Saturday, August 13, 2022

Notable Oregon Court of Appeals ruling upholds broad clemency grants against legal challenges

Fans of clemency law and history will want to be sure to check out a big recent ruling by the Oregon Court of Appeals in Marteeny v. Brown, 321 Or App 250 (Aug. 10, 2022) (available here). The start of the 40+-page opinion provides an effective overview of its coverage:

In 2020 and 2021, Oregon Governor Kate Brown granted clemency to approximately 1,026 convicted felons, comprising three groups: (1) individuals “vulnerable to the effects of COVID-19,” (2) individuals who had fought “the historic wildfires that ravaged the state around Labor Day 2020,” and (3) 73 individuals who were sentenced as juveniles before the passage of Senate Bill (SB) 1008 (2019), sec-25 of which was codified as ORS 144.397.  SB 1008 made substantial changes to the prosecution and sentencing of juvenile offenders, including providing for early release hearings, conducted by the Board of Parole and Post-Prison Supervision (BOPPS), after 15 years of incarceration. The legislature did not make SB 1008 retroactive.  The effect of the Governor’s commutation order for these 73 individuals was to afford them the same procedure, under ORS 144.397, that would be afforded to a juvenile offender convicted today.

Two groups of relators — Douglas Marteeny, Linn County District Attorney, and Patricia Perlow, Lane County District Attorney (the DA relators), and four family members of victims of the crimes of which the some of the youth prisoners were convicted (the victim relators) — petitioned the Marion County Circuit Court for a writ of mandamus directing the Governor, the Department of Corrections (DOC), the Oregon Youth Authority (OYA), and BOPPS “to honor and follow all procedural and substantive provisions of Oregon law.”  In their legal arguments, relators argue that the commutations here were procedurally flawed, and unlawful for a variety of reasons that we detail below.  But underlying those technical arguments exists a palpable emotion that deserves acknowledgement: relators feel that they have been denied justice.

As we detail below, the clemency power of presidents and governors traces its origins to the earliest days of English common law.  The arguments and emotions present in this case echo through the centuries.  The power to pardon, sitting within a singular executive — be they monarch, president, or governor — has always been controversial, seemingly at odds with legislative determination and judicial decision-making.  Whenever it has been used, it has lauded by some, and condemned by others.  We are not called here to judge the wisdom of the Governor’s clemency of these 953 individuals; that is a political question.  We are tasked solely with determining her authority to do so under Oregon law.  And on that narrow question, we conclude that the commutations at issue here were a lawful exercise of the broad clemency power afforded Oregon governors by constitution and statute.

August 13, 2022 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, August 10, 2022

"When a Prison Sentence Becomes Unconstitutional"

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

Mass incarceration has many evils.  One of them is the length and apparent fixedness of many criminal sentences — a relatively new development in the history of American criminal adjudication.  Sympathetic system actors, concerned about this problem, often complain that they lack the ability to revisit sentences that have outlived commonsense value. This complaint has prompted incarcerated people, their families, attorneys, scholars, judges, and even many prosecutors to call for “second-look” legislation that would create the authority they say is needed.

This Article argues that such legislation is unnecessary: the same authority should already exist, under current doctrine, in the substantive component of the federal Due Process Clause and (or) its state analogues.  Though the Supreme Court’s approach to incarceration is anomalous as compared with other fundamental rights, the Court has made clear that incarceration pursuant to a criminal conviction must satisfy rational-basis scrutiny.  Some sentences are plainly irrational: for example, when a person is factually innocent, their incarceration was never rational (though it may have once looked that way).  But a sentence can also become irrational over time.  And there can be no rational basis for continuing to imprison a person when the branch of government responsible for identifying such a basis expressly disclaims it.  In other words, any prosecutor who recognizes a sentencing injustice should, at any point in time, be able to trigger second-look resentencing — a conclusion that provides a previously unexplored doctrinal basis for what some federal courts informally call the “Holloway doctrine.”  (This Article’s account likewise provides a doctrinal grounding for the proposition that the Constitution prohibits the execution of an actually innocent person and requires the retroactive application of a new substantive rule.)

Furthermore, just because a prosecutor asserts a rational basis does not mean that there is one.  Rational-basis scrutiny is forgiving, but it is not altogether toothless, and it offers additional values to social movements — including forcing adverse parties to give reasons for their actions.  Incarceration must be supported by one of the recognized purposes of punishment, and there are instances in which none of those purposes meets the test.  Courts themselves, therefore, have due-process authority to release prisoners whose sentences have come to be irrational, regardless of the prosecutor’s position.  Finally, if the Court ever resolves its fundamental-rights anomaly and subjects prison sentences to strict scrutiny, that scrutiny should apply with equal force to ongoing incarceration.

August 10, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Tuesday, August 09, 2022

"Is the Principle of Desert Unprincipled in Practice?"

The title of this post is the title of this notable new article authored by Marah Stith McLeod now available via SSRN.  Here is its abstract:

Scholars have long debated whether criminal penalties should be based on what defendants deserve (as retributivists argue) or on the practical benefits that sanctions may achieve (as utilitarians believe).  In practice, most states take a pluralistic approach: they treat both desert and utility as important to punishment, with desert operating, at least on paper, as a limiting principle.

Can desert, however, actually limit punishment?  Critics answer no.  They claim that desert is an indefinite and malleable notion, easily invoked to mask discrimination and rationalize draconian sanctions.  Laws in America often emphasize desert, they observe, while feeding mass incarceration.

But the principle of desert is not to blame.  A focus on punishing defendants no more than they deserve can constrain punitive impulses, as it has in the context of capital punishment.  The real problem lies with our current procedures for judging desert, which sap its power as a limiting principle.  These procedures allow sentencing authorities to consider desert and utility at the same time, which blurs two incommensurate concerns and prevents either from serving as a meaningful limit.  Furthermore, they often allow judges to define desert without reference to legitimating community norms.

Desert can limit punishment if it is addressed in a more principled way. Sentencing should begin with desert, before any consideration of utility, so that the moral boundaries of punishment are clearly established.  Lay juries, not judges, should assess desert, and should have the power to limit punishment based on it, even below statutory minimums.  If states allowed defendants to waive this jury sentencing procedure, many might do so in exchange for more favorable plea deals.  But the pleading process would become more fair, for prosecutors could no longer threaten statutory penalties no reasonable jury would deem deserved.

August 9, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (2)

Dozens of Oklahoma lawmakers call for new hearing before next month's scheduled execution of Richard Glossip

As reported in this Guardian piece, a "letter signed by 61 Oklahoma lawmakers — most of them pro-death penalty Republicans — has been sent to the state’s attorney general calling for a new hearing in the case of Richard Glossip, a death row inmate scheduled to be executed next month."  Here is more:

Forty-four Republican and 17 Democratic legislators, amounting to more than a third of the state assembly, have written to John O’Connor pleading for the new hearing.  The outpouring of concern is an indication of the intense unease surrounding the Glossip case, and the mounting fear that Oklahoma is preparing to kill an innocent man.

Glossip, 59, is due to be killed on 22 September as part of a sudden speeding up of capital punishment activity in Oklahoma.  He was sentenced to death for the 1997 murder of Barry Van Treese, the owner of a Best Budget motel in Oklahoma City, where Glossip was manager.

Justin Sneed, the motel’s maintenance worker, admitted that he had beaten Van Treese to death with a baseball bat. But Sneed later turned state’s witness on Glossip, accusing the manager of having ordered the murder.  As a result, Sneed, the killer, avoided the death penalty and was given a life sentence.  Glossip was put on death row almost entirely on the basis of Sneed’s testimony against him, with no other forensic or corroborating evidence.

In their letter, the 61 legislators ask the attorney general to call for a hearing to consider new evidence that has been uncovered in the case.  Last year a global law firm, Reed Smith, was asked by state lawmakers to carry out an independent investigation.  Their 343-page report found that the state had intentionally destroyed key evidence before the trial.  The review concluded that “no reasonable juror hearing the complete record would have convicted Richard Glossip of first-degree murder”.

Glossip’s scheduled execution forms part of an extraordinary glut of death warrants that have been issued by Oklahoma in recent weeks. In July, the state received court permission to go ahead with 25 executions at a rate of almost one a month between now and December 2024....

The first scheduled execution of the 25 is that of James Coddington, 50, on 25 August.  Coddington’s fate is now in the hands of Kevin Stitt, Oklahoma’s Republican governor, after the state’s parole board recommended that he commute the prisoner’s sentence to life without parole.  The clemency petition pointed out that Coddington had been impaired by alcohol and drug abuse starting when he was a baby.  It said he had shown full remorse for having murdered Albert Hale, a friend who had refused to lend him $50 to buy cocaine.

August 9, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, August 08, 2022

Two federal LWOP sentences and a 35-year term for Ahmaud Arbery's killers

In this post six months ago, I asked "Are all three defendants who murdered Ahmaud Arbery now sure to get federal LWOP sentences following federal convictions?". The answer turns out to be no, as detailed in this NBC News article about today's sentencing:

The father and son convicted of murdering Ahmaud Arbery were both given an additional sentence of life in prison Monday on federal hate crime charges, while their neighbor was sentenced to 35 years in prison. A judge also required that Travis McMichael, 36, Greg McMichael, 66, and William “Roddie” Bryan, 52, serve their sentences in state prison, not federal prison as had been requested by their attorneys.

"A young man is dead. Ahmaud Arbery will be forever 25. And what happened, a jury found, happened because he’s Black," U.S. District Judge Lisa Godbey Wood said during Greg McMichael's sentencing.

The McMichaels and Bryan, who are all white, were found guilty in February on federal hate crime charges in the killing of Arbery, a Black man who was running in their neighborhood when the defendants confronted him in February 2020. The three men were convicted of all of the federal charges against them, including hate crimes, attempted kidnapping and the use of a firearm to commit a crime.

Prosecutors sought life sentences for all three men. However, Godbey Wood said she thought it was necessary to distinguish Bryan from the McMichaels, in part because unlike his neighbors, he did not bring a gun with him when the men chased Arbery. "It is not lost on the court that two men brought guns to that situation that had their worst effect and you weren’t one of them," she said. She added, however, that Bryan was “still deserving of an awfully long sentence."...

The federal case followed a state trial in November in which the men were convicted of murder and given life sentences. They have appealed their convictions in that case.

Prior related posts:

August 8, 2022 in Offense Characteristics, Who Sentences | Permalink | Comments (0)

Sunday, August 07, 2022

Interesting Eight Circuit panel ruling rejecting district judge's refusal to dismiss counts in plea process

Thanks to this round up of circuit rulings, I just saw an interesting little Eight Circuit panel ruling in US v. Bernard, No. 21-3412 (8th Cir. Aug. 2, 2022) (available here).   Here are the essential, though interesting folks should check out the full opinion:

The district court had strong views about what charges fit Tiffany Bernard’s crimes. It rejected both her plea agreement and a motion by the government to dismiss four of the five counts in the indictment. The latter ruling went too far, which is why we reverse and remand with instructions to grant the government’s motion....

The parties frame the issue around Federal Rule of Criminal Procedure 48(a), which permits the government, “with leave of [the] court,” to dismiss “an indictment, information, or complaint.”...

Even if the government had to get “leave of [the] court,” it is no blank check for second-guessing charging decisions. To the contrary, “[f]ew subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding . . . whether to dismiss a proceeding once brought.” United States v. Jacobo-Zavala, 241 F.3d 1009, 1012 (8th Cir. 2001) (citation omitted). For that reason, although the district court has some discretion in this area, it “is sharply limited by the separation of powers balance inherent in Rule 48(a).” Id. at 1011–12....

For a dismissal to be “clearly contrary to manifest public interest,” the prosecutor must have had an illegitimate motive rising to the level of bad faith. See United States v. Rush, 240 F.3d 729, 730–31 (8th Cir. 2001) (per curiam) (quotation marks omitted); United States v. Smith, 55 F.3d 157, 159 (4th Cir. 1995).  Examples include the “acceptance of a bribe, personal dislike of the victim, and dissatisfaction with the jury impaneled.”  Smith, 55 F.3d at 159. Anything less is not enough. See In re United States, 345 F.3d 450, 453 (7th Cir. 2003) (explaining that district courts do not get to “play[] U.S. Attorney”).

Here, the district court merely “disagreed with the prosecutor’s assessment of what penalty the defendant[] ought to face.” Jacobo-Zavala, 241 F.3d at 1014. Rather than addressing whether the prosecutor acted in bad faith, the court just listed the reasons it thought Bernard was getting off too easy: she was “very dangerous” and “by far the most culpable”; Alaniz suffered life-threatening injuries; and a “conviction for robbery alone strip[ped] the [c]ourt of any ability to sentence [her] to a just punishment.”  These may be important factors to consider at sentencing, but they are not reasons to interfere with the government’s charging decisions, no matter how much the court may disagree with them.

August 7, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Saturday, August 06, 2022

Lots of news and notes about federal prisons as leadership transitions

This official posting by the federal Bureau of Prisons, headlined "Attorney General Swears in Colette S. Peters," reports on the official transition of leadership for our national prisons agency.  Here is how it starts:

On Tuesday morning, August 2, 2022, Attorney General Garland officiated the Investiture of Colette S. Peters as the 12th Director of the Federal Bureau of Prisons. In his opening remarks, the Attorney General said the mission of the Department of Justice is to "uphold the rule of law, keep our country safe and protect civil rights. And that mission depends on an effective, safe and humane correctional system."

As highlighted by the news and commentary about various federal prisons matters from various outlets, there are plenty of old problems for a new BOP leader to deal with both short- and long-term:

From the AP, "US keeping ex-prison chief as top adviser after rocky tenure"

Also from the AP, "Senate to hold hearing on crisis-plagued federal prisons"

From The Marshall Project, "She Tried to ‘Humanize’ Prisons in Oregon. Can She Fix the Federal System?"

From Reason.com, "Biden's New Bureau of Prisons Director Won't be Able To Run Away From the Agency's Corruption"

Also from Reason.com, "Federal Government Under Fire Over Conditions at Atlanta Federal Prison"

From the Washington Post, "U.S. prison officials resist making inmates pay court-ordered victim fees"

August 6, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Friday, August 05, 2022

ABA House of Delegates considering a number of notable sentencing resolutions

As detailed in this ABA news release from last week, the "American Bar Association’s policymaking body, the House of Delegates, convenes next month to conclude the ABA 2022 Annual Meeting with more than 30 items on the agenda, including several resolutions that address the country’s incarceration challenges and other criminal justice issues." Here is more from the release with links to some key sentencing-related resolutions being considered:

The in-person-only ABA 2022 Annual Meeting begins on Wednesday, Aug. 3. The House, known as the HOD, encompasses 583 delegates from ABA entities and state, local and specialty bar associations and meets Aug. 8-9....

With the posted agenda set weeks in advance of the HOD meeting, late resolutions could be added under certain circumstances to reflect proposed ABA policy responses to national developments during the past few weeks....

Resolution 501 offers the ABA Criminal Justice Standards on Diversion, which provide guidance on various aspects of diversion programs.  The standards are consistent with efforts to reduce collateral consequences; address over-criminalization; reduce incarceration; curtail the burden on and investment in the criminal legal system; and eradicate racial disparities throughout the system.

Resolution 502 urges governmental entities to enact legislation permitting courts to hear petitions that allow hearings to take a “second look” at criminal sentences where individuals have been incarcerated for 10 years.  The report to support the resolution noted that the U.S. is home to less than 5% of the world’s population but houses nearly 25% of the world’s prisoners, adding incarceration disproportionately impacts people of color.

A related Resolution 604 asks governmental entities to adopt the ABA Nine Principles on Reducing Mass Incarceration, suggesting governmental jurisdictions could immediately begin reducing the number of people they incarcerate by following the principles....

For details on all policy resolutions and other matters for consideration during the two-day session, click here. HOD proposals do not become ABA policy until approved by the House, which meets twice annually.

August 5, 2022 in Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, August 04, 2022

At long last, we have a fully loaded USSC: Senate confirms all seven of Prez Biden's nominees to Sentencing Commission

ImagesIn this post in February, 2021, I asked "Any guesses for when we might again have a fully functioning US Sentencing Commission?".  If anyone guessed August 4, 2022, well done: the US Senate tonight voted to confirm all seven of Prez Biden's nominees to the USSC.  This Bloomberg Law piece, headlined "US Sentencing Commission Restocked After Senate Confirmations," starts its report on this exciting news this way:

The Senate confirmed President Biden’s seven nominees to the US Sentencing Commission, fully restocking the panel and giving it the quorum needed to create guidance for the first time since 2019.

The bipartisan group of nominees were confirmed by voice vote, or without a formal tally, Thursday night. The new panel will be led by US District Judge Carlton Reeves, who is the first Black chair in the commission’s history.

As a reminder, this post lists all the folks who tonight are officially US Sentencing Commissioners, and congrats to them all.

As I have noted in prior posts, not only has the USSC gone nearly four years without a quorum needed to complete official actions, it has not had a complete set of seven commissioners in place for the better part of a decade.  But now, thrillingly, the Commission is fully loaded (and I hope ready to roll like Herbie).

Historically, as can be seen at this USSC webpage, back when the US Sentencing Commission was functional, the Commission would usually announce its yearly proposed priorities in June and then finalize those priorities in August.  It will be interesting to see if the new fully loaded Commission will seek to move forward with announced priorities and possible amendments in the coming months or will need considerable time to get up and running effectively.  There are lots of matters, big and small, that need the attention of a functioning Commission, but doing it right is more critical than doing it fast.   

A few prior related posts:

UPDATE: I am pleased to see this official USSC news release about the confirmations titled "Acting Chair Judge Charles Breyer, Incoming Chair Judge Carlton W. Reeves Applaud Senate Confirmation of New Commissioners." Here are excerpts:

The US Senate has confirmed a group of seven bipartisan members to serve on the US Sentencing Commission, providing the independent judicial branch agency with a voting quorum for the first time in more than three years. The Commission is charged with promoting transparency and proportionality in federal sentencing and reducing sentencing disparities.

The newly confirmed members of the Commission are District Judge Carlton W. Reeves, who will serve as Chair of the Commission; Circuit Judge Luis Felipe Restrepo, Laura Mate and Claire McCusker Murray, who are expected to be designated as Vice Chairs; District Judge Claria Horn Boom; former District Judge John Gleeson; and Candice Wong.

Upon appointment of the new Commissioners, current Acting Chair Senior District Judge Charles Breyer will step down from his position at the agency.

Judge Breyer said of the new Commissioners, “It is great news that the Senate has confirmed a full slate of seven bipartisan Commissioners. The lack of a quorum at the Sentencing Commission has created a void in the criminal justice system. As Senior US District Judge for the Northern District of California and Acting Chair of the Sentencing Commission, I know all too well the difficulty judges have faced in implementing the criminal justice reforms enacted by the First Step Act in 2018.”

“In addition, the Commission has been unable to provide guidance on a number of recent sentencing policy challenges, leaving the courts without uniform sentencing standards. The Sentencing Commission is vital to ensuring fairness and effectiveness of federal sentencing guidelines and policy.”

“These new Commissioners have an important task ahead of them. I am grateful to all of them for their willingness to serve in this important capacity, and I am honored and look forward to working with them.”

Incoming Chair Carlton W. Reeves, US District Judge for the Southern District of Mississippi said, “The criminal justice system has some troubling divisions that have emerged among courts on sentencing issues during the years the Commission lacked a quorum.”

“My new Commission colleagues are all highly experienced professionals with vast knowledge of and broad expertise in the criminal justice system.”

“Our diverse backgrounds and expertise will bode well as the Commission works to address these complex issues in a bipartisan matter.”

August 4, 2022 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (3)

WNBA star Brittney Griner sentenced to 9 years(!) in prison by Russian judge for "drug smuggling"

I know next to nothing about Russia's criminal justice system, but I do know I was still shocked to hear about basketball star Brittney Griner's sentencing before a Russian judge today.  This Fox News report provides these details:

Brittney Griner, an American basketball superstar and Olympic gold medalist, learned her hate in a Russian court after she pleaded guilty to a drug charge last month.

A Russian judge convicted Griner of drug possession and drug smuggling and sentenced her to 9 years in prison. She was also fined 1 million rubles, the equivalent of about $16,400.

Griner, 31, appeared in a courtroom in Khimki, just outside Moscow. She issued an apology ahead of her verdict and sentencing as prosecutors pushed for a 9.5-year sentence....

Griner contended she made "an honest mistake" when she brought vape cartridges containing oils derived from cannabis into a Moscow airport back in February, adding "I hope in your ruling it does not end my life." Griner was returning to her Russian basketball team UMMC Ekaterinburg after their was a pause in the season for international play. She called Yekaterinburg her "second home."...

Russian prosecutors argued Griner purposely packed the cannabis oil. Griner’s lawyers argued that Griner was using marijuana to treat pain. But Russian officials said the U.S. laws regarding the legality of the drug had no bearing on the Russian judicial system.

The U.S. State Department had classified Griner as "wrongfully detained." United States Secretary of State Antony Blinken revealed last week that the Biden administration offered a "substantial proposal" for the return of the basketball player and fellow American Paul Whelan. Blinken said during a press conference that the Biden administration made the proposal weeks ago and is hoping to speak to Russian Foreign Minister Sergey Lavrov for the first time since Feb. 15.

Russian media has speculated the trade could be for Viktor Bout, a Russian arms dealer known as the "Merchant of Death," who is serving a 25-year sentence in the U.S. after being convicted of conspiracy to kill U.S. citizens and providing aid to a terrorist organization.

White House press secretary Karine Jean-Pierre told reporters Monday that Russia made a "bad faith" response to the U.S. government’s offer. She did not elaborate. Russian officials have made clear that no prisoner swap could happen until a conviction and sentence is handed down.

President Biden reacted to Russia’s sentencing. "Today, American citizen Brittney Griner received a prison sentence that is one more reminder of what the world already knew: Russia is wrongfully detaining Brittney. It’s unacceptable, and I call on Russia to release her immediately so she can be with her wife, loved ones, friends, and teammates. My administration will continue to work tirelessly and pursue every possible avenue to bring Brittney and Paul Whelan home safely as soon as possible," he said.

It seems likely that all sorts of politics, both international and domestic, played a role in this sentencing outcome. And I am inclined to predict that Griner will be back on American soil well before 2031. But despite all the international intrigue in play and whatever happens next, the sad reality is that the US in the past (and still today) has sentenced plenty of individuals to many years on various types of drug charges.  And that drug war reality necessarily impacts our nation's ability to assert the moral high ground when it comes to reacting to harsh law enforcement in other nations.

August 4, 2022 in Drug Offense Sentencing, Sentencing around the world, Who Sentences | Permalink | Comments (6)

Will SCOTUS ruling in Bruen function to "defund the police" in order to fund government gun-law lawyers?

The question in the title of this post was my reaction to a particular quote by a gun control advocate in this notable new AP article about all the litigation following the Supreme Court's big Second Amendment ruling in Bruen earlier this summer.  The AP piece is headlined "After Supreme Court ruling, it’s open season on US gun laws," and here are excerpts (with the quote highlighted):

The Supreme Court ruling expanding gun rights threatens to upend firearms restrictions across the country as activists wage court battles over everything from bans on AR-15-style guns to age limits.....  “The gun rights movement has been given a weapon of mass destruction, and it will annihilate approximately 75% of the gun laws eventually,” said Evan Nappen, a New Jersey gun rights attorney.

The court battles come as the Biden administration and police departments across the U.S. struggle to combat a surge in violent crime and mass shootings, including several high-profile killings carried out by suspects who purchased their guns legally. And given the sheer number of cases now working through the courts, a lot more time will be spent in courtrooms no matter who wins.   “We will see a lot of tax dollars and government resources that should be used to stop gun crime being used to defend gun laws that are lifesaving and wildly popular,” said Jonathan Lowry, chief counsel and vice president at Brady, the gun control group....

In its New York ruling, the high court’s conservative majority also changed a test lower courts had used for evaluating challenges to gun laws.  Judges should no longer consider whether the law serves public interests like enhancing public safety, the opinion authored by Justice Clarence Thomas said. Instead, they should only weigh whether the law is “consistent with the Second Amendment’s text and historical understanding.”

“Basically, the Supreme Court has given an invitation for the gun lobby to file lawsuits against virtually every gun law in America,” Lowry said....

The ruling also has come up in challenges to restrictions on gun possession for 18- to 20-year-olds in Texas and Pennsylvania. And it has been cited in a case challenging a federal ban on gun possession for people convicted of nonviolent crimes punishable by more than a year behind bars, as well as a prohibition on concealed guns on the subway in Washington, D.C.  In addition, a gun rights group is suing Colorado over the state’s 2013 ban on magazines that hold more than 15 rounds, saying the high court ruling reinforces the group’s argument that it infringes on Second Amendment rights. And the ruling has public defenders in New York City asking judges to drop gun possession cases.

Not all those lawsuits will necessarily be successful. The Texas attorney general, for example, argues the Supreme Court ruling doesn’t affect the state’s age limit law, and more state and local governments can certainly defend their gun laws as being in line with U.S. history.  Adam Skaggs, chief counsel and policy director at the Giffords Law Center to Prevent Gun Violence, predicted that when the dust settles, only laws “along the margins” will eventually be struck down. “Most judges are going to see these for what they are, which is overreaching and lacking in any merit,” he said.

Just as we saw after prior big Second Amendment rulings in Heller and McDonald, it seems most likely that most existing gun control laws will eventually be upheld by lower courts (even though I think the Bruen majority opinion ought to be read as a strong signal that many more broad  gun laws ought to be deemed constitutionally suspect).  But this AP article highlights the reality that Bruen is sure to lead to a whole lot more time and money being spent on a whole lot more court challenges to a whole lot more existing gun laws and regulations.  I seriously doubt that the resources to be spent on all this Second Amendment litigation will come directly from the budgets for police, but I do think it sensible to expect that more time spent by government lawyers and others trying to defend the constitutionality of various laws likely means, as a practical matter, somewhat less time spent by by government lawyers and others vigorously enforcing these and other laws.

(On a somewhat related front, Damon Root at Reason.com has this notable post fully titled "The New York Times Is Surprised To Find Public Defenders Championing the Second Amendment: Yet the civil rights movement has long had a gun rights component.")

 Prior recent related posts:

August 4, 2022 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (0)

Wednesday, August 03, 2022

Oklahoma board recommends clemency for first of many scheduled to be executed in coming months

As noted in this post last month, Oklahoma has scheduled 25 executions over the next few years after the ending a moratorium on lethal injections.  The first of these executions is scheduled for later this month.  But, as this new local article reports, the Oklahoma Pardon and Parole Board voted Wednesday to spare the life of the condemned scheduled to be execution on August 25.  Here are the details:

James Coddington addressed the board himself and expressed remorse for killing his friend, 73-year-old Albert Hale, at Hale’s Choctaw residence in 1997 after Hale refused to give Coddington money for drugs.  “The person that he welcomed into his home was not me, it was a shell of me.  It was a drug addict that didn’t deserve his friendship,” said Coddington.

Hale’s family spoke about their loss to the board.  Son Mitch Hale said he’s forgiven Coddington but the murder devastated the family.  “Not only did he brutally kill a kind, gentle, elderly man, he also killed our family.  When he took my father’s life, he completely destroyed the gathering place and tradition of five generations,” said Hale.

Board member Edward Konieczny, appointed by Gov. Kevin Stitt in Jan., joined Richard Smothermon and Larry Morris in voting for clemency.  Cathy Stocker and Scott Williams voted to deny clemency.

Konieczny cited exceptional childhood abuse, as well as Coddington’s age of 24 years at the time of the murder as concerns. “I certainly want to hear from my colleagues.  We’ve had a number of trainings and conversations around the maturation of a person’s brain and also the impact of abusive environments.  In this particular case, it’s not just somebody suggesting that.  We have documentation of what could be considered extraordinary drug and alcohol and physical and emotional abuse.  I would just appreciate hearing from some of my other colleagues,” said Konieczny....

Smothermon, who has thus far voted to deny clemency to every death row inmate, said how people endure abuse in similar situations matters to him. “Given that environment, what is the resulting actions of other people or children that were in that environment and how did they turn out?”...

Cathy Stocker, appointed by Stitt in Mar., said Coddington’s background was already considered in court and so she voted to deny clemency. Before voting no, Scott Williams acknowledged that Coddington, who earned his GED in prison in 2002, had changed for the better.  “Just from what we’ve seen, I’d say there’s definitely been some change there and he’s had an exemplary record for a number of years.  At the same time, that doesn’t take away from all of the facts and everything we have to consider today,” said Williams....

The board’s clemency suggestion will go to Stitt to decide.  Coddington is still scheduled for execution Aug. 25.

Prior recent related posts:

August 3, 2022 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Juries, Democracy, and Petty Crime"

The title of this post is the title of this interesting new paper authored by J.D. King now available via SSRN. Here is its abstract:

The right to trial by jury in criminal cases is basic to the design of American criminal justice and to the structure of American government. Guaranteed by Article III of the Constitution, the Sixth Amendment, and every one of the original state constitutions, the criminal jury was seen as critically important not only to the protection of individual rights but also to the architecture of American democracy.  The vast majority of criminal prosecutions today, however, are resolved without even the prospect of community review by a jury.  Despite the textual clarity of the guarantee, the Supreme Court has long recognized a “petty offense” exception to the right to trial by jury.

As systems of mass adjudication and hyper-incarceration have developed over the past several decades, a parallel process of collateral consequences has also arisen and is now well-documented.  Recognizing that a conviction for even a low-level offense can have devastating effects, some courts have begun to narrowly interpret the “petty offense” exception, especially where a conviction could have severe immigration-related consequences.  As a result, some jurisdictions now provide stronger procedural protections for non-citizen defendants than for citizen defendants charged with similar offenses.  Although these courts are certainly correct in characterizing these offenses as “serious” and thereby providing those defendants a right to a jury trial, their reasoning imports a defendant-specific subjectivity that is in tension with prior Supreme Court guidance, and the results pose questions of legitimacy as different defendants are treated differently because of citizenship status.

As advocates push to expand the right to trial by jury, the Supreme Court should revisit the “petty offense” exception in light of the expansive web of collateral consequences that has developed in the past few decades.  In Ramos v. Louisiana, the Court grappled with the question of stare decisis and overruled decades-old precedent on the constitutionality of non-unanimous jury verdicts, recognizing that the Court should be most willing to reconsider precedent in cases involving constitutional criminal procedure. At the same time, state legislatures should address the problem by extending the state right to jury trials to cover all criminal prosecutions.  The implications of such changes would extend beyond a procedural reform that would affect the rights of individual defendants.  Expansion of the jury trial right would constitute a meaningful structural reform in democratizing criminal justice at a time when such change is needed to establish the popular legitimacy of the criminal justice system.

August 3, 2022 in Collateral consequences, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, August 02, 2022

"McCleskey Accused: Justice Powell and the Moral Price of Institutional Pride"

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

Writing for the Supreme Court in McCleskey v. Kemp, Justice Lewis F. Powell, Jr. authored a maximalist decision that transcended capital practice and effectively barred constitutional claims of systemic inequality.  Powell would ultimately come to regret the ruling, announcing in retirement that the death penalty should be abolished entirely.  Powell struggled, then, with an apparent tension between moral conviction and purported legal command — a tension that Robert Cover called a “moral-formal dilemma.”  Cover used this concept to evaluate the decision-making processes of antebellum abolitionist judges asked to apply the fugitive slave acts.  These judges knew better but repeatedly refused to do better, resorting instead to a set of methodological crutches to make immoral outcomes appear legally inevitable.  And, in McCleskey, Powell relied upon some of the same crutches.

In other ways, however, Powell’s opinion does not fit neatly within the Cover mold.  Cover rooted the cowardice of his antislavery judges in the “thoroughgoing positivism” of the era.  But Powell was not a positivist.  Indeed, he was not even a death-penalty abolitionist — at least not in the way we would normally understand that term.  What, then, accounted for Powell pursuing such a remarkably similar — and similarly shoddy — moral, prudential, and jurisprudential course?  In this essay, I dissect McCleskey v. Kemp.  I argue that amoral positivism cannot explain the opinion.  To understand Powell’s motivation, we must dig deeply into his biography.  There we discover his abiding principled commitment to a particular brand of anti-positive hubris.  Powell was a proud institutionalist — a moral orientation that constituted an implicit bias, which prevented him from considering adequately the moral interests of systemic outsiders.  I conclude the essay with a sketch of the kind of judge who could better confront the quandary of whether to apply immoral law.  Perhaps surprisingly, this judge is a type of positivist — a skeptical positivist.

August 2, 2022 in Death Penalty Reforms, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, August 01, 2022

Prez Biden "Safer America Plan" seeks more cops and fewer (state) mandatory minimums with a federal drug sentencing kicker

Via this new "Fact Sheet," the While House today provides lots and lots more details on the "Safer America Plan" that Prez Biden announced a few weeks ago.  There are far too many particulars to summarize them here, and here are the points emphasized at the outset of this Fact Sheet:

Today, the President is providing greater details regarding the Safer America Plan. President Biden’s fiscal year 2023 budget requests a fully paid-for new investment of approximately $35 billion to support law enforcement and crime prevention -- in addition to the President’s $2 billion discretionary request for these same programs.  The Safer America Plan details how this $37 billion will be used to save lives and make communities safer.

Specifically, the Plan:

  1. Funds the police and promotes effective prosecution of crimes affecting families today, including by funding 100,000 additional police officers who will be recruited, trained, hired, and supervised consistent with the standards in the President’s Executive Order to advance effective, accountable community policing in order to enhance trust and public safety;
  2. Invests in crime prevention and a fairer criminal justice system, including by investing $20 billion in services that address the causes of crime and reduce the burdens on police so they can focus on violent crime, and by incentivizing the reform of laws that increase incarceration without redressing public safety;
  3. Takes additional commonsense steps on guns to keep dangerous firearms out of dangerous hands, including by calling on Congress to require background checks for all gun sales and ban assault weapons and high-capacity magazines.

The request to fund 100,000 additional police officers and to advance various gun control measure will surely garner the most attention, but there are some items that ought to be of particular interest for sentencing fans. For example:

The Plan establishes a new $15 billion over 10 years Accelerating Justice System Reform grant program that jurisdictions can use to advance strategies that will 1) prevent violent crime and/or 2) ease the burden on police officers so they do not have to respond to non-violent situations that may not merit police intervention.  Doing so not only enhances public safety, but also delivers evidence-based criminal justice reform that advances racial equity....

[I]n order to receive these critical grants, jurisdictions must repeal mandatory minimums for non-violent crimes and change other laws that contribute to increased incarceration rates without making our communities safer.  The Plan calls on Congress to appropriate $14.7 billion in mandatory funding for this new program, which will add on to the $300 million request in the President’s FY23 discretionary budget to fully fund this effort.

In addition, this Plan address drug enforcement and sentencing in two ways:

Impose tough penalties on all forms of fentanyl.  Over 100,000 people have died from drug overdoses in the past 12 months, many of them from the synthetic opioid fentanyl. The federal government regulates fentanyl as a Schedule I drug, meaning it is subject to strict regulations and criminal penalties.  But drug suppliers have found a loophole: they can easily alter the chemical structure of fentanyl — creating “fentanyl related substances” — to enhance the drug’s psychoactive properties and try to evade regulation of fentanyl. The Drug Enforcement Administration and Congress temporarily closed this loophole, but it will reopen in January 2023 unless Congress acts.  The Safer America Plan includes the Administration’s 2021 proposal to permanently schedule all fentanyl related substances into Schedule I so traffickers of these deadly substances face the penalties they deserve....

End the crack-powder disparity and make the fix retroactive. The Safer America Plan calls on Congress to end once and for all the racially discriminatory sentencing disparity between crack cocaine and powder cocaine offenses — as President Biden first advocated in 2007 — and make that change fully retroactive.  This step would provide immediate sentencing relief to the 10,000 individuals, more than 90 percent of whom are Black, currently serving time in federal prison pursuant to the crack/powder disparity.

I cannot help but note that federal law includes lots of mandatory minimum provisions for non-violent crimes (such as drug offenses) that contribute to increased incarceration rates without any clear evidence that those provisions make our communities safer.  Notably, when on the campaign trail, candidate Joe Biden stated that he "supports an end to mandatory minimums" and that "as president, he will work for the passage of legislation to repeal mandatory minimums at the federal level."  Though I am pleased to see Prez Biden fulfill a campaign promise to "give states incentives to repeal their mandatory minimums," I hope he might before too long focus needed attention on federal mandatory minimum repeal as well.

August 1, 2022 in Criminal justice in the Biden Administration, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

District judge sentences first Jan 6 rioter convicted at trial to 87 months in federal prison (which was bottom of calculated guideline range)

As reported in this Politico article, after an extended sentencing hearing, a "Texas militia member on Monday received the longest sentence to date of any participant in the Jan. 6, 2021, attack on the Capitol: seven-and-a-quarter years in prison."  Here are some of the notable details:

Guy Reffitt, 49, was the first Jan. 6 defendant to go before a jury and was convicted in March on five felony charges, including interfering with police during civil disorder, obstructing the tallying of the electoral votes and threatening his children if they reported him to authorities.

However, U.S. District Court Judge Dabney Friedrich declined the Justice Department’s request to treat Reffitt’s crimes as terrorism, which would have substantially increased the recommended sentence under federal guidelines. 

It was federal prosecutors’ first request to draw tougher punishment for a Jan. 6 defendant by classifying his actions as domestic terrorism, but the judge concluded it was not appropriate to apply the more severe sentencing guidelines permitted under federal law in terrorism-related cases. Friedrich said applying the sentencing enhancement to Reffitt would create an “unwarranted sentencing disparity” with other cases involving similar threats or conduct related to the Capitol riot.

“There are a lot of cases where defendants possessed weapons or committed very violent assaults,” Friedrich noted, highlighting that the most severe sentences handed down in Jan. 6 cases thus far were a little more than five years while prosecutors asked for a 15-year sentence against Reffitt. “The government is asking for a sentence that is three times as long as any other defendant and the defendant did not assault an officer.”...

Assistant U.S. Attorney Jeffrey Nestler said Reffitt’s discussions before and after Jan. 6 make clear he was intent on carrying out his repeated threats to drag Speaker Nancy Pelosi and Senate Minority Leader Mitch McConnell from the Capitol building by force. In discussions caught on video, Reffitt was recorded referring to his desire to listen to the lawmaker’s heads bouncing down the Capitol steps. “He was planning to overtake our government. He wasn’t just trying to stop the certification,” Nestler said. “He wasn’t done. Jan. 6 was just a preface. ... Mr Reffitt is in a class all by himself.”

However, Friedrich said prosecutors had urged much shorter sentences in cases involving people who were directly involved in actual violence against police. “You’re making recommendations that are way different than you’re making in this case — way different,” said the judge, an appointee of President Donald Trump.

Friedrich also said she worried that Reffitt not be unduly punished for deciding to go to trial, rather than enter into a plea bargain with prosecutors. “His decision to exercise his constitutional right to go to trial should not result in a dramatically different sentence,” she said.

Nestler also noted that Reffitt was convicted of having a handgun on his hip while on the Capitol grounds, which Friedrich conceded was an important distinction from the other cases to reach sentencing thus far. “Huge, huge … and does the firearm deserve three times the sentence if it was not brandished or used in any way?” the judge asked.

Another unusual aspect of Reffitt’s case is that he was convicted of threatening to injure his two children if they discussed his actions on Jan. 6 with authorities. One of those children, Peyton Reffitt, spoke briefly during Monday’s hearing to urge leniency for her father. She suggested that Trump was more responsible for the events that day than her father was. “My father’s name was not on all the flags that were there that day that everyone was carrying that day,” Peyton said. “He was not the leader.”

As noted in a prior post, the presentence report had calculated Reffitt's guidelines range to be 108 to 135 months, but Judge Friedrich did not apply all the suggested guideline enhancement and ultimately  sentence him at the bottom of the guideline range calculated by her to be 87 to 108 months.

A few of many prior related posts:

UPDATE: I found notable this Insider article which is headlined "Trump 'deserves life in prison' says daughter of January 6 rioter who was sentenced to 7 years behind bars." Here are excerpts:

The daughter of a man sentenced to 7 years in prison on Monday for taking part in the January 6 insurrection told reporters that the former president, whose supporters stormed the US Capitol, deserves to spend the rest of his life behind bars if her father was going to get his sentence....

After Reffitt was sentenced, his daughters spoke to the media and argued that it was not fair for their father to receive such a long prison term while more powerful people remain free.

"To mark my dad as this horrible person, and then having him prosecuted like this, when somebody is maybe even able to get elected again? Doesn't seem right to me," Sarah Reffitt told reporters.

"Trump deserves life in prison if my father is in prison for this long," Petyon Reffitt added.

August 1, 2022 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Sunday, July 31, 2022

"AEDPA Repeal"

The title of this post is the title of this new article authored by Brandon Garrett and Kaitlin Phillips available via SSRN.  Here is its abstract:

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) dramatically altered the scope of federal habeas corpus.  Enacted in response to a domestic terrorism attack, followed by a capital prosecution, and after decades of proposals seeking to limit post conviction review of death sentences, and Supreme Court rulings severely limiting federal habeas remedies, AEDPA was ratified with little discussion or deliberation.  The law and politics of death penalty litigation, which had been particularly active since the U.S. Supreme Court invalidated all death penalty schemes in its 1972 ruling in Furman v. Georgia, culminated in restrictions for all federal habeas corpus cases, whether capital or non capital.  Still more perverse, the impact of AEDPA was particularly strong in non capital cases. Since its enactment, AEDPA has been widely criticized by academics, legislators, and judges, for erecting a complex, poorly drafted set of procedural barriers, and for limiting federal review on the merits of most constitutional claims.

This Article examines statutory approaches designed to restore federal habeas corpus.  Any partial or complete repeal of AEDPA raises complex and unexplored issues.  The central challenge is that AEDPA operates alongside decades of Supreme Court created restrictions of federal habeas corpus.  In this Article, we walk through proposals for how AEDPA provisions could be amended, benefits and costs of each change, and how Supreme Court doctrine affects each choice.  AEDPA repeal is not as simple as eliminating the judicially created doctrine of qualified immunity in civil rights litigation.  However, real improvements to federal habeas practice are achievable, and in this Article, we provide a legislative roadmap for habeas reform through AEDPA repeal.

July 31, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (11)

Saturday, July 30, 2022

Federal judge orders Mississippi jail into receivership

As reported in this AP article, a "federal judge has seized control of a Mississippi jail after citing 'severely deficient' conditions at the facility." Here is more about a notable ruling:

In a Friday ruling, U.S. Southern District of Mississippi Judge Carlton Reeves placed Hinds County’s Raymond Detention Center in Raymond into receivership. The judge will soon appoint an expert, known as a “receiver,” to temporarily manage the facility in hopes of improving its conditions.

“After ample time and opportunity, regretfully, it is clear that the county is incapable, or unwilling, to handle its affairs,” the judge wrote. “Additional intervention is required. It is time to appoint a receiver.” Reeves said that deficiencies in supervision and staffing lead to “a stunning array of assaults, as well as deaths.” Seven individuals died last year while detained at the jail, he said.

County officials said they’re still digesting the order and are determining whether they will appeal, WLBT-TV reported.

Federal and state judges have ordered receiv­er­ships or a similar trans­fer of control for pris­ons and jails only about eight times, according to Hernandez Stroud, an attorney at the Brennan Center for Justice at NYU School of Law. “What this receivership order looks like is totally within the court’s discretion,” Stroud said. “What powers to give the receiver, how long the receivership should last — those are matters that Judge Reeves will figure out.”

Judge Reeves's 26-page opinion in this matter is available at this link, and here is a portion of its conclusion:

Nearly six years ago, the County entered into a Consent Decree, and later, a Stipulated Order, with the United States to ameliorate the unconstitutional conditions of confinement in its jail system.  Its efforts succeeded at the Work Center. That facility is no longer under federal supervision.  At RDC, however, the dire circumstances that drove this settlement persist.

The County refuses to take responsibility. Instead, it offers a litany of excuses.  But each of these excuses ultimately boils down to the same argument: conditions at RDC are out of the defendants’ hands.  The County wishes to abdicate responsibility for ensuring the health and safety of detainees in its custody.  The Court is compelled to grant that wish. We can’t wait for continued destruction of the facilities.  We can’t wait for the proliferation of more contraband.  We can’t wait for more assaults.  We can’t wait for another death.  The time to act is now.  There is no other choice, unfortunately.

Upon appointment of a receiver, RDC shall no longer languish in the County’s inadequate grip.  The Court will appoint a federal receiver to oversee operations at RDC, who shall begin work as soon as possible, but no later than November 1, 2022.

Though not directly relevant to this ruling, I still think it worth reminding everyone that Judge Reeves is Prez Biden's nominee to be the Chair of the US Sentencing Commission.

July 30, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Friday, July 29, 2022

Via multiple rulings, Michigan Supreme Court places new restrictions on when juveniles can receive life sentences

The Michigan Supreme Court yesterday issued five(!) rulings addressing, and generally restricting, whether, when, and how juveniles convicted of homicide can receive sentences of life with or without parole.  Some of the most notable of the rulings are discussed in these press pieces that have headlines providing a basic summary:

"Mich. court bars automatic life sentences for 18-year-olds"

"State Supreme Court rules life with parole for juveniles who commit 2nd-degree murder violates MI Constitution"

"Michigan high court extends juvenile age for first-degree murder sentences; Ruling in Macomb County case also places burden on prosecutors for juvenile life sentences"

Here are links to all of the Michigan Supreme Court rulings, all of which are quite lengthy and divided:

154994, People v Robert Taylor 7/28/2022

162425, People v Montez Stovall 7/28/2022

162086, People v Kemo Parks 7/28/2022

157738 & 158695, People v Demariol Boykin, People v Tyler Tate 7/28/2022

Because Michigan has long had a significant juvenile lifer population, I suspect these rulings can and will lead to a notable number of resentencing in the state.  I would be eager to hear from Michigan experts about just how consequential these rulings might prove to be.

UPDATE:  Ashley Nellis of the Sentencing Project has this new tweet noting part of the likely impact of these state rulings:

Michigan #LWOP ban for 18 yr olds should ease the excessive sentences imposed on ~300 people sentenced for first and second degree murder.

July 29, 2022 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, July 28, 2022

Alabama completes execution despite opposition from victim's family

As reported in this AP piece, an "Alabama inmate convicted of killing his former girlfriend decades ago was executed Thursday night despite pleas from the victim’s family to spare his life." Here is more:

Joe Nathan James Jr. received a lethal injection at a south Alabama prison after the U.S. Supreme Court denied his request for a stay.

James was convicted and sentenced to death in the 1994 shooting death of Faith Hall, 26, in Birmingham. Hall’s daughters have said they would rather James serve life in prison, but Alabama Gov. Kay Ivey said Wednesday that she planned to let the execution proceed.

Prosecutors said James briefly dated Hall and he became obsessed after she rejected him, stalking and harassing her for months before killing her. On Aug. 15, 1994, after Hall had been out shopping with a friend, James forced his way inside the friend’s apartment, pulled a gun from his waistband and shot Hall three times, according to court documents...

The execution began a few minutes after 9 p.m. CDT following a nearly three-hour delay that the state did not immediately explain. James did not open his eyes or any show visible movements before the execution began. He did not move or speak when the warden asked if he had any final words. His breathing slowed until it was not visible and he was pronounced dead at 9:27 p.m.

Hall’s two daughters, who were 3 and 6 when their mother was killed, had said recently that they would rather James serve life in prison. The family members not attend the execution. “Today is a tragic day for our family. We are having to relive the hurt that this caused us many years ago,” the statement issued through state Rep. Juandalynn Givan’s office read. Givan was a friend of Hall’s.

“We hoped the state wouldn’t take a life simply because a life was taken and we have forgiven Mr. Joe Nathan James Jr. for his atrocities toward our family. ... We pray that God allows us to find healing after today and that one day our criminal justice system will listen to the cries of families like ours even if it goes against what the state wishes,” the family’s statement read.

Alabama Gov. Kay Ivey said she would not intervene. In a statement Thursday night, Ivey said she deeply considers the feelings of the victim’s family and loved ones, but “must always fulfill our responsibility to the law, to public safety and to justice.”... She said the execution sends an,” unmistakable message was sent that Alabama stands with victims of domestic violence.”

Prior related post:

July 28, 2022 in Death Penalty Reforms, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, July 27, 2022

Great new Robina Institute report on "Examining Prison Releases in Response to COVID"

I was so pleased to see this week that the Robina Institute of Criminal Law and Criminal Justice has this great big new report titled "Examining Prison Releases in Response to COVID: Lessons Learned for Reducing the Effects of Mass Incarceration."  The full 86-page report is a must read and it so rich and intricate, I can only here excerpt a portion of the executive summary:

In response to the global pandemic in 2020, states and the federal government began to make non-routine releases from prison in order to reduce prison populations to allow for social distancing in prison facilities. This report is aimed at describing where such prison releases occurred, the legal mechanisms used to achieve these releases, and the factors within jurisdictions that made non-routine prison releases more or less likely to occur. We write this report, not to examine the national response to the pandemic, but to better understand when and how extraordinary measures may be used to effect prison release, and to determine whether there are lessons from this experience that can be applied to reducing the effects of mass incarceration.

Prevalence of Release:

  • We estimate that a total of 80,658 people were released from prisons in 35 jurisdictions (34 states and the federal prison system) due to COVID-related policies, which was equivalent to about 5-1/2% of the total state and federal prison population in 2019.
  • Most COVID-related releases were quite modest, amounting to the equivalent of less than 10% of the 2019 prison populations in 27 of the 35 jurisdictions in which releases occurred (Figure 2).

Legal Mechanisms:

  • The legal mechanisms used most frequently to release people from prison during the pandemic were parole (11 jurisdictions), compassionate release (10 instances in 9 jurisdictions), home confinement (8 jurisdictions), commutation (7 jurisdictions), and good time or earned time credits (6 jurisdictions) (Figure 3).

Criteria for Release:

  • Type of crime, COVID health risk, and time left to serve on one’s sentence were the criteria most frequently used — either alone or in combination — to determine eligibility for release due to COVID-related policies.
  • Most release groups (39 of 73) required that a person had to have been convicted of a non-violent offense (Figure 4).
  • COVID health risks — addressing both medical vulnerability and age — were used as criteria in 38 of 73 release groups (Figure 6).
  • Most release groups (37 of 73) required that a person have a short time left to serve on their sentence (Figure 7). Though the amount of time varied from 30 days in New Mexico to 5 years in Kentucky, the average was 9 months, and the most frequently used time period was 12 months.

Political and Structural Influences:

  • Gubernatorial leadership played a larger role in whether the jurisdictions made releases, with fewer jurisdictions with Republican leadership making releases. However, determinacy may have affected how many releases were possible, with indeterminate jurisdictions making larger releases than determinate jurisdictions regardless of political leadership.
  • All but three Democratic-led jurisdictions (21 of 24) made COVID-related prison releases while only about half of Republic-led jurisdictions (14 of 27) did so (Table 4).
  • Nearly all of the jurisdictions (7 of 8) with the largest COVID-related releases — those greater than 10% of the 2019 prison population — were indeterminate in structure.

July 27, 2022 in Data on sentencing, Detailed sentencing data, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Recapping some notable Senate hearings on prisons and pot

Yesterday saw two notable hearing on Capitol Hill on criminal justice concerns, and here is some press coverage providing a partial summary of some of what transpired:

From the AP, "Prisons chief deflects blame for failures, angering senators":

With just days left in his tenure, the embattled director of the federal prison system faced a bipartisan onslaught Tuesday as he refused to accept responsibility for a culture of corruption and misconduct that has plagued his agency for years.

Bureau of Prisons Director Michael Carvajal, testifying before the Senate’s Permanent Subcommittee on Investigations, insisted he had been shielded from problems by his underlings — even though he’d been copied on emails, and some of the troubles were detailed in reports generated by the agency’s headquarters.

Carvajal, who resigned in January and is set to be replaced next week by Oregon’s state prison director Colette Peters, blamed the size and structure of the Bureau of Prisons for his ignorance on issues such as inmate suicides, sexual abuse, and the free flow of drugs, weapons and other contraband that has roiled some of the agency’s 122 facilities.

From Courthouse News Service, "Marijuana decriminalization takes center stage at Senate hearing":

[Senator Cory] Booker, chairman of the subcommittee and the only Black senator on the Senate Judiciary Committee, said that the federal criminalization of cannabis has “miserably failed” and has led to a “festering injustice” of selectively enforced drug laws disproportionately targeting Black and brown communities.  Nationally, according to a 2020 report by the ACLU, a Black person is nearly four times more likely to be arrested for possession of marijuana than a white person, despite the fact that marijuana use is equally common among racial groups. “Cannabis laws are unevenly enforced and devastate the lives of those most vulnerable,” Booker said during the Tuesday hearing....

Republican Senator Tom Cotton of Missouri hit out against the legislation, alleging it “would wipe clean the criminal records of illegal alien traffickers.”  “When these criminals trafficked marijuana, they broke the law. Whether some find that law unfashionable or even unfair, what they did was illegal,” Cotton said.

Weldon Angelos, who was sentenced to 55 years in prison for possessing several pounds of marijuana as well as a firearm and was later pardoned by former President Donald Trump, told the committee that expungement is a critical part of the legislation in order to address what he sees as a racially motivated ban on marijuana.  “Each arrest, prosecution, conviction and sentence makes the world a little bit smaller for those bearing the modern scarlet letter,” Angelos said, referring to what it’s like to live with a drug conviction....

Edward Jackson, chief of the Annapolis Police Department, testified in support of the bill, saying “there is nothing inherently violent” about cannabis.  Jackson asserted that decriminalization would both improve community trust in police and allow officers to focus on higher priority and violent crimes.  “I have spent far too much time arresting people for selling and possessing cannabis,” Jackson said.

July 27, 2022 in Pot Prohibition Issues, Prisons and prisoners, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Another notable lengthy sentence imposed on another Jan 6 rioter

This Washington Post article, headlined "D.C. man is 2nd to receive longest sentence in Jan. 6 police assault; Mark K. Ponder, 56, was handed a 63-month prison term for attacking police in the Capitol riot," reports on yet another notable sentencing in yet another January 6 riot case.  Here are excerpts:

A District man who assaulted three police officers and shattered a riot shield with a pole was sentenced to 63 months in prison Tuesday, matching the longest sentence handed down to a defendant convicted in the Jan. 6, 2021, Capitol attack.

Mark K. Ponder, 56, admitted to fighting with police in video-recorded confrontations between 2:31 p.m. and 2:48 p.m. that day in the area of the lower west terrace of the Capitol, which was overrun by a violent mob angered by President Donald Trump’s false claims that the 2020 election was stolen.  Ponder pleaded guilty April 22 to one count of assaulting an officer using a dangerous weapon.

“He was leading the charge,” U.S. District Judge Tanya S. Chutkan said, reciting at sentencing how Ponder smashed a thin pole against an officer’s riot shield so hard that the pole broke and the shield shattered, then found a thicker pole, colored red, white and blue, and resumed fighting.  “He wasn’t defending himself or anybody else. He was attempting to injure those officers, and we are lucky [someone] was not killed with the force Mr. Ponder is swinging those poles,” the judge said.

Chutkan in December handed down a similar 63-month sentence to Robert S. Palmer, 54, of Largo, Fla., who joined the front of the mob and hurled a fire extinguisher, plank and pole at police. Like Palmer, Ponder was “part of a group who, when they couldn’t get what they wanted, decided they were going to take it.  And they were going to take it with violence,” Chutkan said, saying they felt entitled “to attack law enforcement officers who were just doing their jobs.”...

Chutkan has emerged as the toughest sentencing judge in Capitol riot cases and exceeded prosecutors’ request to sentence Ponder to five years in prison, the low end of a federal advisory sentencing range of 57 to 71 months, in keeping with a plea deal.  Assistant U.S. Attorney Jocelyn P. Bond said a five-year term was justified by the seriousness of the offense as well as by Ponder’s return to the scene at 4 and 5 p.m. after he was tackled, handcuffed and then told to leave by police because officers needed to reinforce other parts of the Capitol complex....

Former U.S. Capitol Police sergeant Aquilino Gonell gave an in-person victim impact statement, telling the court as one of the officers struck by Ponder that there is “no doubt” he understood he was hitting police officers and “had the will and the intent to continue doing harm.”  The former sergeant said that he took early retirement as a result of the attack, that he was left with mental and physical injuries and that “my family has suffered, emotionally and financially.” Gonell told Chutkan that Ponder’s claim that he got “caught up” in the violence “is BS, and please don’t fall for it.” “He has changed my life,” said Gonell, a 16-year police veteran who served with the U.S. Army in Iraq.

Ponder asked for mercy, saying that while like Palmer he had a criminal history, he was a “changed person for the last 12 years” since his release from prison after convictions for bank and armed robbery. “I never meant for this to happen. I went there with the intention of going on a peaceful protest,” Ponder said. But he said that he “wasn’t thinking” after he was pepper-sprayed by police, and after the tension and anger in the crowd stoked by the former president erupted into “chaos.”...

Defense attorney Joseph R. Conte added that Ponder, a lifelong resident of the Washington area, overcame a crack cocaine addiction and before Jan. 6 had no contact with police since his incarceration. Ponder was the product of a broken home and suffered abuse as a child “as severe as any I’ve seen in my career,” Conte said, to which Chutkan responded, “I don’t disagree.” The judge waived any fine and said she would recommend that Ponder be allowed to serve his sentence near Washington, saying she hoped the defendant “will be able to get mental health treatment and counseling and be able to live the rest of his life without getting into trouble with law enforcement.”

Some of many prior related posts:

July 27, 2022 in Celebrity sentencings, Offense Characteristics, Who Sentences | Permalink | Comments (1)

Tuesday, July 26, 2022

"Inmate Assistance Programs: Toward a Less Punitive and More Effective Criminal Justice System"

The title of this post is the title of this new paper now available via SSRN and authored by Murat C. Mungan, Erkmen Giray Aslim and Yijia Lu.  Here is its abstract:

High recidivism rates in the United States are a well-known and disturbing problem.  In this article, we explain how this problem can be mitigated in a cost-effective manner through reforms that make greater use of humane methods that help inmates rather than using more punitive measures.

We focus on Inmate Assistance Programs (IAPs) adopted by many states.  Some of these programs provide inmates with valuable skill sets to utilize upon their release while others are geared towards treating mental health and substance use disorder problems.  IAPs are likely to reduce recidivism by lowering ex-convicts’ need to resort to crime for income as well as reducing their likelihood of committing crimes impulsively under the influence of substances and mental disturbances.  However, those who oppose IAPs quickly point out that they involve significant costs, and may reduce the general deterrence effects of criminal punishment.  These objections are based on simple economic theories which suggest that IAPs can reduce general deterrence by providing inmates with benefits that partially off-set the expected costs of punishment.  Thus, whether IAPs can be used in a cost-effective manner is an empirical question, whose answer depends on the trade-off between its recidivism reducing effects on the one hand, and its financial and general deterrence costs on the other.

Here, we provide the first empirical analysis of IAPs’ general deterrence effects after explaining why these effects are likely to be insignificant under a more complete economic theory which accounts for knowledge hurdles; discounting of future outcomes; impulsive behavior; and loss aversion.  Our empirical analysis focuses on the impact of increased welfare benefits provided to certain inmates by states which chose to opt out of the 1996 federal ban under the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA).  This act prevented drug offenders from using welfare benefits and food stamps.  Consistent with our theoretical predictions, and using a difference-in-differences design, we find no statistically significant impact of states’ decisions to opt out of the PRWORA bans on the general deterrence of drug crimes.

Subsequently, we build on prior economic theories as well as our empirical observations to explain how the criminal justice reforms that use shorter imprisonment sentences and more frequent use of IAPs can reduce crimes as well as the costs of administering the criminal justice system.  The cost savings from reducing sentences for repeat offenders can be used to finance IAPs without significantly affecting deterrence due to the ineffectiveness of lengthy imprisonment sentences.  Thus, our analysis suggests IAPs can, in fact, be used in a cost-effective manner to reduce crime, and are valuable and humane tools that policy makers ought to consider as alternatives to punitive measures.

July 26, 2022 in Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

New NY Gov so far has ugly clemency record like last NY Gov

Roughly a year ago, anticipating the resignation of disgraced NY Gov Andrew Cuomo, I wondered in this post whether a change in New York leadership might lead to a better record on clemency.  As noted in that post, Cuomo had talked big about NY clemency efforts in 2015 and again in 2017, but he never thereafter delivered any significant results.  This new press piece, headlined "Governor Hochul’s ‘Rolling’ Clemency Process Has Set Just One Person Free," suggests that there is little reason for new clemency optimism with the new NY Gov.  Here is an excerpt:

In 2015, Cuomo announced the formation of the state’s executive clemency bureau to identify people who might be worthy of commutation. His announcement encouraged thousands serving decades-long sentences across the state to ask for clemency.  By the time Cuomo left office last year, the clemency bureau had received more than 10,000 applications ... [but] Cuomo issued only a total of 41 commutations in response.

When Kathy Hochul took office, those seeking clemency — and their loved ones — hoped that she would show more compassion than her predecessor.  On Christmas Eve 2021, Governor Hochul announced plans to devote additional staff resources into clemency and create an advisory panel.  She also declared that she would grant clemency on "a rolling basis" rather than only once each year.  That day she granted nine pardons and one commutation.  The singular commutation devastated many behind bars — and outraged family members and advocates — who had hoped for more.

Seven months later, Hochul has granted no other clemencies. Since becoming governor, her office has received 286 applications for commutations, and 82 for pardons.  At an event in mid-July, the governor told reporters that her office was overhauling the clemency system, including creating uniform applications for commutations and pardons, and instituting a process notifying applicants of their status.  She also said that she was still considering who to appoint for her clemency advisory board.  "It’s not an overnight process, but it’s one that’s going to be thoughtful, and one that will be long-term enduring," Hochul said.

The delays are frustrating advocates who have been working for years to push the governor’s office to fully exercise its executive power to grant more clemencies.  "There are fully vetted, powerful, robust applications, hundreds on her desk, so if she wanted to do it, they’re there," said Steve Zeidman, co-director of the CUNY Law School’s Defenders Clinic Second Look Project.  "We filed some going back four or five years that we supplement from time to time. It's not as if there aren't applications. It's just the will to do it."

Some prior related posts:

July 26, 2022 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, July 25, 2022

US Senate hearing on "Decriminalizing Cannabis at the Federal Level: Necessary Steps to Address Past Harms"

The quoted portion of the title of this post is the title of this hearing scheduled for tomorrow afternoon by the Subcommittee on Criminal Justice and Counterterrorism of the US Senate Judiciary Committee.  Based on the topic alone, this hearing seemed worth checking out.  But the folks at Marijuana Moment already have the list of planned witnesses, and now I am even more eager to have an eye on this event.  Here are the details (with links from the original):

Senators on a key Judiciary subcommittee are set to hold a hearing on marijuana reform on Tuesday — and the witnesses include former federal cannabis prisoner Weldon Angelos and anti-marijuana proselytizer Alex Berenson.

The Judiciary Subcommittee on Criminal Justice and Counterterrorism, chaired by Sen. Cory Booker (D-NJ), has five witnesses scheduled to testify, according to a list obtained by Marijuana Moment.  The list has not been formally announced by the panel yet, and representatives of the chair and ranking member did not immediately respond to emails from Marijuana Moment.

Here’s the list of witnesses for the hearing, titled “Decriminalizing Cannabis at the Federal Level: Necessary Steps to Address Past Harms.”

MAJORITY WITNESSES:

Malik Burnett, a pro-legalization physician who formerly worked for the Drug Policy Alliance (DPA) and previously testified in favor of reform before the U.S. House of Representatives. He currently serves as the medical director of harm reduction services at the Maryland Department of Health.

Weldon Angelos, a former federal marijuana prisoner who received a presidential pardon under the Trump administration and has continued to push for clemency for other people with federal cannabis convictions through his organization The Weldon Project.

Edward Jackson, chief of police at the Annapolis Police Department and a speaker at the pro-reform group Law Enforcement Action Partnership (LEAP).

MINORITY WITNESSES:

Steve Cook, former federal prosecutor who previously served as president of the National Association of Assistant United States Attorneys. Known as a drug warrior who supports taking a carceral approach in criminal justice, Cook was appointed by then-Attorney General Jeff Sessions to work in DOJ as associate deputy attorney general and led a marijuana review panel for the department ahead of the Trump administration’s rescission of Obama-era cannabis enforcement memos.

Alex Berenson, former New York Times reporter who has faced ample criticism over his questionable research linking marijuana use to serious mental illness and violent crime, and who was at one point banned from Twitter for claims he made about COVID-19 vaccines.

The choice of witnesses offers a preview of the kind of debate that the majority and minority will take up at the hearing.  And the fact that Berenson was picked by Senate Republicans to go before the panel signals that there will be diametrically opposed perspectives represented at the meeting.  More specifically, it hints that there will be drama, as Berenson is not a person who’s known for subtlety and has became notorious on social media for offering contrarian takes on current events, particularly as they concern marijuana and COVID.

I share the view that having Alex Berenson as one of the witnesses here can and will add drama to this hearing, though I think all of the scheduled witnesses could be described as "headliners."  I am hopeful we will get some written statements from these witnesses before the actual hearing, and it will be interesting to see how both questions and answered are presented at the live event.  Interesting times.

July 25, 2022 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Reviewing another round of great new Inquest essays

I have been making a habit of spotlighting some of the many great pieces regularly posted at Inquest (see recent prior posts here and here and here).  Inquest, "a decarceral brainstorm," keeps churning out lots of new must-read essays, and I continue to struggle to keep up with all the great content.  Here are some recent pieces worth checking out:

By Erin Collins, "The Evidence-Based Trap: Data-driven approaches to reform can reinforce aspects of a system that’s rotten to the core."

By Dan Berger, "Changing Everything: Beyond electing progressive prosecutors, decarceration requires an ambitious, multifaceted struggle at all levels of governance."

By Nebil Husayn, "Juneteenth and Black Liberation: Our government's history of oppression compels us to free those Black revolutionaries aging in our prisons."

By Jessica T. Simes & Jaquelyn L. Jahn, "Policing Health: The impact of Medicaid expansion suggests that keeping people healthy also keeps them from the reach of the criminal legal system."

July 25, 2022 in Recommended reading, Who Sentences | Permalink | Comments (1)

Saturday, July 23, 2022

Notable debate over access to sentencing data as Ohio builds out new sentencing data platform

In a few posts over the last few years (linked below), I have flagged the work of some Ohio jurists and others in the development of a statewide sentencing database.  I have had the honor of playing a small role in this work, and I have found fascinating many of the challenges and debates surrounding efforts to build out the Ohio Sentencing Data Platform.  One big lurking issue all along is now spotlighted by this new local article headlined "Statewide judges’ group wants sentencing data collected under proposed database kept secret."  Here are the excerpts from a lengthy article worth reading in full: 

A group that represents Ohio’s common pleas court judges does not want the public to see data that would be collected under a proposed statewide sentencing database for fears it could be cherry-picked and lead to criticism of the courts.  The head of the Ohio Common Pleas Judges’ Association wrote in a letter to the Ohio Supreme Court’s sentencing commission last month that judges recognize the value in the creation of a database for their own use.

Judges, however, are concerned that attorneys, journalists and other organizations could selectively pull data from the database to use “as a basis to critique imposed sentences and advocate for an overhaul to Ohio’s sentencing statutes.”  “In short, the OCPJA has significant concerns that broad public accessibility to the data would negatively impact the independence of the judiciary and interfere with its discretion in sentencing decisions,” the group’s president, Morrow County Common Pleas Court Robert Hickson, wrote.

The letter urged the seven justices to scrap proposed changes to the rules of superintendence that govern the state’s courts.  That would allow the court to run the project through the sentencing commission and come up with new proposals. In the alternative, state lawmakers should pass legislation mandating the data be exempt from Ohio’s public record laws, the letter said.... Hickson wrote that the letter represents the “unanimous position” of the group’s board.  Cuyahoga County Common Pleas Court Administrative Judge Brendan Sheehan is the group’s first vice president....

Sheehan’s colleague on the bench and predecessor as administrative judge wrote a letter of his own to the Ohio Supreme Court justices in which he said the views of the state judges’ group “cannot be farther from my own.” “In my opinion, the fears and skepticism expressed in the OCPJA letter are unfounded,” Judge John J. Russo wrote.  Russo, who was elected in 2006 and served as administrative judge from 2014 to 2020, told cleveland.com and The Plain Dealer that keeping the data secret and available only to the judges was akin to creating a “secret club” and would only harm the public’s confidence in the justice system more than making it public....

Russo also said that the letter by the judges’ group does not reflect the stance of the majority of the Cuyahoga County Common Pleas Court.  The Ohio Public Defender’s Office, Ohio Bar Association, Black Lives Matter and Common Cause Ohio all urged the commission to make the data available to the public.

The leader of the Ohio Prosecuting Attorney Association expressed a similar concern that the data would not paint a complete picture of all of the factors that go into each sentencing decision, and it would be open to manipulation.  While the group stopped short of calling for the data to remain hidden from the public, it did challenge that the legislature would have to create the commission, rather than the court.

The letters are in response to the Ohio Supreme Court’s sentencing commission’s call for public comment on proposed rule changes that would create a uniform sentencing entry, a lengthy document that judges would fill out after each sentencing hearing that articulates why judges imposed each sentence.  Each county’s common pleas court uses its own system to document the sentences judges there hand down, and they vary widely.  Some courts in small, rural counties still use handwritten sentencing documents, the Supreme Court said in a 2021 article published in the court’s news letter.

The commission would take data from the document and enter it into a database kept by the court that would give those who can access it the ability to see what the average sentence each person convicted of a particular crime received in each county’s common pleas court.  The sentencing commission hopes that creating a central database for the entire state that is populated by a single, uniform document that each judge fills out will make it easier for the Ohio Department of Rehabilitation and Correction.  It would allow the prison system to keep track of the sentences each inmate is serving and prevent trial court judges from committing errors during sentencing that appellate courts would later overturn....

Ohio Supreme Court Justice Michael Donnelly, a former judge in Cuyahoga County who served on the bench alongside Sheehan and Russo, told cleveland.com and The Plain Dealer that the database will help judges make sure they’re doling out similar sentences.  “That’s not just a good idea. That’s what the law mandates now,” Donnelly said. “It’s just that, how do you do that with the lack of information and the lack of data that we have?”

Donnelly also said that the public has a right to know how their courts are operating and that he believes the data should be made public. “We all serve at the pleasure of the public,” Donnelly said of judges in state court. “Everything else about our decisions is reviewable. Why should the most important decision we make as judges, whether to incarcerate someone, be any different than any other decision we make in this system of checks and balances?”

Prior related posts:

 

UPDATE:  Cleveland.com has published this notable new opinion piece authored by Judge Ronald B. Adrine under the headline "Ohio’s Black judges support public release of criminal-sentencing database information." Here are excerpts:

The Ohio Black Judges Association Inc. (OBJA) voices its strong support for the Supreme Court of Ohio’s plan to allow public access to a proposed criminal sentencing database compiled by, among other things, race, as referenced in a recent article which appeared in The Plain Dealer.  Regrettably, our support puts us at odds with the Ohio Common Pleas Judges Association, which opposes public access to the database....

Our members across the state are acutely aware of the fact that the lack of data impedes legitimate inquiry into the degree to which racial justice is, or is not, a reality in Ohio.  At minimum, the existence of an open-access criminal sentencing database will sensitize all judges who make sentencing decisions to the potential for implicit bias, where it exists, and to reassure them of their positive practices, where it does not!

The position taken by the Common Pleas Judges Association calls for worst-case speculation concerning the occasional misuse of the database, while overlooking the overwhelming benefits to be realized in the majority of situations where the database is accessed.  Aggressively promoting viable efforts to increase the public’s confidence in our courts and to seek justice system accountability for all are OBJA’s primary motivators for supporting public access to the database.

We would like to assume that the vast majority of the members of the Ohio Common Pleas Judges Association have nothing to fear from public access to their sentencing practices.  If that assumption is incorrect, then the case for creating and maintaining the database is made even stronger.

There may be legitimate reasons for racial or other disparities that have nothing to do with bias.  If that is the case, having the database will assist in identifying them. By the same token, if the sentencing practices of individual judges suggest the need for practice adjustments, then that fact should be brought to the attention of those judges and the public should be able to monitor their progress in eliminating any explicit or implicit bias uncovered.

July 23, 2022 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Friday, July 22, 2022

Should "pardoned conduct" be part of Steve Bannon's sentencing after his convictions for contempt of Congress?

Regular readers know that I have long been troubled by the use of so-called "acquitted conduct" in federal sentencing, but today's news of Steve Bannon's conviction on two federal criminal charges brings an interesting twist on what conduct a federal judge should or should not consider at sentencing.  First, here are the basic's of Bannon's convictions and coming sentencing via NBC News:

A jury on Friday found former Donald Trump adviser Steve Bannon guilty on two counts of contempt of Congress for blowing off the Jan. 6 select committee.

Bannon's sentencing is scheduled for Oct. 21 when he will face a mandatory minimum prison sentence of 30 days and up to one year behind bars. He could also be fined $100 to $100,000. He is expected to appeal....

Judge Carl Nichols repeatedly refused to delay Bannon's trial despite the defense team's contention that publicity from the Jan. 6 committee hearings would affect the jury pool and their contention that Bannon was barred from testifying due to Trump's purported claims of executive privilege.  A jury was seated on Tuesday morning.

Second, here is the full text (with sentencing terms) of the federal statute, 2 USC § 192, which served as the foundation for Bannon's convictions:

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.

Third, recall that Bannon was indicted by federal prosecutors back in August 2020 on fraud and money laundering charges, but Prez Trump pardoned Bannon on this last day in office before the case had moved significantly forward.  This Washington Post article made note of notable comments by the federal judge who dismissed the charges following the pardon:  

A federal judge on Monday formally dismissed the fraud case against Stephen K. Bannon, the conservative provocateur and ex-adviser to President Donald Trump, ending months of litigation over how the court system should handle his pardon while related criminal cases remain unresolved.

U.S. District Judge Analisa Torres, citing examples of other cases being dismissed following a presidential reprieve, granted Bannon’s application — saying in a seven-page ruling that Trump’s pardon was valid and that “dismissal of the Indictment is the proper course.”...

In her decision Tuesday, the judge pointed to past judicial discussions on pardons and what they imply about individuals who receive one.  She quoted from a New Jersey court that, in 1833, found that “pardon implies guilt.”

“If there be no guilt, there is no ground for forgiveness. … A party is acquitted on the ground of innocence; he is pardoned through favor,” it says, according to Torres’s ruling.

Putting all these pieces together leads me to the question in the title of this post, namely whether folks think it would be proper (perhaps even obligatory) for Judge Carl Nichols to consider and give significant attention to the prior (and now pardoned) allegations of fraud involving Bannon. 

Of course, 18 USC § 3553(a)(1), calls upon a court at sentencing to consider "the nature and circumstances of the offense and the history and characteristics of the defendant."  The past (alleged and pardoned) fraud conduct certain has part of Bannon's history and characteristics, and a pardon is arguably the antithesis of an exoneration and does not undercut historic jury trial rights like the use of acquitted conduct at sentencing.  Nevertheless, because I think better practice for all purposes is for pardons to be honored and respected through a complete wiping away of all criminal justice sanctions and consequences, I am inclined to want Judge Nichols to not give attention to "pardoned conduct."

July 22, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Victim's family opposing death sentence as Alabama prepares for execution next week

I have long hoped (but have never been confident) that the application of the death penalty can bring some measure of catharsis and closure to family members and other victims of a murder.  For example, as recently mentioned in this post, it seems many victims of the Parkland school shooter are quite eager to see the capital sentencing process move forward.  But, as this local article from Alabama reveals, in some cases the death penalty advances against the wishes of a murder victim’s family.  Here are the details:

Toni and Terryln Hall were just three and six years old when their mother, Faith Hall, was shot to death by Joe Nathan James, Jr., in August 1994. James, who’d dated Hall, was eventually convicted of her murder and sentenced to death.

Now, nearly three decades later, the State of Alabama has scheduled the execution of Joe Nathan James, Jr. for July 28.  But Toni and Terryln Hall, as well as Faith’s brother Helvetius, said they’re opposed to James being put to death. The planned execution has unnecessarily reopened old wounds, the family said, and won’t bring them closure.  James’ death is yet another trauma for all involved, and Gov. Kay Ivey should halt the execution, they said.  Forgiveness should prevail, the family argued, not vengeance....

Each member of the Hall family said their feelings towards James have evolved over time.  Helvetius said that if he’d seen Joe Nathan James the night he murdered Faith Hall, he may have killed him.  “But God was in me,” he said. “And I thank him for it.”

Toni and Terryln both said that for a while, they hated Joe Nathan James.  Toni said that what happened to her mother has impacted her life in ways seen and unseen. James’ actions have had “trickle-down effects,” she said, effects that she’s still trying to cope with today.  She’s more guarded when it comes to intimate relationships.  She’s careful about whom she lets around her children, ages two and four. “It made me hate him,” Toni said.

“For years, I hated him, too,” Terryln added. “But as I got older and started living my life and raising my own kids, I had to find it in my heart to forgive this man.”  And she did forgive him. So did Toni and Helvetius. “I forgive him,” Terryln said. “But I’ll never forget what he did to us.” Toni echoed her sister. “I couldn’t walk around with hate in my heart,” she said.

In the days leading up to Joe Nathan James’ scheduled execution, the Hall family said they feel as though an old wound has been ripped open.  “It’s really bothering me,” Toni said. “To know that someone is going to lose their life.”

The Halls said they are opposed to Alabama executing Joe Nathan James for the murder of Faith Hall.  Toni said she’s even expressed to prosecutors in the case that the family does not want the death penalty carried out against James. “We shouldn’t be playing God,” Toni said. “An eye for an eye has never been a good outlook for life.”

“At the end of the day,” Terryln said, “I feel like no human has to power to kill anyone whether they’re right or wrong.” She said it took her time to come to that conclusion, but she believes it’s the right one.  “I had to look within myself,” she said. “Who am I to judge?”

The Halls said they believe that Faith would not have wanted James executed. “She would’ve forgiven him,” Helvetius said.

The Halls said they plan to travel to Holman Correctional Facility on the evening of the scheduled execution to witness James’ last words.  They said they hope James apologizes for his actions, but that they’ll exit the witness room before the execution takes place either way. “It ain’t going to make no closure for us,” Helvetius said of the execution.

The family said they want Joe Nathan James to know that they do not hate him. If she had the opportunity to speak with James, Toni Hall said she’d make that point clear: “I don’t want you to feel like children grew up hating you,” she said. “And I wish this wasn’t happening to you now.”...

The Halls said that they believe Alabama Gov. Kay Ivey should step in and commute James’ death sentence to life in prison.  They believe their views should hold weight in deciding whether to execute James, although they admit they feel powerless in the situation. “I don’t want it to go forward,” Terryln said. “We’re not God. The Governor is not God.”

James’ blood will not be on their hands, the family said, but on the hands of the state, the governor, and lawmakers who enacted the death penalty. Still, James’ execution will be another trauma for a family that’s already lost so much, they said. “I’ll see him at nighttime when I sleep,” Helvetius said of James. “I don’t need that.”

July 22, 2022 in Death Penalty Reforms, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (9)

Thursday, July 21, 2022

Spotlighting legal fight over revocation of CARES Act releases to home confinement

USA Today has this lengthy article discussing the revocation of home confinement for hundreds of persons released under the CARES Act. The piece is headlined "They were released from prison because of COVID. Their freedom didn't last long." Here are excerpts:

[Eva] Cardoza and two other women are at the center of federal lawsuits saying that people released from prison because of COVID-19 are now being sent back over minor infractions, such as not picking up a call from staffers overseeing their home confinement. The lawsuits come as the Bureau of Prisons is facing scrutiny for re-incarcerating people in home confinement over minor offenses, even as the agency has increasingly relied on the program to help reduce recidivism and prison populations....

During the pandemic, Cardoza was one of more than 43,000 people nationwide who were released from prison to home confinement during the COVID-19 pandemic. The BOP website said around 50,000 people incarcerated at its facilities had recovered from coronavirus and around 300 had died.

The massive CARES ACT granted then-Attorney General Bill Barr the option to broaden the use of the home confinement program, which had previously only been allowed to be used at the very end of a person's sentence. Barr opted to allow thousands of people to receive home confinement much earlier, shaving off years from a person's sentence in some cases....

Last year, more than 3,000 people were released to CARES ACT home confinement, according to a records request put in by the Prison Policy Initiative, a nonpartisan public think tank.

Those who were released to home confinement were told they must follow specific rules. They have to keep re-entry professionals — specialists who are often working for companies contracted by the BOP — updated on their whereabouts. They often wear electronic monitoring and receive special permission to visit stores or other locations. They can go to work or school. But if someone on home confinement was found to have an infraction, such as missing a check-in or a failed drug test, they could be returned to prison.

The Bureau of Prisons told USA TODAY that 407 people had their home confinement revoked. Of those, 212 were returned due to misconduct in violation of program rules, such as alcohol use and drug use; 69 were returned after an escape, such as an unauthorized absence from custody; and 11 were for new criminal conduct and other violations.

The Bureau of Prison's Inmate Discipline Program requires several steps before returning a person in home confinement to prison, including a disciplinary hearing, written notice of the allegations and the ability to present evidence. The BOP told USA TODAY its Administrative Remedy Program allows people to have "any issue related to their incarceration formally reviewed by high-level" officials.

But lawyers involved in the lawsuits said their clients did not have hearings, written notice or the ability to present evidence. They said their pleas for review were ignored and noted that the cumbersome, months-long process can lead to collateral damage, such as a child going back into foster care while the parent is in prison.

July 21, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

One officer involved in George Floyd's killing sentenced to 30 months on federal charges

As reported in this AP article, a "federal judge sentenced former Minneapolis police Officer Thomas Lane to 2 1/2 years in prison Thursday for violating George Floyd’s civil rights, calling Lane’s role in the restraint that killed Floyd 'a very serious offense in which a life was lost' but handing down a sentence well below what prosecutors and Floyd’s family sought." Here is more:

Judge Paul Magnuson’s sentence was just slightly more than the 27 months that Lane’s attorney had requested, while prosecutors had asked for at least 5 1/4 years in prison — the low end of federal guidelines for the charge Lane was convicted on earlier this year.  He said Lane, who faces sentencing in September on state charges in Floyd’s killing, will remain free on bond until he must turn himself Oct. 4.

Lane, who is white, held Floyd’s legs as Officer Derek Chauvin pinned Floyd for nearly 9 1/2 minutes on May 25, 2020. Bystander video of Floyd, who was Black, pleading that he could not breathe sparked protests in Minneapolis and around the world in a reckoning over racial injustice over policing. Two other officers, J. Alexander Kueng and Tou Thao, were also convicted of violating Floyd’s civil rights and will be sentenced later.

Floyd family members had asked Magnuson to give Lane the stiffest sentence possible, with brother Philonise Floyd rejecting the idea that Lane deserved any mercy for asking his colleagues twice if George Floyd should be shifted from his stomach to his side. “Officer Lane did not intervene in one way or another,” he said.

Prosecutor Manda Sertich had also argued for a higher sentence, saying that Lane “chose not to act” when he could have saved a life. “There has to be a line where blindly following a senior officer’s lead, even for a rookie officer, is not acceptable,” she said.

Magnuson told Lane the “fact that you did not get up and remove Mr. Chauvin when Mr. Floyd became unconscious is a violation of the law.” But he also held up 145 letters he said he had received supporting Lane, saying he had never received so many on behalf of a defendant. And he faulted the Minneapolis Police Department for sending Lane with another rookie officer on the call that ended in Floyd’s death.

Gray argued during the trial that Lane “did everything he could possibly do to help George Floyd.” He pointed out that Lane suggested rolling Floyd on his side so he could breathe, but was rebuffed twice by Chauvin. He also noted that Lane performed CPR to try to revive Floyd after the ambulance arrived. Lane testified at trial that he didn’t realize how dire Floyd’s condition was until paramedics turned him over. Sertich countered that his expressions of concern showed he knew Floyd was in distress but “did nothing to give Mr. Floyd the medical aid he knew Mr. Floyd so desperately needed.”

When Lane pleaded guilty in state court in May, Gray said Lane hoped to avoid a long sentence. “He has a newborn baby and did not want to risk not being part of the child’s life,” he said.

July 21, 2022 in Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Via voice vote (with some objections), Senate Judiciary Committee advances entire slate of US Sentencing Commission nominees

The US Senate Committee on the Judiciary today held a meeting (which can be watched here) to consider the nominees by President Biden to the US Sentencing Commission (and other nominees). The entire slate of nominees were voted forward to consideration by the full Senate by a single voice vote, though a group of GOP Senators noted objections to all four of the Democratic nominees to the Commission and a couple of Democratic Senators noted objections to a couple of the GOP nominees.

After the vote, I received an email from FAMM with this reaction to this encouraging news:

FAMM President Kevin Ring issued the following statement after the U.S. Senate Judiciary Committee today voted to advance President Biden’s seven nominations to serve on the U.S. Sentencing Commission: “It’s been three years since the U.S. Sentencing Commission has met due to a lack of a quorum,” said Ring. “Thanks to today’s vote, we are one step closer to the Commission being able to work on pressing issues such as implementing the First Step Act. FAMM calls on the full Senate to confirm this slate of nominees as soon as possible.”

A few of many prior recent related posts:

July 21, 2022 in Who Sentences | Permalink | Comments (0)

Tuesday, July 19, 2022

Might Prez Biden wisely focus on marijuana offenders for his next clemency efforts?

It has now been almost a full three months since, as noted here, Prez Biden in April 2022 made his first and only use of his historic clemency powers.   Though I was disappointed that it took Prez Biden 15+ months in office before using his clemency pen, I was hopeful the large number of grants (three pardons and 75 commutations) might be a sign of things to come.  But now, three months later, I am fearful that Prez Biden will continue to fail to live up to his campaign promise to "broadly use his clemency power for certain non-violent and drug crimes."

Still, as the question in the title of this post is meant to suggest, there would seem to be a unique opportunity for Prez Biden to focus clemency efforts on a particular group of individuals convicted of "non-violent and drug crimes," namely marijuana offenders.  This group is on my mind in part because of this recent press release which highlights the "the ongoing collaboration between The Weldon Project, National Cannabis Roundtable and other partners to secure clemency for individuals convicted on federal marijuana offenses."  Here is the start of the release:

The Weldon Project’s MISSION [GREEN] and The National Cannabis Roundtable (NCR) today announced the launch of the Cannabis Clemency Campaign, an initiative that will encourage the Biden Administration and Congress to advance policies that would grant clemency to qualifying individuals who have been convicted on federal cannabis charges. The campaign will also facilitate collaboration with marijuana clemency experts and academics, kicking off with a marijuana clemency symposium in Washington, D.C. on July 20th.

“Through clemency, President Biden has an opportunity to deliver justice for the thousands of Americans who have been impacted by federal cannabis prohibition and punitive sentencing practices,” said Weldon Angelos, President and co-founder of The Weldon Project. “This would fulfill one of President Biden’s campaign pledges and send a powerful message about this Administration’s dedication to criminal justice reform. I’m proud to formally launch this campaign alongside the National Cannabis Roundtable, and look forward to working together to redress the harm done by federal marijuana prohibition.”

I have the great honor of participating in the symposium mentioned in this release, and I am hopeful that it will help Prez Biden come to see that it is never too late and always the right time for sound use of his clemency powers. 

A few on many prior related posts:

July 19, 2022 in Clemency and Pardons, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, July 17, 2022

What is the price (for victims and taxpayers) of a four-month(!) capital trial for Parkland mass murderer Nikolas Cruz?

The question in the title of this post is my (crass?) reaction to the news that the penalty-only capital trial of Nikolas Cruz is scheduled to formally get started this week.  This AP piece, headlined "Life or death for Parkland shooter?  Trial will take months," provides lots of background.  Here are some excerpts:

Four years, five months and four days after Nikolas Cruz murdered 17 at Parkland’s Marjory Stoneman Douglas High School, his trial for the deadliest U.S. mass shooting to reach a jury begins Monday with opening statements.  Delayed by the COVID-19 pandemic and legal wrangling, the penalty-only trial is expected to last four months with the seven-man, five-woman jury being exposed to horrific evidence throughout.  The jurors will then decide whether Cruz, 23, is sentenced to death or life without the possibility of parole.

“Finally,” said Lori Alhadeff, who wants Cruz executed for murdering her 14-year-old daughter Alyssa. “I hope for swift action to hold him responsible.”  All victim parents and family members who have spoken publicly have said directly or indirectly they want Cruz sentenced to death.

The former Stoneman Douglas student pleaded guilty in October to the Feb. 14, 2018, massacre and is only challenging his sentence. Nine other U.S. gunmen who fatally shot at least 17 people died during or immediately after their attacks by suicide or police gunfire.  Cruz was captured after he fled the school.  The suspect in the 2019 killing of 23 at an El Paso, Texas, Walmart is awaiting trial.

Lead prosecutor Mike Satz will give his side’s presentation.... Craig Trocino, a University of Miami law professor, said Satz will likely emphasize the shooting’s brutality and the story of each victim lost. The prosecution’s theme throughout the trial will be, “If any case deserves a death sentence, this is it,” he said....

Trocino said ... Cruz’s attorneys will likely want to plant the seed in jurors’ minds that he is a young adult with lifelong emotional and psychological problems. The goal would be to temper the jurors’ emotions as the prosecution presents grisly videos and photos of the shootings and their aftermath, the painful testimony of the surviving wounded and tearful statements from victims’ family members....

Satz’s team will be required to prove beyond a reasonable doubt that Cruz committed at least one aggravating circumstance specified under Florida law, but that should not be an issue.  Those include murders that were especially heinous or cruel; committed in a cold, calculated and premeditated manner; or committed during an act that created a great risk of death to many persons. Cruz’s team can raise several mitigating factors that are also in the law.  Before the shooting, Cruz had no criminal history.  The attorneys can argue he was under extreme mental or emotional disturbance, and his capacity to appreciate his conduct’s criminality or conform it to the law was substantially impaired....

For each death sentence, the jury must be unanimous or the sentence for that victim is life.  The jurors are told that to vote for death, the prosecution’s aggravating circumstances for that victim must, in their judgement, “outweigh” the defense’s mitigators.  A juror can also vote for life out of mercy for Cruz.  During jury selection, the panelists said under oath that they are capable of voting for either sentence.

It is possible Cruz could get death for some victims and life for others, particularly since he walked back to some wounded victims and killed them with a second volley. That might swing any hesitant jurors on those counts. “The prosecution only needs for the jury to come back (for death) on one,” Trocino said.

There is always much to say about the unique dynamics of capital trials, but I must flag here the remarkable contrast between capital and non-capital sentencing procedures.  Though guilt is not disputed in any way with respect to Nikolas Cruz's 17 murders, he can receive a death sentence only if all 12 jurors unanimously decide he should be executed for his crimes.  Contrast that jury-centric process to the non-capital case flagged in this recent post involving a federal defendant who was acquitted of a murder by 12 jurors and yet still had a lone judge sentence him based on the judge's view that he did the killing.  Cruz's case is but one of many examples of the very worst of murderers getting the very best legal protections because we require "super due process" for the imposition of the death penalty even when there is no shred of doubt about guilt.

Notably, in this post 3.5 years ago on the one-year anniversary of the Parkland shooting, I expressed my hope that "someone is keeping track of what this prosecution is costing the taxpayers of the state of Florida."   As I sometimes mention in this space, I view the extraordinary expense of many capital cases (with their super due process) to be a notable argument against the death penalty since it rarely seems the penalty's (debatable) benefits measure up to its (considerable) economic costs.  I can only imagine the taxpayer resources involved in a trial for which jury selection took three months and which is already forecast to last nearly the rest of this year.  Parkland victims are sure also to pay an emotional price as they endure an agonizing trial experience sure to be heavily covered by local and national media.

That said, the AP article asserts that all "victim parents and family members who have spoken publicly have said directly or indirectly they want Cruz sentenced to death."  I sincerely hope all these victims get some measure of satisfaction or catharsis from this particular capital trial.  Sadly, it seems awfully unlikely that this trial will lead to, in the words of one victim, "swift action to hold him responsible."  With nearly 5 years needed to even get to a trial verdict, there are surely years (if not decades) of appeals to follow if Cruz is sentenced to death.  

Some prior related posts:

July 17, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Saturday, July 16, 2022

Feds seeking (above-guideline) sentence of 15 years for first Jan 6 defendant to be sentenced after trial convictions

Based on a recent AP accounting of the January 6 riot cases, I believe there have already been around 200 defendants sentenced for their activities related to the Capitol riot, but all of those sentences have been handed down after guilty pleas.  As detailed in this Insider article, federal prosecutors are seeking a particularly severe sentence for the first rioter due to be sentenced following a conviction at trial.  Here are the basics:

Guy Reffitt, the first Capitol rioter convicted at trial on charges stemming from the January 6, 2021 insurrection, should receive a 15-year prison sentence for his "central role" in leading a pro-Trump mob that clashed with police protecting Congress, federal prosecutors said in a court filing Friday.

A jury in Washington, DC, needed just hours in early March to find Reffitt guilty on all five charges he faced in connection with the Capitol attack, including obstruction of an official proceeding. Reffitt, of Texas, was also found guilty of entering restricted Capitol grounds with a handgun and with later threatening his children to keep them from reporting him to law enforcement.

In a 58-page court filing, federal prosecutors argued that Reffitt played a pivotal role in "overwhelming officers and showing the mob the way forward at the outset of the riot." The language echoed their description of Reffitt at his weeklong trial, where prosecutors called Reffitt the "tip of this mob's spear" and played video footage of him ascending stairs up to the Capitol in tactical gear, with fellow members of the pro-Trump mob following him.

If ordered, the 15-year sentence would go down as the longest prison term given to a Capitol rioter to date, nearly tripling the more than 5-year sentence Robert Scott Palmer received after throwing a fire extinguisher at police during the January 6 attack. Judge Dabney Friedrich, a Trump appointee confirmed in 2017, is set to sentence Reffitt on August 1....

In a separate court filing Friday, Reffitt's defense lawyer argued that he should receive a sentence of no longer than 2 years in prison. His lawyer, F. Clinton Broden, noted that Reffitt never entered the Capitol.

The Government's lengthy sentencing memorandum is available at this link, and it begins this way:

For Defendant Guy Reffitt’s central role in leading a mob that attacked the United States Capitol while our elected representatives met in a solemn Joint Session of Congress — including his intention to use his gun and police-style flexicuffs to forcibly drag legislators out of the building and take over Congress, and his later threats to harm his children if they turned him into the FBI — the government respectfully requests that this Court sentence him to 15 years of incarceration.

The Court should depart upwards from the PSR’s Sentencing Guidelines range of 9 to 11.25 years (108 to 135 months)2 of incarceration both because Reffitt’s crime “was calculated to influence or affect the conduct of government by intimidation or coercion,” U.S.S.G. § 3A1.4, cmt. n.4, and because the Guidelines’ grouping analysis provides “inadequate scope” for Reffitt’s possession of multiple weapons in the commission of his offenses, see U.S.S.G. § 3D1.4, bkgd. cmt. (upward departure based on grouping); § 5K2.6 (upward departure based on use of weapons).

The defense's sentencing memorandum is available at this link, stresses to the court the "need to avoid sentencing disparities" and it contends that "most if not all defendants who received a sentence of greater than 24 months imprisonment are at a whole different level than Mr. Reffitt."  It concludes this way:

Based upon the foregoing, Undersigned Counsel respectfully suggests that a sentence of no more than 24 months imprisonment is, in fact, sufficient but not greater than necessary to comply with the purposes of 18 U.S.C. § 3553.

Some of many prior related posts:

July 16, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (21)

Friday, July 15, 2022

New issue brief urges prosecutors to stop pursuing drug-induced homicide charges

The group Fair and Just Prosecution, which brings together and focuses on the work of elected local prosecutors, has this notable new issue brief titled simply "Drug-Induced Homicide Prosecutions." Here is "Summary" found at the start of the 12-page document:

This is one of a series of FJP’s “Issues at a Glance” briefs addressing strategies for improving responses to overdose deaths and incorporating harm reduction approaches into prosecutors’ work.  As prosecutors face the tragedy of rising overdose deaths in their communities, this series of briefs urges them to embrace interventions grounded in the philosophy of harm reduction.  This brief focuses on drug-induced homicide prosecutions.  It describes why they are inherently problematic, while offering more effective, humane, and fiscally responsible alternatives.  It is intended as a guide for prosecutors who are grappling with how to respond effectively to an increased number of overdose deaths in their communities and seeking to do so with evidence-based and compassionate approaches.

“Drug-induced homicide” (DIH) prosecutions – the practice of charging individuals who supply drugs that result in a fatal overdose with homicide, even in the absence of specific intent to cause death — have dramatically increased in the wake of the overdose crisis.  While an estimated 28 individuals faced DIH prosecutions in 2007, close to 700 DIH cases were filed in 2018 based on media reports.  This brief outlines the evidence regarding DIH prosecutions, including their inefficacy in reducing overdoses, the proportionality and racial injustice concerns they raise, and their role in ultimately exacerbating the harms of the overdose crisis.  The brief recommends that prosecutors cease to seek DIH charges absent evidence of specific intent to kill, and delineates more effective approaches that have the potential to save lives.

July 15, 2022 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (10)

Thursday, July 14, 2022

Might SCOTUS finally be ready to take up acquitted conduct sentencing enhancements?

Long-time readers know I have long bemoaned the use of so-called "acquitted conduct" to enhance sentencing in the federal system.  My moans have sometimes found expression in amicus briefs in support of efforts to get the Supreme Court to take up this issue, and I surmise any number of defendants have brought this issue to SCOTUS in cert petitions over the last two decades.  But the Justices have persistently declined to take up this issue (though, back in the 2014 Jones case, Justice Scalia joined by Justices Ginsburg and Thomas dissented from the denial of cert on this topic). 

But hope springs eternal, and this month I had the pleasure of working with great lawyers at Squire Patton Boggs to file another amicus brief on this issue, this one in support of petitioner Dayonta McClinton.  I blogged here about McClinton's case after the Seventh Circuit affirmed his 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case.

I have a smidge of extra hopefulness for SCOTUS review this time because of the recent transition of Justices.  Justice Breyer, who always opposed the Apprendi/Blakely line of Sixth Amendment cases and always supported broad judicial fact-finding at sentencing, likely was never too keen on this issue.  But Justice Breyer is no longer considering cert petitions, and I am hopeful that his replacement, Justice Ketanji Brown Jackson, might be more inclined to vote for cert on this topic.  (In addition, Justice Kavanaugh expressed concerns about acquitted conduct when on the DC Circuit, and Justice Gorsuch has long expressed strong affinity for jury trial rights.)  And today brought an extra jolt of hopefulness because the Supreme Court officially requested that the Government respond to the cert petition after the Solicitor General had waived its right to file a response.

Because every cert petition is a long shot, I will still going to be keeping my expectations tempered.  But, I do feel fairly confident that the Justices will eventually take this issue up, so I hope they come to see that there is no time like the present.

A few recent of many, many, many prior related posts:

July 14, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (18)

Another REPOSTING: Call for commentary for Federal Sentencing Reporter issue to provide "Advice for a new U.S. Sentencing Commission"

With the topic so timely at a time of year when so much can get forgotten, I am eager to keep reminding everyone here about this call for papers from the Federal Sentencing Reporter:

Seeking Commentaries for Federal Sentencing Reporter's October Issue to provide “Advice for a new U.S. Sentencing Commission”

Last month, President Joseph Biden announced seven nominees for the U.S. Sentencing Commission, and in early June the Senate Judiciary Committee held a confirmation hearing for this full slate of nominees.  The Commission has lacked a quorum since 2019, which has prevented the agency from amending the US Sentencing Guidelines in any way. President Biden’s nominations, if the confirmation process continues to move forward this summer, should allow an all-new Commission to get to work on federal sentencing reform matters big and small.  The editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share “Advice for a new U.S. Sentencing Commission,” for publication in the October 2022 FSR issue.

FSR commentaries for this issue could tackle big structural issues (such as how the Commission might review and reassess the entire guidelines system), smaller statutory issues (such as how to respond to reforms Congress enacted in the FIRST STEP Act), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes advice from all perspectives, including lessons the Commission could learn from the states and other countries.  Everyone with an informed interest in federal sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with light use of citations in the form of endnotes.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).

Priority will be given to drafts submitted by July 25, 2022, and later submissions will be considered as space permits. Submissions should be sent electronically to berman.43 @ osu.edu with a clear indication of the author and the author’s professional affiliation.

July 14, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Wednesday, July 13, 2022

Some more coverage and commentary on what criminalization of abortion can and will mean 

In a few posts here and here not long after the Dobbs decision, I flagged some news pieces and some commentaries discussing how the overruling of Roe and the criminalization of abortion in some states might echo through our criminal justice system.  In recent days, have now seen a few more notable pieces further exploring what abortion criminalization could and will mean:

From The 19th, "Prosecutor explains what preparing for a future of post-Roe abortion cases might look like"

From Bloomberg Law, "Progressives Look to Pardon Power as Abortion Access Fix"

From CNN, "Michigan governor signs executive order to protect abortion providers and patients from extradition"

From Mother Jones, "Why Progressive Prosecutors Won’t Save Us in a Post-Roe World"

From Slate, "Why Even Progressive Prosecutors Won’t Be Able to Keep Women Who Have Abortions Out of Jail"

From The Texan, "Texas Freedom Caucus Warns Law Firm of Criminal Liability for Covering Employees’ Abortion Costs"

From the Texas Observer, "Abortion Is (Again) A Criminal-Justice Issue

A few prior related posts:

July 13, 2022 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (10)

Some news and notes regarding new director of the federal Bureau of Prisons

As first noted in this prior post, Colette Peters, who has served as Director of the Oregon Department of Corrections for more than a decade, this week was selected to lead the federal Bureau of Prisons by Attorney General Merrick Garland.  The official announcement from DOJ is at this link, and it reports that she "will assume her duties on Tuesday, August 2."  The announcement prompted some notable press releases and coverage.  For example:

From a press release from Senate Dick Durbin's office, this quote from Senator Durbin:

It’s no secret that BOP has been plagued by misconduct.  One investigation after another has revealed a culture of abuse, mismanagement, corruption, torture, and death that reaches to the highest levels.  In light of those reports, I called for former BOP Director Michael Carvajal’s resignation last November.  So it was welcome news when six weeks later, he announced his resignation.  I am hopeful that with Colette Peters, Attorney General Garland and Deputy Attorney General Monaco have chosen the right leader to clear out the bureaucratic rot and reform BOP.  It is a tall order, and I look forward to working with Ms. Peters to help her succeed in this new role.

From a press release from FAMM, this quote from FAMM President Kevin Ring:

Colette Peters is walking into a dumpster fire. From sexual violence and medical neglect to understaffing and years-long lockdowns, the BOP’s leadership has allowed a humanitarian crisis to develop on its watch. Families with incarcerated loved ones have been begging for change. During Caravajal’s tenure, the BOP has been a black box. When COVID began spreading in federal prisons and families’ fears were at their greatest, Carvajal and the BOP somehow became less transparent. The BOP’s opaqueness felt like cruelty. We hope the incoming secretary is prepared to make significant changes to a system badly in need of them.

The most thorough reporting I have seen regarding Peters' professional track record comes from this entry at Chris Geidner's substack LawDork.  I recommend the full entry, and here is a portion (with links from the original):

DOJ pointed to ODOC’s development of the “Oregon Way” under her leadership.  As ODOC describes it, the goal of the “Oregon Way” is to “improve employee health and wellness, and reduce the use of segregation, by transforming environments inside correctional facilities to be more normal and humane.”

Bobbin Singh, the executive director of the Oregon Justice Resource Center, however, expressed significant concerns about the appointment given his experience with her work in Oregon — including in ongoing litigation.

“This appointment is an insult to all those incarcerated in Oregon who are fighting for their civil rights and dignity,” Singh told Law Dork on Tuesday.

Less than a month ago, his organization sent a new report to state lawmakers, detailing ongoing problems in the department. In the letter to lawmakers accompanying the report, which was provided to Law Dork, Singh wrote, “Despite a cascade of evidence revealing serious issues within the department, ODOC continues to put forward a misleading narrative that either ignores the issues entirely, profoundly sanitizes the facts, or wrongly shifts blame and responsibility away from itself.”

July 13, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (3)

Tuesday, July 12, 2022

Amnesty International releases "The Power of Example: Whither the Biden Death Penalty Promise?"

Via this Death Penalty Information Center posting, I just saw that a few weeks ago Amnesty International issued this big new report, titled The Power of Example: Whither the Biden Death Penalty Promise?," which advocates for Prez Biden to fulfil his campaign pledge to work to "eliminate the death penalty."   Here are a few passages from the start of this 100+ page report:

Amnesty International opposes the death penalty in all cases without exception regardless of the nature or circumstances of the crime; questions of guilt, innocence, or other aspects of the case; or the method used by the state to carry out the execution....

Amnesty International submits that the 50th anniversary of Furman is an opportune moment for the US administration and members of Congress to be reminded that the world is waiting for the USA to do what almost 100 countries have achieved during this past half century — total abolition of the death penalty.  Abolition of the federal death penalty would be consistent with US obligations under international human rights law.  It would bolster the position of those states in the USA that have already got rid of the death penalty or are moving towards doing so.  It would set a positive example to individual state governments that continue to use this cruel, unnecessary, and flawed policy, as well as to the diminishing list of retentionist countries....

This report, then, stems from Amnesty International's concern that the clock is running on the Biden pledge with little to show for it.  It is not a study of the federal death penalty as such or an examination of the cases of the more than 40 individuals currently on federal death row, or of those federal defendants facing death penalty trials.  The report revisits the six-month federal execution spree in a bid to jog the collective governmental memory of that shameful episode and to reboot the political commitment to abolition.  It also seeks to remind the US authorities of their general and specific obligations under international human rights law in relation to the death penalty, including as provided in the International Covenant on Civil and Political Rights (ICCPR).

July 12, 2022 in Death Penalty Reforms, Sentencing around the world, Who Sentences | Permalink | Comments (2)

Monday, July 11, 2022

Seventh Circuit panel refuses to reconsider its extra-textual limit on compassionate release in light of Supreme Court's Concepcion decision

In this post a few weeks ago, I highlighted key language from the Supreme Court's work in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here), that should help resolve a circuit split surrounding what factors can serve as the basis for compassionate release.  As explained in that post, I believe non-retroactive changes in sentencing law can potentially provide the basis for compassion release because nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction.  Though the Third, Sixth, Seventh and Eighth Circuits have held otherwise, language from Concepcion would seem to undercut extra-textual limits on sentencing or sentence-modification considerations.  Here is one of a number of passages from Concepcion stressing that all relevant sentencing information is to be part of all sentencing determinations unless expressly excluded by statute (with my emphasis added):

Federal courts historically have exercised this broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them.  That discretion also carries forward to later proceedings that may modify an original sentence.  Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence.

Disappointingly, it seems the first circuit panel to consider Concepcion expressly has decided to double-down on its extra-textual limit on what may be compassionate release considerations.  The Seventh Circuit today in a short opinion in US v. King, No. 21-3196 (7th Cir. July 11, 2022) (available here), refuses to engage with the key language of Concepcion but says this:

When deciding whether “extraordinary and compelling reasons”, 18 U.S.C. §3582(c)(1)(A)(i), justify a prisoner’s compassionate release, judges must not rely on non-retroactive statutory changes or new judicial decisions.  That’s the holding of United States v Thacker, 4 F.4th 569 (7th Cir. 2021).... There’s nothing “extraordinary” about new statutes or caselaw, or a contention that the sentencing judge erred in applying the Guidelines; these are the ordinary business of the legal system, and their consequences should be addressed by direct appeal or collateral review under 28 U.S.C. § 2255.

William King, who was sentenced to 216 months’ imprisonment following his guilty plea to three heroin charges, contends that Concepcion v. United States, No. 20–1650 (U.S. June 27, 2022), requires us to abandon these decisions and hold that anything at all — factual or legal, personal or systemic, routine or unique — may be treated as “extraordinary and compelling”.  That would be hard to reconcile with the language of the statute.  Routine is the opposite of extraordinary....

Concepcion ... held that, when substantive changes made by the First Step Act (principally reductions in the authorized ranges for crack-cocaine crimes) entitle a prisoner to be resentenced, the judge may consider everything that would have been pertinent at an original sentencing.  We may assume that the same would be true if a district judge were to vacate a sentence on application for compassionate release and hold a full resentencing proceeding. But decisions such as Thacker concern the threshold question: whether the prisoner is entitled to a reduction under § 3582(c)(1)(A)....

The First Step Act did not create or modify the “extraordinary and compelling reasons” threshold for eligibility; it just added prisoners to the list of persons who may file motions.  We take the Supreme Court at its word that Concepcion is about the matters that district judges may consider when they resentence defendants.  So understood, Concepcion is irrelevant to the threshold question whether any given prisoner has established an “extraordinary and compelling” reason for release.

As I have explained in prior posts, Congress via statute expressly stated that just one factor could never alone serve as the basis for sentence reduction under § 3582(c)(1)(a):  "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason." 28 USC § 994(t).  That textual exclusion reveals Congress can and did, through express statutory text, seek to exclude one and only one particular reason from alone serving as the basis for qualifying for a sentence reduction.  The expresio unius canon of construction — "the expression of one is the exclusion of others" — counsels that courts should not be inventing additional extra-textual categorical exclusions that Congress did not expressly state.  And Concepcion should serve as another reminder to circuit courts to stop inventing categorical limits on relevant considerations not set forth by Congress or the Constitution.

Of course, not every change in law could or should be considered “extraordinary and compelling” to provide the basis for compassionate release.   The alleged change in law cited by the defendant in King seems quite week, and I would not be so troubled if circuits were just indicating that they suspect only in rare cases might a change in law alone amount to an “extraordinary and compelling” reason.  But this new King decision reiterates the misguided notion that district judges are categorically excluded from ever considering "non-retroactive statutory changes or new judicial decisions" even though Concepcion stressed that the "only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution."  Sigh.

Prior recent related posts:

July 11, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Colette Peters selected to lead federal Bureau of Prisons

Government officials who run prison and jail systems at the local, state and federal level will often have a huge impact not only on the lives of incarcerated persons, but also on broader criminal justice realities. In the federal system, thanks especially to the FIRST STEP Act's emphasis on an array of new prison-focused reforms, the head of the Bureau of Prisons is now an especially important position. As this new New York Times article details, the BOP is about to have a new leader:

Colette S. Peters, the longtime director of the Oregon Department of Corrections, has been tapped to lead the chronically mismanaged and understaffed federal Bureau of Prisons, according to two people familiar with the decision.

The Justice Department, which oversees the bureau, is expected to announce her appointment this week, perhaps as early as Tuesday.  The bureau, a sprawling network of 122 facilities with an annual budget of around $10 billion, houses about 158,000 inmates.

The appointment comes after a long search to replace the current director, Michael Carvajal, who announced his intention to retire in January, under pressure from Senate Democrats who questioned his management.

Ms. Peters, who began her career as an administrator in Oregon’s juvenile justice system, rose to national prominence after instituting changes in the state’s 14-facility system to improve the health and treatment of its 15,000 inmates. She was considered the favored candidate for a job seen as one of the Justice Department’s most demanding and thankless assignments.

The federal prisons bureau has long been plagued by health and safety problems, physical and sexual abuse, corruption and turnover in the top management ranks.  Staffing issues, exacerbated by the pandemic, have resulted in a huge shortage of prison guards and health personnel, according to an investigation by The Associated Press last year, which uncovered a wide array of other shortcomings....

Under the Trump administration, the bureau was the subject of turf battles and ideological disagreements, even as the White House negotiated the bipartisan criminal justice legislation known as the First Step Act.  The measure was devised to reduce the size of the federal prison system and to provide lower-level offenders with greater access to alternatives to incarceration.

July 11, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Furman at 50: some recent notable coverage

As noted in this recent post, the US Supreme Court's remarkable death penalty opinion in Furman v. Georgia, 408 U.S. 238 (1972), is now a half century and I have not decided to create a series of "Furman at 50" posts.  Unsurprisingly, I am not the only one to note the Furman milestone, and here is a round-up of some recent coverage and commentary I have seen from various sources:

From the Dalton Daily Citizen, "50 years after SCOTUS ruled death penalty cruel and unusual, race factors heavily in executions"

From the Death Penalty Information Center, "DPIC Analysis Finds Prosecutorial Misconduct Implicated in More than 550 Death Penalty Reversals or Exonerations"

From The Marshall Project, "The Supreme Court Let The Death Penalty Flourish.  Now Americans are Ending It Themselves."

From Slate, "Fifty Years Ago, the Supreme Court Tried to Reduce Racial Bias in the Death Penalty. Did It Work?"

From UPI, "50 years after Furman ruling, death penalty may come down to states, experts say"

From The Washington Post, "Death penalty’s 50-year rise and fall since Supreme Court struck it down"

Related prior posts:

July 11, 2022 in Data on sentencing, Death Penalty Reforms, Race, Class, and Gender, Who Sentences | Permalink | Comments (5)

"FAMM challenges policymakers nationwide to #VisitAPrison"

FAMM, an advocacy organization which describes itself as promoting "fair and effective criminal justice policies that safely reduce incarceration, save taxpayer dollars, and keep families together," has launched today what is now an annual campaign that encourages local, state, and national policymakers to visit a prison or jail in their states or districts.  The title of this post is the subject line of an email I just received from the FAMM folks, and here is more its text:

“Laws are written for prisons and jails across the country and voted on by people who’ve never set foot inside them,” Ring said.  “This is such a simple step for policymakers to take, and anyone who visits will learn something by talking to the people who live and work in these facilities.  Our message is simple: You don’t know if you don’t go.”

Our nation’s prisons and jails are in crisis.  Staff shortages, poor healthcare, crumbling infrastructure, and other chronic problems have resulted in prisons that are unsafe to live and work in for prisoners and correctional officers alike. 

To assist in the effort, FAMM has mobilized families, advocates, allies, and public figures to share their stories via video using the #VisitAPrison hashtag and to challenge policymakers to educate themselves about the conditions of confinement in federal and state prisons and jails.

For more information, including a tracker of lawmakers who have visited a prison, visit FAMM.org/visitaprison.

I robustly endorse this effort to encourage lawmakers and other public officials.  Especially amid considerable political discourse about crime and punishment, I hope political candidates and voters will, in this significant election year, make efforts to advance and inform discussions regarding the goals and the realities of incarceration in America circa 2022.

UPDATE: The organization Fair and Just Prosecution today released this notable letter in support of the FAMM campaign which starts this way:

Today, 65 elected prosecutors pledged to personally visit the correctional facilities in which individuals prosecuted by their offices are placed and to require all prosecutors in their offices to do the same.  The signatories — who represent over 50 million people across 28 states and territories and the District of Columbia — emphasize that “it is vital for prosecutors to understand the true impact of their decisions and to see firsthand the jails, prisons, and juvenile facilities in their jurisdiction.”  The pledge is part of FAMM’s #VisitAPrison challenge, which encourages all state and federal policymakers to visit a prison or jail.

July 11, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (5)

Sunday, July 10, 2022

Some initial thoughts on some SCOTUS criminal justice work with OT21 now complete

The Supreme Court recently completed a truly historic Term, though the blockbuster cases were not on the criminal side of the docket. (That said, as noted in prior posts, the big rulings in Dobbs (reversing Roe) and Bruen (expanding the Second Amendment) will have many criminal justice echoes.)  Still, based on this helpful list from Crime & Consequences, about a third of the OT21 SCOTUS docket dealt with criminal justice issues, with many interesting and important stories to be found within these nearly two dozen cases.  Here are some initial thoughts on the criminal justice Term that was (with an eye on Terms to come):

1. Federal defendants who were not the Boston Marathon Bomber did quite well.  All the talk about SCOTUS being now so conservative does not reflect this Term's outcomes in federal statutory criminal cases.  Though Dzhokhar Tsarnaev had his federal death sentence reinstated and a few other federal defendants lost on procedural issues, a number of federal defendants prevailed on an array of statutory issues (see Concepcion, Ruan, Taylor, Wooden).  The considerable success of these federal defendants on various statutory claims is surely a function of selective certiorari grants, but it is still notable and a trend to watch.

2. State defendants pursuing federal habeas actions have real reason for real pessimism.  There were significant losses for state defendants as federal habeas petitioners in Davenport and Shinn and Twyford.  These rulings all included an unmistakable tone and notable dicta signaling that a super-majority of the Justices are quite eager to restrain the authority of federal courts to review and reverse state convictions via habeas.  We shall see if the conservative block of Justices will continue to look for opportunities to rein in lower federal courts seeking to give state prisoners habeas relief.  

3. Murderers, deference/comity, bites at the apple, and a coming test case.  Tsarnaev and Davenport and Shinn and Twyford all involved defendants convicted of serious murders (all but Davenport were capital cases).  A few capital defendants did prevail on distinctive issues: Ramirez provided clergy access at execution; Nance preserved 1983 as a robust mean to contest execution protocols.  A possible through-line here is that the Court is particularly troubled when federal courts fail to show deference or comity to give serious criminals multiple "bites at the apple," but they still will protect an initial "bite."  These themes add intrigue to the collateral review case already on the SCOTUS docket for next Term, Jones v. HendrixNo. 21-857, which involve statutory avenues for federal defendants to raise issues that were previously legally unavailable.

4.  A dynamic conservative block in criminal cases (with KavaRob as the new Kennedy?).  Among the conservative Justices, one can usually expect in criminal cases that Justice Alito will be the most likely to vote for the government and Justice Gorsuch will be the most likely to vote for the defendant.  But, in capital cases, Justice Gorsuch is a consistent vote against defendants while CJ Roberts and Justice Kavanaugh seem a bit more "defense friendly."  Interestingly, in two notable 5-4 rulings this Term, it was Justices Gorsuch and Thomas providing the key votes for a federal defendant in Concepcion and it was CJ Roberts and Justice Kavanaugh providing the key votes for a state capital defendant in Nance.

Before Justice Barrett replaced Justice Ginsburg, Justice Gorsuch alone could be a swing vote joining the liberal block to give a criminal defendant a win in closely divided cases (McGirt from 2020 is a notable example).  But now Justice Gorsuch's vote for a defendant may just be a fourth vote in dissent (as in Castro-Huerta and Twyford this Term).  Consequently, CJ Roberts and Justice Kavanaugh, who voted together this Term in 100% of cases, may now need to be the focal point for advocates in closely divided criminal cases.  (I call this pair "KavaRob" because I sense Justice Kavanaugh may care a bit more about the criminal side of the docket than does the Chief; I call them the "new Kennedy" because for many years criminal litigants knew that Justice Kennedy was the key swing vote they needed to target.) 

5. Justices Barrett seems mostly in line, so far, with Justice Alito in criminal cases.  I had been hoping that Justice Barrett might prove likely to vote with Justice Gorsuch on various criminal justice issues.  But this Term, Justice Barrett was more likely to vote with Justice Alito than even other conservative Justices, and that seemed particularly true in criminal cases (see Ruan), even though they were not always in sync (see Taylor).  I gave a talk not long after Justice Barrett joined the Court where I suggested she might follow Justice Gorsuch's path; some Seventh Circuit practitioners responded that I should not count on it.  The practitioners' perspective seems to have been more astute than my view from the ivory tower.

6. Might new Justice Jackson created a whole new Court in criminal cases?  One often hears that every new Justice makes for a whole new Supreme Court.  That aphorism is, of course, technically true; but most folks, myself included, expect new Justice Jackson to approach and vote on issues quite similarly to how retired Justice Breyer did.  That said, Justice Jackson might not track Justice Breyer on some criminal justices issues (such as Apprendi rights), and perhaps she might encourage the Court to take up more or different types of criminal justice cases.  Stay tuned.

July 10, 2022 in Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Saturday, July 09, 2022

Kisor role: how often is deference to the federal sentencing guidelines' commentary litigated?

In addition to starting with a terrible pun, the title of my post reflects my uncertainty about how much to make of the (slow-burn) uncertainty regarding application of the federal sentencing guidelines' commentary.  It is now over three years since the Supreme Court in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), recast for federal courts "the deference they give to agencies ... in construing agency regulations."  The Kisor case had nothing to do with the federal sentencing guidelines, but lower courts have since grappled with whether and when Kisor means that the commentary to the guidelines no longer should always be followed.    

This Kisor question is on my mind because a helpful colleague made sure I did not miss the Third Circuit's work last week in US v. Adair, No. 20-1463 (3d Cir. June 30, 2022) (available here).  The panel in Adair does a thorough job explaining how Kisor has been understood (by some circuits) to recalibrate whether and how sentencing courts must show deference to the the guidelines' commentary.  But so far a majority of circuits have not read Kisor to require changing the general tendency to treat guidelines' commentary as binding just like the actual guidelines (as the Supreme Court suggested back in Stinson v. US, 508 U.S. 36 (1993)). 

I flagged this issue in this post last year noting a big Sixth Circuit ruling, US v. Riccardi, 989 F.3d 476 (6th Cir. 2021), which held that certain commentary was an "improper expansion" of the meaning of "loss" in a fraud case.  I thought the Riccardi ruling could lead to lots of Kisor-impacted litigation because many fraud cases involve commentary that arguably expands on the guideline term "loss."  And yet, this issue recently merited only a single footnote in the USSC's recent "Loss Calculation" Primer, leading me to think this issue is not actually being litigated much. 

I know there have been at least a few cert petitions urging the Supreme Court to take up what Kisor means for the guidelines and their commentary, but perhaps the Justices do not yet see this issue roiling the lower courts enough to demand its intervention.  That said, I have noticed that a number of recent student notes on this topic:

So, dear readers, it is mostly law students spending lots of time on this intricate issue or are a lot more litigants and lower courts grappling with this Kisor role than I can see?

July 9, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Thursday, July 07, 2022

REPOSTING: Call for commentary for Federal Sentencing Reporter issue to provide "Advice for a new U.S. Sentencing Commission"

Because I care so much about the topic and because so much can get quickly forgotten this time of year, I am eager to keep reminding everyone here about this call for papers from the Federal Sentencing Reporter:

Seeking Commentaries for Federal Sentencing Reporter's October Issue to provide “Advice for a new U.S. Sentencing Commission”

Last month, President Joseph Biden announced seven nominees for the U.S. Sentencing Commission, and in early June the Senate Judiciary Committee held a confirmation hearing for this full slate of nominees.  The Commission has lacked a quorum since 2019, which has prevented the agency from amending the US Sentencing Guidelines in any way. President Biden’s nominations, if the confirmation process continues to move forward this summer, should allow an all-new Commission to get to work on federal sentencing reform matters big and small.  The editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share “Advice for a new U.S. Sentencing Commission,” for publication in the October 2022 FSR issue.

FSR commentaries for this issue could tackle big structural issues (such as how the Commission might review and reassess the entire guidelines system), smaller statutory issues (such as how to respond to reforms Congress enacted in the FIRST STEP Act), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes advice from all perspectives, including lessons the Commission could learn from the states and other countries.  Everyone with an informed interest in federal sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with light use of citations in the form of endnotes.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).

Priority will be given to drafts submitted by July 25, 2022, and later submissions will be considered as space permits. Submissions should be sent electronically to berman.43 @ osu.edu with a clear indication of the author and the author’s professional affiliation.

July 7, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Notable Seventh Circuit panel discussion of judicial challenges when revoking supervised release

As detailed in this post last month, the latest issue of the Federal Sentencing Reporter explores in depth the huge (but too often overlooked) issue of community supervision in the federal criminal justice system.  That issue came to mind when I reviewed the very interesting new Seventh Circuit decision in US v. Shaw, No. 21-1692 (7th Cir. July 6, 2022) (available here), which was brought to my attention by a kind reader.  Here is how the thoughtful and thorough majority opinion in Shaw starts and a key passage:

Terrance Shaw violated multiple conditions of his supervised release. The district court revoked his supervised release and sentenced him to two years’ imprisonment — well above the range recommended by the Sentencing Commission’s policy statements.  The court did not mention the sentencing factors from 18 U.S.C. § 3583(e), the statute that governs revocation of supervised release, as grounds for the upward variance.  The court instead explained that it was sending Shaw to prison to “help” him and give him a chance to access rehabilitative programs.  Congress has directed sentencing courts to recognize that “imprisonment is not an appropriate means of promoting correction and rehabilitation.” 18 U.S.C. § 3582(a).  Courts are thus precluded from imposing or lengthening a prison term to promote an offender’s rehabilitation. Tapia v. United States, 564 U.S. 319, 325–26 (2011). Because the record suggests that the district court lengthened a term of imprisonment to rehabilitate Shaw, we vacate Shaw’s sentence and remand for further proceedings....

[W]e recognize that courts are free to discuss the availability of rehabilitative programs and even encourage defendants to use them.  But by relying on rehabilitation as the sole basis for an upward variance, the court crossed the line from permissible comments to impermissible consideration. Because Tapia applies to both the imposition of a prison sentence and the lengthening of one, the court’s reliance on rehabilitation to impose the upward variance warrants remand.

We also recognize the difficult position that district courts find themselves in under Tapia.  On one hand, 18 U.S.C. § 3583(e) requires courts to consider several purposes of sentencing — including rehabilitation — before revoking an offender’s supervision or imposing a sentence.  On the other, § 3582(a) forbids courts from relying on rehabilitation as a reason for prison time.  Combined, these provisions seemingly force courts to walk a tightrope where they must both demonstrate their consideration of the offender’s need for rehabilitation while also disavowing that consideration as a reason for any resulting term of imprisonment.

Judge Hamilton wrote a concurring opinion to highlight how "Tapia and the statute put district judges in a difficult position."  Here is how his interesting discussion concludes:

When I read this sentencing transcript, I see a judge who was patient, humane, wise, and fair.  Judge McDade was dealing with an unusually difficult case.  The defendant had been provided multiple opportunities to straighten out his life, including a path to an unusually well-paying job in the middle of the pandemic.  He kept wasting those opportunities. The judge’s choice to revoke Shaw’s supervised release and to send him to prison was reasonable and easily predictable.  As the lead opinion notes, Shaw had repeatedly violated important conditions of his supervised release.  Sanctions less severe than prison had not had any noticeable effect.  The judge was not required to credit Shaw’s assurances that this time he would finally follow through on therapy and other rehabilitative programs if they were imposed again as conditions of supervised release.  A more legalistic explanation of Shaw’s revocation sentence on remand should pass muster as long as the district court makes explicit reasons that were left implicit in this transcript and avoids hinting that goals of rehabilitation in prison affected the fact or length of the prison sentence.

Tapia is just one example of how federal sentencing law has become more and more complex, with more and more opportunities for reversible error.  A district judge can reduce the risk of reversible error by disengaging from the individual defendant and the difficult challenges: Just calculate the Guidelines and follow them, perhaps noting that any tricky guideline issue had no effect on the bottom line and that the § 3553(a) factors control.  As was sometimes true during the years when the Sentencing Guidelines were binding, an error-free sentencing hearing can still sound a lot like an arithmetic problem.  A remand like this one further encourages that sort of mechanical march through the Guidelines and the statutory factors.

Yet we hope for more.  We want the sentencing judge to engage with the defendant, the offense, and victims — understanding the stories behind the crime and the prospects for the future.  We want the judge to sentence the defendant as an individual with his own history and characteristics and to tailor the sentence to those individual circumstances. See generally Concepcion v. United States, 142 S. Ct. —, — (2022).

That’s what Judge McDade was doing in this difficult case, trying to reach Shaw in any way he could: drawing on his own history, drawing on concepts of faith, ethics, and sin, and explaining in almost parental terms why the sentence needed to be more severe than the time-served slap on the wrist that Shaw sought. I view this remand as compelled by § 3582(a) and Tapia, but unfortunate and otherwise unnecessary.

July 7, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)