019, has this notable new Hill commentary headlined "First Step Act was only half the job; now a ‘Second Step’ is needed." It is worth reading in full, and here are  excerpts:

The First Step Act (FSA) was a landmark achievement in the area of criminal justice reform.  It came at a time of partisan politics and a divided Congress and was the only significant bi-partisan legislation passed during the Trump administration....  I had a unique viewpoint at this time: I was Acting Director of the Bureau of Prisons (BOP) during the negotiations and ultimate passage of the FSA....  But how successful is it?  I argue it was a small start, hopefully, on the way to something bigger.

The FSA had two primary goals: 1) to reduce the overcrowded prison population in the BOP and 2) to provide incentives for people in prison to take recidivism reducing programs which will increase the likelihood that they will succeed upon their release and not return to prison.  In my opinion, the FSA succeeded wildly in number 1, and failed miserably in number 2.  So, in short, yes, we definitely need something bigger: a second step.

While up-to-date data has not been made available, it appears that somewhere between 10,000 and 20,000 people have already been released early under the FSA, with thousands more in the queue.  BOP is still calculating how people earn time credits, and they continue to release more in batches.  Based on those numbers alone, it is hard to argue that the FSA was not successful in reducing the prison population.

The primary incentive offered under the FSA is time credits for completion of recidivation reducing programs. Application of these time credits will allow some people to complete their sentence early and transfer to supervised release, and others to transfer early to halfway houses or home confinement.  The problem with the FSA is that while it incentivizes people to take recidivism reducing programs, the only people eligible for the coveted time credits are those already deemed to be minimum- or low-risk for recidivating.  Said another way, only people assessed as minimum- and low-risk for recidivism are eligible to earn time credits leading to early release. But those are not the people we should be incentivizing to take recidivism reducing programs.  The ones who truly need these programs are those deemed to be of medium or high risk of recidivating.  Aren’t those the people we should be focusing on?  But the FSA does not allow these people to earn time credits....

Let me be clear: I am not saying the FSA is a bad law.  On the contrary, it has resulted in increased program opportunities and other changes to our federal prison system, and it has reduced the number of people in federal prisons.  What I am saying is that the need for a Second Step is great, as people deemed medium or high risk of recidivating are released without the benefit of critical recidivism reducing programs.

About 95 percent of the people currently in our nation’s prisons will be released to our communities. They will be our neighbors.  Isn’t it imperative that we do all we can to ensure that upon release they have the skills, tools, and resources to be productive, law-abiding members of society?  We need Congress to act now, in another bi-partisan effort, to pass laws that will ensure everyone incarcerated today is incentivized and given access to programs that will help reduce their recidivism risk.