Wednesday, September 15, 2021

Utah prosecutors urge repeal of death penalty as "grave defect that creates a liability for victims of violent crime, defendants' due process rights, and for the public good"

As reported in this local article from Utah, a "coalition of district attorneys and county prosecutors from around the state made noise on Tuesday, presenting a joint letter to be sent to Governor Spencer Cox and the State Legislature, asking for a repeal of the death penalty."  Here is more:

Citing six specific reasons, the four attorneys; Christina Sloan of Grand County, Margaret Olson of Summit County, David Leavitt of Utah County, and Sim Gill of Salt Lake County combined their influence to pen a recommendation to replace the death penalty sentence for aggravated murder to a term of 45 years to life....

The last person to be executed by the state in Utah was Ronnie Lee Gardner on June 18, 2010. His execution by firing squad (yes, that is still an option if lethal injection is held unconstitutional, unavailable, or if the convicted selected that method before May 3, 2004) was highly publicized at the time.  However, it came 26 years after his murder of an attorney during an escape attempt while being transported to a hearing for a separate robbery and murder.

Following his death sentence, which was given in October 1985, Gardner’s case was trapped in a series of appeals and defense motions that delayed his execution. Likely, the court and legal fees that were involved in finally carrying out his sentence were in the hundreds of thousands of dollars, if not more....  The coalition of attorneys in Utah referred to another study concluding that death penalty convictions cost taxpayers $1.12 million more than holding them for life. “A death sentence also carries the inevitable expenses of appeal.  The taxpayers must pay for both the prosecution and the defense in these hearings,” the letter reads....

Attempts have been made before to repeal the death penalty in Utah. In 2018, a death penalty amendment was introduced in the state legislature as House Bill 379.  The provisions were filed in the house but didn’t pass, even after a favorable recommendation from the Law Enforcement and Criminal Justice Committee.

This four-page prosecutor letter, styled as "An Open Letter to Governor Spencer Cox and the Utah State Legislature," is worth a full read. It starts and ends this way:

As attorneys and duly elected public prosecutors, we have sworn to support, obey, and defend the Constitution of the United States and the Constitution of Utah.  We also have a statutory duty to call to the State Legislature's attention any defect in the operation of the law.  In fulfillment of that oath and responsibility, we alert legislators and the people of a grave defect that creates a liability for victims of violent crime, defendants' due process rights, and for the public good. The defect which we urge the Legislature to repeal is the death penalty....

Doctors take the Hippocratic oath to do no harm to people when they become licensed.  The promise of an attorney is one to uphold and defend the Constitution.  Yet as prosecutors, our client is the public.  We file our cases in the name of the state of Utah.  We work to protect public safety, preserve the privacy and dignity of crime victims and to hold the guilty accountable.  Then, once a defendant is convicted, we seek to make victims whole and ensure that a defendant does not harm others again.  When someone commits a violent murder, nothing can repair the damage that person has caused.  No earthly court can order restored life to a murdered son or daughter or a healed heart to a crushed husband or wife.  However, we can ensure that the offender goes to prison.  If the Legislature repeals the death penalty, the available sentences for aggravated murder will be life without parole or 25 years to life.  Twenty-five years is far too short of a time for our most violent offenders.  Most people convicted of aggravated murder are young men.  We believe that justice requires the third optionof45 years to life to be made available. As prosecutors, we are not seeking mercy for the murderer but justice for the people.  A 45 to life sentence will mean that if an offender ever gets out, it will not be until the twilight of their lives.  That will protect the public and, to the extent possible, provide a small measure of justice for what that person has taken away.  Accordingly, we call on the Legislature to remedy this defect in the law by repealing the death penalty and creating a new possible alternative to life without parole of 45 years to life.

September 15, 2021 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Tuesday, September 14, 2021

Yet more must-read new essays in Brennan Center's "Punitive Excess" series

highlighted here back in April the terrific new essay series assembled by the Brennan Center for Justice under the title "Punitive Excess."  I have blogged about sets of new essays repeatedly (as linked below) because each new set of new essays are must reads (like all that come before).  Here is the latest trio:

Prior related posts:

September 14, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

New letter with prominent signers urges Prez Biden to pardon all non-violent marijuana offenders

As reported in this press release, "150+ artists, athletes, producers, lawmakers, law enforcement officials, academics, business leaders, policy experts, reform advocates, and other professionals, signed a letter to U.S. President Joseph R. Biden, Jr. requesting a full, complete, and unconditional pardon to all persons subject to federal criminal or civil enforcement on the basis of a nonviolent marijuana offense."  (Disclosure: I am a signer of this letter.)  The full letter is available at this link, more about the effort is available here as well as from the press release:

The letter, which was spearheaded by the advocacy group The Weldon Project, includes signatures from celebrities such as Drake, Killer Mike, Deion SandersAl Harrington and Kevin Garnett.  Kazan will also participate in a live-streamed event today airing on Vimeo and moderated by Politico reporter Mona Zhang,  at 11:00 a.m. PT to discuss the letter and reinforce the case to provide clemency to all federal nonviolent marijuana offenders.

"The harms of incarceration are obvious, but the pains of federal marijuana convictions transcend prison walls, making it more difficult for someone to get a job, access affordable housing, and receive an education.  A conviction can forever limit an individual's constitutional rights and can put the American dream further out of reach for an entire family. Enough is enough.  No one should be locked up in federal prison for marijuana.  No one should continue to bear the scarlet letter of a federal conviction for marijuana offenses," the letter says, noting that three-quarters of the states have now abandoned the federal government's blanket criminal ban in favor of safe, regulated legal access to marijuana for adults and/or those with qualifying medical conditions.

The request to U.S. President Biden comes at a time when an overwhelming 68% of U.S. adults support the federal legalization of cannabis, and 1 in 3 Americans live in states where cannabis is legal for adults to use.  Thousands of individuals are currently incarcerated in the United States for nonviolent cannabis-related crimes, while countless others have had their rights and livelihoods stripped away because of prior arrests and sentences....

The letter to President Biden points out that a full pardon of federal marijuana offenders is consistent with the Constitution and past practices of presidents from both political parties.  "In 1974, President Ford established a program of conditional clemency for Selective Service Act violators.  In 1977, President Carter issued a categorical pardon to all Selective Service Act violators, closing the book on a costly and painful war.  President Biden has the power to do the same for the federal war on marijuana.  Through his act of constitutional grace, a general clemency will send a clear and powerful message that our country is truly taking a new course on criminal justice policy and practice."  In December of 2020, Angelos was fully pardoned by President Trump.

The stories of those who would be helped by a pardon are compelling: Drake, Meek Mill, Lil Baby, Killer Mike, and dozens of other hip-hop artists, for example, signed on in support of their friend and fellow rapper Ralo, who is facing 8 years for a nonviolent cannabis offense. "I appreciate my friends and peers in the hip-hop community, especially Drake, supporting my clemency because it's just not right that corporations are allowed to violate federal law and become millionaires while people like myself go to prison for years," Ralo said. "This is hypocrisy. I hope that Joe Biden honors his campaign promise and grants us clemency without delay, so I can return to my family and community."

September 14, 2021 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

NACDL produces notable new report on data-driven policing and racial bias in criminal justice system

As detailed in this new press release, "today, the National Association of Criminal Defense Lawyers (NACDL) released its latest report – Garbage In, Gospel Out: How Data-Driven Policing Technologies Entrench Historic Racism and ‘Tech-wash’ Bias in the Criminal Legal System."  Here is  more from the release:

As explained in the report, in recent years, police departments have been turning to and relying on rapidly developing data-driven policing technologies to surveil communities, track individuals and, purportedly, predict crime.  These technologies include algorithmic decision-making that departments claim can predict where crime is likely to occur, who will likely commit crime, and who will likely be a victim.  These algorithms are thus designed to interrogate massive troves of data gathered in a myriad of ways, using inputs that can range from police-generated crime reports to publicly available social media posts.  The outputs are then used to make critical decisions about patrols, or to make life-altering designations of individuals.

The purpose of this Report is to: (1) call attention to the rapid development and deployment of data-driven policing; (2) situate data-driven policing within the racialized historical context of policing and the criminal legal system; (3) make actionable recommendations that respond to the reality, enormity, and impact of data-driven policing; and (4) suggest strategies for defense lawyers in places where data-driven policing technology is employed.

“This Report will contribute profoundly to the national conversation regarding the inhumane, unfair, and destructive impact of racism and bias in policing,” said NACDL President Martín Antonio Sabelli.  “As the title of the Report suggests, data-driven policing technologies amplify the effects of systemic racism in policing by collecting data based on racist policing (including, for example, overpolicing of communities of color) and treating that garbage data as gospel for future policing decisions. ‘White-washing’ this biased data does nothing more than give a veneer of respectability and an appearance of neutrality while entrenching problematic practices rooted in racism.  The report calls for the abandonment of data-driven policing, wherever possible, and transparency and accountability where such practices have already become entrenched.”

“For more than two years, NACDL’s Task Force on Predictive Policing conducted research and interviews across the nation, leading to this report and the recommendations and suggested strategies set forth in it,” explained NACDL Task Force on Predictive Policing Chair Cynthia W. Roseberry.  “This report works to demystify the practice of data-driven policing to ensure that those engaged in the essential work of combatting systemic racism in the criminal legal system can operate with full information.  This report is not only an important addition to the body of scholarship in this area, it will also serve as a vital tool for advocates and defenders alike.”

The Report’s major topics include (1) the history of policing and the economics of punishment, (2) the history of surveillance and the rise of big data, (3) the landscape of data-driven policing, (4) critical analysis of data-driven policing, (5) task force recommendations on data-driven policing technologies, (6) an overview of state and local legislation, (7) an overview of police departments that have suspended or terminated contracts with data-driven policing programs, and more.

The full 100+-page report is available at this link.

September 14, 2021 in Procedure and Proof at Sentencing, Race, Class, and Gender, Technocorrections, Who Sentences | Permalink | Comments (0)

Last call for "Donald Trump’s Theatre of Pardoning: What Did We Learn?"

Today is the day for this online panel, the first in a terrific series of online panels exploring in depth federal clemency powers.  As explained in this prior post, this series is jointly organized by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law, the Collateral Consequences Resource Center, the Federal Sentencing Reporter, and the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance at Villanova University Charles Widger School of Law. 

A whole lot of folks are doing great work putting this series together, and Margaret Love merits extra praise for her efforts and for helping to assemble writings on these timely topics in Volume 33, Issue 5 of the Federal Sentencing Reporter (which largely provides the foundation for these panels).  Here are more details about today's first panel:

Donald Trump’s Theatre of Pardoning: What Did We Learn?

Tuesday, September 14, 2021 | 12:30 – 2:00 p.m. EDT | Zoom  (Register here)

This panel will examine the unusual nature of President Donald Trump’s pardoning, looking at the grants themselves and the process that produced them.  Professors Bernadette Meyler and Frank Bowman, both scholars of the pardon power, will look to history for anything comparable to Trump’s use of the pardon power, and comment on its implications for the role that pardon has historically played in the U.S. justice system.  Amy Povah will share her experiences as someone who was personally involved in recommending cases to the White House at the end of the Trump Administration.  Kenneth Vogel will share his experiences as a journalist covering Trump’s pardons for the New York Times.  This panel will set the stage for the two subsequent panels about the future of presidential pardoning, by asking basic questions about the role of a regular pardon process and the result of it having been sidelined by Trump.  It will also consider whether Trump’s pardons were an aberration or the predictable result of trends in pardoning over the past thirty years.

Panelists:

Frank Bowman, Floyd R. Gibson Missouri Endowed Professor of Law, University of Missouri School of Law
Bernadette Meyler, Carl and Sheila Spaeth Professor of Law, Stanford Law School
Amy Povah, founder, CAN-DO Justice through Clemency
Kenneth VogelNew York Times

Moderator:

Margaret Love, executive director, Collateral Consequences Resource Center and former U.S. Pardon Attorney

September 14, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, September 13, 2021

Action beginning on Biden clemency plan for some drug offenders in CARES home confinement cohort

As discussed in this post from late last month, there has been talk that Prez Biden might use his clemency powers to help ensure that some member of the CARES home confinement cohort does not have to return to prison after the pandemic.  This new Politico piece, headlined "Biden starts clemency process for inmates released due to Covid conditions," reports on new action on this front:

The Biden administration has begun asking former inmates confined at home because of the pandemic to formally submit commutation applications, criminal justice reform advocates and one inmate herself tell POLITICO.

Those who have been asked for the applications fall into a specific category: drug offenders released to home under the pandemic relief bill known as the CARES Act with four years or less on their sentences.  Neither the White House nor the Department of Justice clarified how many individuals have been asked for commutation applications or whether it would be expanding the universe of those it reached out to beyond that subset.  But it did confirm that the president was beginning to take action.

“The Biden-Harris Administration is working hard every single day to reform our justice system in order to strengthen families, boost our economy, and give Americans a chance at a better future," said White House spokesperson Andrew Bates. "As part of this, President Biden is deeply committed to reducing incarceration and helping people successfully reenter society.  As he has said, too many Americans are incarcerated -- and too many of those incarcerated are Black and Brown. That is why the President is exploring the use of his clemency power for individuals on CARES Act home confinement. The Administration will start the clemency process with a review of non-violent drug offenders on CARES Act home confinement with four years or less to serve.”

The requests from the administration are a concrete sign that the president is planning to use his clemency powers to solve what was shaping up to be one of the thornier criminal justice matters on his desk. The New York Times previously reported that such requests for applications would be coming....

“While we are excited to hear the Biden administration is actively seeking clemency petitions for non violent drug offenders, we pray he will not carve up CARES Act recipients into small subsets,” said Amy Povah, a former prisoner who has become a well known clemency advocate.  “No other president in history has been handed a 'dream come true' opportunity to easily identify a large group of individuals who have already been vetted and successfully integrated into society, many of whom are now gainfully employed, found housing, and are healing the family unit that was injured due to tough-on-crime sentencing policies that previous administrations have acknowledged are horribly unjust.”

Rachel Hanson, 37, was one of those paroled inmates who was at risk of being sent back to her federal facility.  She was 8.5 years into a 151 month sentence for charges of possession with intent to distribute an unspecified amount of cocaine.  She had been released from prison in August of 2021 under the CARES Act but kept in home confinement wearing an ankle monitor.  She was contacted by her case manager on Friday, who told her that her name was submitted by the Department of Justice for expedited clemency and that she needed to fill out her clemency packet right away.

She described the events of the past few days as a blur. “I was so surprised,” she said. “I didn’t expect it.  You hear about clemency. You know it happens to people but you don’t always see.” Hanson has three children, one of whom is a senior in high school. She has a job interview lined up for Tuesday for a production coordinator post at a welding factory.  She has to rush to get her clemency packet completed first....

Udi Ofer, the ACLU’s deputy national political director, said that while he was heartened that the administration was now acting, he faulted the administration for acting in a less than transparent way with advocates and advocacy groups in the criminal justice space.  He said he was troubled by the possibility that it was cleaving off CARES Act recipients into those deserving commutation and those who didn’t.  He noted that the Bureau of Prisons, in originally releasing inmates under the CARES Act, had already made a determination between those who posed a threat of violence and those who didn’t.  “On the other hand, through the anecdotal information we’re seeing, we are worried that the White House is viewing this issue too narrowly and unnecessarily restricting the category of people being asked to apply for clemency,” said Ofer.

Some advocates for clemency and other forms of sentence reduction also expressed concern that the Biden administration’s move essentially put it in the position of working from a list developed by the Bureau of Prisons during the Trump administration, in a process critics said lacked clear guidelines and transparency.  “It’s not clear how the Bureau of Prisons chose people for this home confinement program, which raises the question of whether it’s fair to give a special benefit to these folks not available to those who have filed clemency petitions sometimes years ago and have been patiently waiting,” said Margaret Love, who served as Justice Department pardon attorney under Presidents George H.W. Bush and Bill Clinton.

I am very pleased to hear of some tangible developments on this long-simmering front, though I would really now be eager to see some detailed accounting of how many members of the CARES home confinement cohort are drug offenders with four years or less on their sentence.  I am also not going to expect or assume that Prez Biden is going to grant clemency to a notable number of individuals until he actually grants clemency to a notable number of individuals.  And I hope this process might prove transparent along the way (as well as robust and just the start of  overdue clemency efforts).

I am now wondering about the expected specifics of clemency grants by Prez Biden for some members of the CARES home confinement cohort.  Through clemency, Prez Biden could shorten the prison terms of individuals so that they have no more time left to serve in prison or on home confinement.  I am assuming that is the working plan, though I think Prez Biden could also opt to just convert remaining prison terms into time to be served only and entirely on home confinement.  As I have highlighted in prior posts here and here, many member of the CARES home confinement cohort could be bringing sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A), and it is interesting to think how pending clemency talk and coming action might impact efforts to secure relief through the courts.

Interesting times.

Some of many prior related posts:

September 13, 2021 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Federal prosecutors signal they will be seeking jail time for some Capitol riot misdemeanants

This post from a few months ago, headlined "Federal judges expressing some concern about lenient plea deals for some Capitol riot defendants," spotlighted some comments by some federal judges about whether federal prosecutors we not being sufficiently "tough" in their prosecutorial approach to some January 6 rioters.  This recent Politico article, headlined "Prosecutors: Jan. 6 defendants should expect jail time," suggests that federal prosecutors got the message as they are now talking up the prospect of seeking jail time even in some cases that are resolved through only misdemeanor charges.  Here are the details:

Federal prosecutors indicated Friday that those who breached the Capitol — even those charged only with misdemeanor offenses like parading — should expect to face jail time, not probation, for their role in the assault.  "Misdemeanor breaches of the Capitol on January 6, 2021 were not minor crimes," Assistant U.S. Attorney Kevin Birney wrote in a sentencing memo for Valerie Ehrke, one of more than 600 defendants charged for participating in the Capitol mob.  "A probationary sentence … should not necessarily become the default."

Birney, however, did recommend probation for Ehrke, describing her as "the rare case where a probationary sentence is appropriate."  Ehrke entered the Capitol for just one minute, exiting quickly after police began repelling the crowd. She committed no violence or property destruction, according to surveillance videos, and she voluntarily spoke to law enforcement, expressing remorse and ultimately becoming one of the first to plead guilty. All of those factors, Birney wrote in the filing, should result in a probation-only sentence.

Few of the Jan. 6 defendants have reached sentencing so far, with Paul Hodgkins — the first felony case to get to the sentencing stage — facing an eight-month jail term, the longest doled out by judges to date.  Anna Morgan Lloyd, the first Jan. 6 defendant sentenced, received 36 months of probation for a misdemeanor guilty plea from Judge Royce Lamberth.  Judge Thomas Hogan sentenced Jessica and Joshua Bustle, a couple charged with misdemeanor offenses for entering the Capitol, to home confinement and probation, in part because they are expecting the birth of a child soon.

Like prosecutors, though, Lamberth emphasized that other defendants shouldn't necessarily expect probation for participating in the breach of the Capitol. “I don’t want to create the impression that probation is the automatic outcome here because it’s not going to be," Lamberth said during Morgan-Lloyd's sentencing, a comment that Birney pointed to in his sentence recommendation for Ehrke.

Hogan, too, echoed that sentiment, telling the Bustles, "I think the presumption should be that these offenses were an attack on our democracy and that jail time is usually — should be expected."

None of the Jan. 6 defendants facing the most serious charges, including dozens accused of assaulting police officers and a growing contingent charged with conspiring to block the certification of President Joe Biden's victory in the 2020 election, have been sentenced yet. Prosecutors say misdemeanor defendants bear responsibility for some of the more egregious crimes committed that day, in part because the sheer size of the mob helped provide cover for the most dangerous participants in the attack.

Some of many prior related posts:

September 13, 2021 in Booker in district courts, Celebrity sentencings, Who Sentences | Permalink | Comments (3)

Sunday, September 12, 2021

Reminders from many Govs to Prez Biden: it is always a good time for good clemency

I noted in this recent post that Prez Biden is now behind Prez Trump's clemency pace as we approach the end of the eighth month of Prez Biden's time in the Oval Office without him having yet used his clemency pen one single time.  As discussed in this post from late last month, there is talk that Prez Biden might use his clemency powers to help ensure that at least some member of the CARES home confinement cohort does not have to return to prison after the pandemic.   With summer now winding down, I thought it might be useful to highlight that at least some state governors understand that any time and every season can be a good time and season for clemency.  So here is a round-up of just some stories and commentaries about state clemency efforts from just this summer: 

From Arkansas: "Governor Asa Hutchinson Announces Intent to Grant Executive Clemency"

From Kansas: "Kelly Commutes 5 Prisoners' Sentences, Pardons 3 Others"

From Missouri: "Governor Parson Grants 12 Pardons, Commutes One Sentence"

From New Mexico: "Pardons for 19 New Mexico criminals, some who were violent"

From Oregon: "Pardons and commutations rising in Oregon"

From Virginia: "Northam was right to grant clemency to the Martinsville Seven. He should extend it to the living, too."

From Washington: "Inslee commutes more convictions to clear backlog left after Washington state’s drug-possession law struck down"

From Wisconsin: "Gov. Evers grants 71 pardons since May"

September 12, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (8)

Thursday, September 09, 2021

A short de facto execution moratorium?: could other condemned inmates secure a stay until SCOTUS decides new Ramirez case on religious liberty?

As highlighted in this post, the Supreme Court late last night stayed the execution of John Ramirez, who was scheduled to be killed by Texas via lethal injection on Wednesday night.  Importantly, the Justices not only postponed this execution, it also granted certiorari to allow the Court to fully consider on the merits Ramirez’s request that his pastor be allowed to physically touch him and audibly pray in the execution chamber while Ramirez is put to death. 

Notably, the brief SCOTUS order called for an expedited briefing schedule "that will allow the case to be argued in October or November 2021."  But, even if the argument were to take place in (late) October, it seems pretty unlikely that the Court's ultimate ruling in Ramirez v. Collier will be handed down before late November.  And, as detailed here, Texas has six additional executions scheduled for between now and November 17, 2021.  I cannot help but wonder if some or all of these condemned inmates on Texas death row will now request that a religious official be allowed to physically touch them and/or audibly pray in the execution chamber while they are put to death.  If any or all other Texas inmates on death row now make such a religious request and it is denied by prison officials (and/or if Alabama and Missouri inmates scheduled to be executed in October make similar requests), wouldn't the balance of equities support a short stay of these other scheduled executions until the Supreme Court rules in Ramirez?

Perhaps Texas and other state officials will seek to go forward with executions despite any new Ramirez-type requests by other condemned inmates for religious accommodations in the execution chamber by asserting that any new request is not made in good faith and is only a last-minute (and too-late) effort to delay an execution.  But couldn't  an inmate respond, perhaps in good faith, that he did not even think such a religious accommodation was possible until John Ramirez litigated this issue and the Supreme Court decided to take it seriously.  I sense lower courts might be particularly wary of trying to judge whether a dying inmate's religious request is sincere.  Moreover, the fact that SCOTUS has fast-tracked this case might also enable death row inmates and their counsel to argue that any execution postponement to resolve a requested Ramirez-type religious accommodations would likely last only a few months.

Am I missing something and/or am I crazy to think that the SCOTUS cert grant in Ramirez could produce a short de facto execution moratorium until the Justices issue an opinion in Ramirez

September 9, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (7)

Interesting look at efforts to shine more light on, and get better results from, New York parole practices

Via email I learned of this lengthy article in the Fordham Law magazine discussing the interesting work of Fordham Law's Parole Information Project.  Here is part of the article (with links from the original):

Just as the pandemic has revealed racial disparities in access to health care (and vaccines), dig into New York State’s parole process and you will find racial disparities in access to justice.  An analysis by Albany’s Times-Union newspaper found that of 19,000 parole decisions made in New York State over the past two years, 41 percent of white inmates in New York State prisons were granted parole, while only 34 percent of Black inmates and 33 percent of Hispanic inmates were paroled.  And an earlier study by The New York Times found that fewer than one in six Black or Hispanic men were released at their first hearing, compared with one in four white men.

Overall, 12,000 incarcerated individuals are considered for parole in New York State every year, and a large majority are denied.  Worse, most of the families and pro bono lawyers who are trying to help these prisoners will never know why — the process is that opaque....

“Too often, with issues around mass incarceration, we look at the beginning of the system: who is getting arrested, the sentences they are getting,” says [Martha] Rayner, {who co-directs Fordham Law School’s Criminal Defense Clinic].  “But more and more, there’s a new understanding that if we are going to decarcerate [the prison population], parole is a key area of reform.”

Fordham Law School is on the cutting edge of that reform with its Parole Information Project, a unique database of parole documents that aims to make the archaic, Byzantine parole and parole-appeal process in New York State easier to navigate and more transparent.

With nearly 1,000 parole board transcripts and interviews, assessment reports, and appeal decisions online, all in a searchable, free, and publicly accessible database, it’s possible for families, advocates, attorneys, and, really, anyone, to discover which parole commissioners are making what decisions and exactly what happens in those once-mysterious parole and parole-appeal meetings, and to look for patterns and precedents that can aid anyone focused on parole be more effective and powerful in their efforts.

Now, in the wake of Black Lives Matter as well as two pending New York State laws aimed at reforming the parole system, Fordham Law’s parole project is ramping up. A $100,000 grant from Goldman Sachs will pay for a fellow focused on parole work and add crucial resources to expand the program. “The stars are aligned,” says Rayner, referring to both the grant and the aforementioned two New York State laws up for consideration that could make it easier for those eligible for parole to get it: the Fair and Timely Parole bill and The Elder Parole Bill.

The grant will also go a long way toward helping the parole project team overcome a number of challenges, as well as continue to grow the database. “For any meaningful statistical information, you need a certain volume of documents, and it takes time to get them, to redact names of individuals for privacy, and to revise the database to stay up to date with the most current laws,” explains Yael Mandelstam, the Maloney Library’s associate librarian for technical services.

September 9, 2021 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, September 08, 2021

SCOTUS stays Texas execution and grants cert on death row inmate's request for pastor's touch during execution

Texas was scheduled to execute John Ramirez this evening, but the Supreme Court blocked the effort as reported here at SCOTUSblog:

The Supreme Court agreed to postpone the execution of John Ramirez, who was scheduled to die on Wednesday night in Texas.  The last-minute respite will allow the justices to fully consider Ramirez’s request that his pastor be allowed to physically touch Ramirez and audibly pray in the execution chamber while Ramirez is put to death.

Ramirez’s emergency application was the latest in a series of shadow-docket requests in the past two years involving spiritual advisers at executions. But the justices are now poised to weigh in more definitively on the rights of inmates to have spiritual advisers at their side in their final moments: In the brief order putting Ramirez’s execution on hold, the court agreed to hear Ramirez’s appeal on its regular docket this fall.

Ramirez, who was sentenced to death for the 2004 murder of convenience-store clerk Pablo Castro, asked to have his Baptist pastor, Dana Moore, put his hands on Ramirez’s body and pray out loud as Ramirez is executed.  After Texas refused to grant that request, Ramirez went to federal court in August.  The district court rejected Ramirez’s bid to postpone his execution last week, and the U.S. Court of Appeals for the 5th Circuit turned down his plea to intervene.

The four cases that have previously reached the court centered on whether spiritual advisers could be present in the execution chamber at all....  Ramirez’s case involved a slightly different issue: what kind of aid a spiritual adviser can (and cannot) provide during an execution.  Ramirez came to the Supreme Court on Tuesday, asking the justices to put his execution on hold and to review his case on the merits.  He stressed that his filing was not a last-minute effort to delay his execution, because he had first raised the spiritual-adviser question over a year ago.  The state’s refusal to allow Moore to touch him and pray out loud, Ramirez argued, violates both his constitutional rights and the federal law guaranteeing religious rights for inmates.  Under the Texas policy, Ramirez emphasized in his reply brief on Wednesday, the execution chamber would be “a godless vacuum,” with Moore “no different from a potted plant.”...

In an order issued shortly before 10 p.m. EDT, the justices agreed to stay Ramirez’s execution and to hear his appeal on the merits. The court indicated that the case should be fast-tracked, with oral argument set for either October or November. There were no public dissents from Wednesday’s order.

September 8, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Tuesday, September 07, 2021

After being a modern criminal justice reform success story, is Texas back to its "tough and tougher" past?

The question in the title of this post is prompted by this notable new Texas Monthly article fully  headlined "Who Killed Criminal Justice Reform?: The state was once a model of how to safely move away from mass incarceration.  Now the old politics of 'law and order' are back."  The lengthy piece is worth reading in full, in part because it details some political dynamics that extend far past the Lone Star State. Here are excerpts:

Rick Perry ... often boasted about his role in downsizing the Texas prison system.  When he became governor in 2000, the Texas prison population had quintupled over the previous twenty years — swelled by thousands of small-time drug offenders and others convicted of nonviolent crimes, who cost the state hundreds of millions of dollars a year to incarcerate with little clear benefit to public safety. Faced with this profligate use of tax dollars, Perry explained, he had had no choice but to speak truth to power.  “Let my people go,” the governor said, like Moses to Pharaoh.  Armed with this conviction, he signed dozens of bills that helped free the wrongfully convicted and kept nonviolent offenders from going to jail. 

The incarcerated population declined enough that Texas was able to close three prisons. The state’s reforms became a model for others, and justice rolled down like water.  As lawmakers were quick to point out, however, Perry was hardly parting the seas.  Mostly, he managed not to stand in the way of bills passed by the Legislature.  But even that was significant.  While the rest of the country was still carrying on in the tradition of the tough-on-crime nineties, Texas stood apart.

How times have changed.  If Perry’s successor, Governor Greg Abbott, launches his own presidential run, he will do so while proudly proclaiming that, like Pharoah to Moses, he held his ground and said, “Not so fast.” Abbott has joined a counterrevolution, allowing his antipathy toward Democratic officials to outweigh the effectiveness of policies embraced by much of his party.  Take, for instance, his treatment of Dallas judge John Creuzot, who years earlier convinced Perry to support drug courts, which offer treatment rather than incarceration for low-level offenders. In 2018 Creuzot was elected Dallas County district attorney and soon announced that his office would no longer prosecute small-time drug offenses and other petty crimes that often involve the poor, mentally ill, and unhoused.  He was quickly pilloried by Abbott and Attorney General Ken Paxton, who accused him of “abandon[ing] the rule of law.”

These days, the Legislature isn’t doing much reforming either.  During recent sessions, proposed improvements to the criminal justice system have been blocked by powerful police lobbies and their supporters in state government.  One of the most anticipated pieces of legislation this year would have barred police from arresting Texans for most Class C misdemeanors — including traffic violations, such as the one that prompted the confrontation that led to Sandra Bland being placed in the Waller County jail cell where she reportedly killed herself.  A somewhat watered-down version of the bill passed the House during the regular session with the support of the Republican Speaker — the culmination of years of effort from disparate groups. But it never even received a hearing in the Senate, where Lieutenant Governor Dan Patrick has revived the law-and-order crusade of decades past.  Its demise marked the third time in three sessions that a version of the bill has failed to pass.

Reformers have watched with a mixture of disbelief and dismay as the bipartisan consensus has crumbled. “This year it became evident that police reform of even the smallest sort cannot occur in Texas while Greg Abbott and Dan Patrick remain in office,” Austin writer Scott Henson recently noted on his criminal justice blog, Grits for Breakfast.

And it’s not just on police reform that progress has stalled. During the special sessions he called this summer, Abbott pushed legislation intended to reverse some of the gains made in fixing Texas’s archaic bail system.  For years, Texas cities, particularly Houston, have taken strides to reduce their reliance on cash bail, which ensures that many poor and mentally ill defendants arrested for comparatively minor crimes stay stuck in county jails for months. Bail reform is supported not just by criminal justice activists and Democratic local elected officials; Nathan Hecht, the Republican chief justice of the Supreme Court of Texas, has called for a complete overhaul of the way courts handle pretrial detention. But the bail bill pushed by state leaders aimed to strengthen the role cash bail plays.

Abbott and his allies are responding to a real issue, as well as a political opportunity.  Rising rates of violent crime, especially in large cities, have prompted politicians of all stripes to offer solutions.  For many, and particularly for conservatives, a well-worn playbook — more police, less tolerance toward even petty crimes — is an obvious answer.  In addition, the racialized backlash to the Black Lives Matter protests of last year has made some Republicans skittish about criminal justice reform.  Calls by some progressives to “defund” the police at a time when crime is rising have handed Republicans a winning campaign issue....

Many conservatives are wobbling because of larger political dynamics.  Police reform went from a relatively sleepy matter to a supercharged issue intertwined with the culture wars.  Republicans in Austin are peeved with the state’s big-city mayors, district attorneys, and county officials.  These figures, mostly Democrats, now serve as the face of the reform movement, loudly declining to prosecute low-level offenses and attempting to hold police responsible for misconduct.  The conservative news outlets and Facebook feeds that have amplified an endless stream of footage of protests and riots have made many viewers feel as if anarchy were descending on the country — and that the thin blue line needed to be strengthened, not “defunded.”

The rising murder rates in most Texas cities during the pandemic haven’t helped the movement either.  Violent crimes such as homicide and robbery are still less common than during much of the seventies, eighties, and nineties.  But that doesn’t make much of a difference in public perception.

There’s another significant factor contributing to the backsliding.  “This is a Trump thing,” Henson says.  During his time in office, the former president — who, on the campaign trail, exploited fears of crime, especially when suspects were Black or Latino — promised to punish wrongdoers and maintain order in ways that Republicans had recently deemphasized.  Henson says Trump’s approach rubbed off.  Patrick and Abbott have started talking tougher.  Speaker Dade Phelan, meanwhile, often talks like a reformer of the Perry era.

Those brief years may have been an aberration, rather than a fundamental shift in the state’s approach to criminal justice, Henson says.  The post–Civil War era saw the introduction of a regime of forced labor designed to control freed slaves and others who were regarded as undesirable.  During the sixties the Legislature responded to the civil rights movement by effectively trying to criminalize nonviolent protest.  In the nineties, Ann Richards bragged that she had added 75,000 prison beds and “cut parole by two thirds.”  And it’s easy to overstate how much progress Texas has made: Yes, the number of Texans who are incarcerated as a percentage of the state’s population continues to decrease.  But according to the most recent figures, our incarceration rate ranks higher than that of all but five other U.S. states.

Still, not everyone is as pessimistic as Henson. Marc Levin, the former Right on Crime policy director, thinks the sour national political climate could shift.  “We’re kind of seeing the crime rate level off” in major cities, he says.  (Though the murder rate has continued to climb, statisticians say the growth in the rate has slowed in the first six months of this year.)  It’s possible, he says, that last year’s crime spike was caused in large part by the disruptions of the pandemic and that things will soon settle down.

Though Trump’s rhetoric was often harsh, he signed important reforms into law, notably the First Step Act, which reduced some draconian federal prison sentences and sought to improve conditions in federal lockups.  Conservatives are now more willing to make substantial investments in the mental health-care system (such as updating the state’s aging psychiatric hospitals) and other alternatives to incarceration, Levin says.  He believes that the elements of the criminal justice debate that seem to trigger right-leaning voters — “antifa” and “defunding” the police — may lose their power to terrify.

September 7, 2021 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Monday, September 06, 2021

"If Democrats don't think Robert Kennedy’s assassin deserves parole, do they really support criminal justice reform?"

The question in the title of this post is the subtitle of this new MSNBC commentary authored by Chris Geidner.  The main headline is "California may parole Robert Kennedy's assassin. Liberals aren't happy."  Here are excerpts:

Sirhan Sirhan, who was convicted of murdering Robert F. Kennedy 53 years ago, has been recommended for release by the California Board of Parole Hearings.  But, in a misguided effort that serves to reinforce the harsh practices that led to our incarceration explosion, some Democrats are fighting against the 77-year-old’s release. In doing so, they’re helping fuel the tough-on-crime rhetoric most often voiced these days by Republicans.

Sirhan was originally sentenced to death for murdering the presidential candidate and former attorney general as he campaigned in Los Angeles, but in 1972 his sentence was commuted to life in prison with the possibility of parole.

Sirhan has been denied parole 15 times — most recently in 2016. But on Aug. 27, the California parole board recommended his release.  After that recommendation, we quickly were reminded that the assassination from 53 years ago remains a present and painful memory to many Americans. It also became clear that some Democrats and progressives are willing to make exceptions to the criminal justice reforms they’ve claimed to support.

“I can’t pretend to know what’s going on in people’s minds,” Sirhan’s lawyer, Angela Berry, told me after the parole board’s recommendation.  “I think that wound is just so strong for people. They just can’t see that the board followed the law.”

That “they” includes opportunistic, “tough on crime” conservatives — but also liberal and progressive Democrats. “The news of Sirhan’s potential release hit me hard this weekend,” filmmaker Michael Moore wrote. “No, this assassin must not be set free.”

Few have voiced their opposition as loudly as Harvard Law School Professor Emeritus Laurence Tribe.  A longtime prominent liberal voice, Tribe has been on a nonstop campaign to stop Sirhan’s parole. Before the parole panel even met — with no apparent investigation, let alone evidence — Tribe, referring to Sirhan, wrote on Twitter, “Even at 77, he could be a threat.”...

Sirhan has been eligible for parole for several decades.  “The law presumes release unless the person poses a current unreasonable risk to the public,” Berry said.  “There wasn’t one iota of evidence to suggest this man is still dangerous.” The documents Sirhan submitted to the parole board included evidence from the state’s own experts that Sirhan “represents a Low risk for violence” and noted that his current age qualifies him for “elderly prisoner consideration” and the age at which he committed his crime means he should be treated as a “youthful offender.”...

Our system has become extremely carceral, but in 1972, when Sirhan was sentenced to life with the possibility of parole, the idea that someone would serve more than 50 years in prison was way outside the norm.  As his submission to the parole board noted, “The proscribed punishment for first degree murder in 1968 was life with parole eligibility after 7 years.”  Throughout the country, we've not only increased sentences exponentially since then, but we've also decreased the use and availability of parole and clemency and deemed more activities criminal.

Democratic opposition to letting California’s parole system work as intended is a problem for a party that claims to support criminal justice reform.  Reformers in both parties have set goals to end over-sentencing, expand the use of clemency and parole and end overcriminalization.  But when Tribe, and even the Kennedys, speak in opposition to Sirhan’s parole, opponents of reform hear their “tough on crime” refrains being justified....

After initially arguing against Sirhan’s release, Moore wrote that his sister, a public defender, persuaded him to think more deeply about his position.  “If the Governor decides to let him go, I will try to find my peace with that,” Moore wrote.  “While offering my love to Kennedy’s family. And recommitting myself to the efforts of bringing about a more just system.”

A more just system means so many things, but, specifically here, it means letting parole work, and it means understanding that turning prisons into nursing homes for people who were practically children when they committed crimes is not only a financial mistake, it misunderstands our knowledge that people change and that older people overwhelmingly do not commit crimes.

Prior related posts:

September 6, 2021 in Celebrity sentencings, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sunday, September 05, 2021

A long weekend wrap up with a long reading list

A busy week before a busy long weekend has left me with a long reading list of press and commentary pieces on a variety of sentencing and other criminal justice issues. Here is just part of this list with links:

From CBS News, "Inmates on home confinement could be sent back to prison after the pandemic: "Why make us go back and do it again?""

From The Guardian, "What I learned visiting Alaska’s only maximum-security prison"

From Insider, "Arkansas jail inmates say they were unknowingly given unproven COVID-19 treatment ivermectin: 'They were running experiments on us'"

From Jacobin magazine, "More Criminalization Isn’t the Answer to Gun Violence"

From The Oregonian, "Multnomah County DA Mike Schmidt hires criminal defense lawyer to review past convictions, sentences"

From Politico, "How Progressives Are Knocking Out Local Judges Across the Country"

From NBC News, "Some prison labor programs lose money — even when prisoners work for pennies"

From the New York Times, "In the Eyes of God, Does a State Have the Right to Kill a Man?"

From NPR, "Crowded U.S. Jails Drove Millions Of COVID-19 Cases, A New Study Says"

From Slow Boring, "The rapidly shifting Hispanic experience of American criminal justice"

September 5, 2021 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

More than two dozen attorneys general urge Congress to extend crack retroactivity to offenders left behind by Terry

Back in June, as discussed here, the Supreme Court embraced a limiting interpretation in Terry v. US, No. 20–5904 (S. Ct. 2021), as to who can secure resentencing based on crack penalties being lowered by the Fair Sentencing Act and then made retroactive by the FIRST STEP Act.  As detailed in this press release from the Michigan Attorney General, this past week "a bipartisan coalition of 25 attorneys general [signed a letter] urging Congress to amend the First Step Act and extend critical resentencing reforms to individuals convicted of the lowest-level crack cocaine offenses."  The full letter is available at this link, and here are excerpts from the start and close of the letter:

As our jurisdictions’ Attorneys General, we are responsible for protecting the health, safety, and well-being of our residents. Although our jurisdictions vary in size, geography, and political composition, we are united in our commitment to an effective criminal justice system that safeguards the communities of our states. To that end, a bipartisan coalition of Attorneys General supported the passage of the First Step Act of 2018 — landmark legislation that brought common sense improvements to myriad aspects of the criminal justice system. Central to these reforms was retroactive relief for individuals sentenced under the discredited 100-to-1 crack-to-powder cocaine ratio that Congress abolished in 2010. Following the Supreme Court’s recent opinion in Terry v. United States, however, the lowest level crack cocaine offenders remain categorically ineligible for resentencing. We write today to urge Congress to amend the First Step Act, and to clarify that its retroactive relief applies to all individuals sentenced under the prior regime....

There is no reason why [lowest-level offenders] — and these individuals alone — should continue to serve sentences informed by the now-discredited crack-to-powder ratio. Discretionary relief is unambiguously available to serious dealers and kingpins sentenced under the prior regime; extending Section 404’s scope would simply allow individual users and other low-level crack cocaine offenders to have the same opportunity for a second chance. We therefore urge Congress to clarify that Section 404 of the First Step Act extends to all individuals convicted of crack cocaine offenses and sentenced under the 100-to-1 ratio—including the lowest level offenders.

September 5, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Friday, September 03, 2021

"Inside the Black Box of Prosecutor Discretion"

The title of this post is the title of this new article authored by Megan Wright, Shima Baradaran Baughman and Christopher Robertson. Here is its abstract:

In their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year.  More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice.  To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion.  We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder.  We do not know what sorts of limits, supervision, or guidelines prosecutors work within. And we do not know what sorts of information prosecutors rely upon, when making their decisions.  Prosecutors’ decisions have accordingly been called a “black box” for their inscrutability.

Until now.  We recruited over 500 prosecutors nationwide, and had them charge an identical case given identical substantive law, specify the plea bargain terms that they would seek, and explain their decisions.  We also learned about their internal office guidelines and procedures, and the information they rely upon when making charging and bargaining decisions.

Our study tells a story of surprising severity in how prosecutors dispose of a relatively mild case with no harm to victims, creating potentially devastating consequences for an offender suffering from apparent mental illness.  Taking advantage of our vignette-survey design, which presents the exact same case to hundreds of prosecutors, we also document wild heterogeneity in prosecutor charging practices, with some dismissing the case out of hand and others demanding months or years of incarceration.  We also find that many prosecutors lack meaningful guidelines or supervision.  Nonetheless, in our review of their qualitative explanations, we also find prosecutors aspiring to do justice, concerned about harm to victims and the rehabilitation of offenders, and considering their mental health and financial wherewithal.  From these findings, we shed light in an otherwise theoretically rich but empirically lacking area of criminal scholarship.

September 3, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Thursday, September 02, 2021

Realizing that Prez Biden is now officially behind Prez Trump's clemency pace

Gearing up for this awesome series of panels later this month on "The Future of the President’s Pardon Power: 2021 Clemency Panel Series," and particularly thinking about Prez Trump's record for this first panel on "Donald Trump’s Theatre of Pardoning," it dawned on me that it was around this time in 2017 that Prez Trump issued his very first clemency grant.  Specifically, as noted in this post, on August 25, 2017, President Donald Trump pardoned former Maricopa County Sheriff Joe Arpaio.  

Fast forward four years, and we are now into September of the first year with President Biden in the oval Office and he has not yet used his clemency pen one single time.  Being behind Prez Trump's unimpressive pace is especially troubling given that candidate Joe Biden promised to "broadly use his clemency power for certain non-violent and drug crimes" and there is an on-going pandemic that continues to harmfully impact a (now growing) federal prison population as well as thousands of low-risk offenders released to home confinement facing possible return to prison. 

I have highlighted in a number of prior posts how disappointing the Biden Administration's criminal justice record has been so far.  But his clemency record (or lack thereof) represents the most tangible and worrisome example of this Administration's apparent affinity for the (broken) political and legal status quo on various federal criminal justice matters.

A few of many prior related posts:

September 2, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Wednesday, September 01, 2021

Might SCOTUS be interested in taking up victim rights issues surrounding the Jeffrey Epstein case?

I find it somewhat surprising that the US Supreme Court has not yet ever taken up any cases dealing with the Crime Victims' Rights Act (CVRA), the 2004 legislation which significantly expanded the statutory rights of federal crime victims and creates duties on federal courts to ensure these rights are respected.  But, as highlighted by this new Politico article, headlined "Jeffrey Epstein accuser asks Supreme Court to uphold victims' rights," a high-profile case now provides them with a remarkable new opportunity to take up CVRA issues.  Here are the basics:

A woman who accused Jeffrey Epstein of sexually abusing her beginning when she was 14 is asking the Supreme Court to rule that federal prosecutors violated her rights by failing to consult her before cutting what critics have dubbed a sweetheart deal with the since-deceased financier and philanthropist.

The so-called nonprosecution agreement precluded U.S. authorities in south Florida from bringing federal charges against Epstein, despite similar allegations from dozens of women, if Epstein pleaded guilty to two state felonies related to soliciting a minor for sex.

Lawyers for Courtney Wild are asking the justices to overturn an appeals court ruling from June that held that Wild could not use a civil suit to enforce her rights under the Crime Victims’ Rights Act, a law Congress passed in 2004 to guarantee victims of crime certain protections in the federal criminal justice system.

The 7-4 ruling from the full bench of the 11th U.S. Circuit Court of Appeals called the government’s actions in the case “shameful,” but concluded that while the statute gives victims rights to jump into federal criminal proceedings, it doesn’t allow them to sue when no such case was ever filed.

“The en banc decision leaves the Government free to negotiate secret, pre-indictment non-prosecution agreements without informing crime victims,” attorneys Paul Cassell, Brad Edwards and Jay Howell wrote in the high court filing.

Over at The Volokh Conspiracy, Paul Cassell yesterday had this lengthy post about his new cert petition under this full headline: "Was it Lawful for the Justice Department to Reach a Secret Non-Prosecution Agreement with Jeffrey Epstein Without Telling His Victims?: My cert petition to the U.S. Supreme Court asks it review the Eleventh Circuit en banc's decision concluding that Epstein's victims cannot enforce their right to confer with prosecutors under the Crime Victims' Rights Act because the Department never formally filed charges against Epstein." Here is how his post gets started (with links from the original):

Today I filed a cert petition with the U.S. Supreme Court, asking it to review whether crime victims can enforce their rights under the Crime Victims' Rights Act (CVRA) before prosecutors file charges.  The petition, filed by one of the nation's leading crime victims' attorneys, Bradley J. Edwards, and me on behalf of one of Epstein's victims — Courtney Wild — seeks review of a 7-4 en banc decision from the Eleventh Circuit.  The Circuit held that the CVRA is only triggered when prosecutors file federal charges. Before then, according to the Eleventh Circuit, prosecutors are free to conceal from victims any deal that they may strike with the target of a federal investigation — as they did in the Epstein case.  This issue has sweeping implications for the proper enforcement of the CVRA, and we hope that the Court grants Ms. Wild's petition to review this very important legal question.

September 1, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (2)

Tuesday, August 31, 2021

"Donald Trump’s Theatre of Pardoning: What Did We Learn?"

Clemency-Series_for-web-and-email2The title of this post is the title of this online panel now scheduled for two week from today and the first in a terrific series of online panels that will explore in depth the federal clemency powers.   As I detailed in this prior post, this series is jointly organized by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law, the Collateral Consequences Resource Center, the Federal Sentencing Reporter, and the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance at Villanova University Charles Widger School of Law. 

A whole lot of folks are doing great work putting this series together, and Margaret Love merits extra praise for her efforts and for helping to assemble writings on these timely topics in Volume 33, Issue 5 of the Federal Sentencing Reporter (which largely provides the foundation for these panels).  Here are more details about this first panel:

Donald Trump’s Theatre of Pardoning: What Did We Learn?

Tuesday, September 14, 2021 | 12:30 – 2:00 p.m. EDT | Zoom  (Register here)

This panel will examine the unusual nature of President Donald Trump’s pardoning, looking at the grants themselves and the process that produced them.  Professors Bernadette Meyler and Frank Bowman, both scholars of the pardon power, will look to history for anything comparable to Trump’s use of the pardon power, and comment on its implications for the role that pardon has historically played in the U.S. justice system.  Amy Povah will share her experiences as someone who was personally involved in recommending cases to the White House at the end of the Trump Administration.  Kenneth Vogel will share his experiences as a journalist covering Trump’s pardons for the New York Times.  This panel will set the stage for the two subsequent panels about the future of presidential pardoning, by asking basic questions about the role of a regular pardon process and the result of it having been sidelined by Trump.  It will also consider whether Trump’s pardons were an aberration or the predictable result of trends in pardoning over the past thirty years.

Panelists:

Frank Bowman, Floyd R. Gibson Missouri Endowed Professor of Law, University of Missouri School of Law
Bernadette Meyler, Carl and Sheila Spaeth Professor of Law, Stanford Law School
Amy Povah, founder, CAN-DO Justice through Clemency
Kenneth Vogel, New York Times

Moderator:

Margaret Love, executive director, Collateral Consequences Resource Center and former U.S. Pardon Attorney

August 31, 2021 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Might any Justices be intrigued by notion that Eighth Amendment originalism makes the Boston Marathon bomber's death sentence suspect?

I have always been intrigued by writings by Michael J.Z. Mannheimer making originalist claims about the Eighth Amendment as a unique and distinctive limit on federal punishments.  As he explains in "Cruel and Unusual Federal Punishments," the framers and ratifiers of the Eighth Amendment were particularly concerned about an oppressive federal government imposing  excessive punishments, and so they expected that "state law should be the benchmark for determining whether a federal punishment is 'cruel and unusual'."  Particularly because many federal  criminal laws and sentencing provisions are now particularly harsh when compared to state benchmarks — think many federal drug and gun mandatory minimums — Mannheimer's approach to the Eighth Amendment could have considerable modern purchase.  And, since this idea seems firmly grounded in originalism, one might hope that serious originalists might at least consider this idea when considering a notable federal punishment.

These matters are on my mind today because Professor Mannheimer just filed this interesting amicus brief in  US v. Tsarnaev, which just happens to involve a notable federal punishment for a notable criminal defendant.  Here is part of the brief's summary of argument:

In 1783, faced with a request by the Articles of Confederation Congress for unanimous consent by the States to implement a new impost on goods, Massachusetts assented.  But it did so only with conditions.  One condition was that, in enforcing the proposed impost within Massachusetts, the central government must not impose upon a violator of the impost law any “punishments which are either cruel or unusual in this Commonwealth.”  Georgia, New Hampshire, and South Carolina set the same condition, substituting “State” for “Commonwealth.”  Thus, a scant six years before the Bill of Rights was proposed by Congress and submitted to the States, we see a precursor to the Eighth Amendment in these state impost ratifications, which used language nearly identical to that which would appear in the Eighth Amendment.  And that language was State-specific; the measure of what punishments qualified as “cruel or unusual” was to be determined on a State-by-State basis, according to what qualified as “cruel or unusual” punishment in each State.

When the Eighth Amendment was drafted only a few years later, the State-specific understanding of this phrase remained. Coupled with the word “cruel,” unusual meant “harsher than is permitted by the law of long usage and custom,” i.e., the common law. And, of course, the common law differed in each State. More importantly, the framers and ratifiers of the Eighth Amendment understood that the common law differed by State.

This State-specific understanding of the term “cruel and unusual punishments” follows directly from the goals of the Anti-Federalists in demanding a bill of rights. The Anti-Federalists initially opposed ratification of the Constitution because they feared that the outsized power of the proposed new federal government would lead to both the annihilation of the States as sovereign entities and the destruction of individual rights. These two fears were intertwined: If the new central government were to create a parallel and plenary system of laws, it would render the States irrelevant and permit the central government to sidestep the common-law rights Americans had fought and died for only a few years before. These common-law rights had been enshrined in state constitutions and laws, but because the proposed federal government would be acting on the citizens directly, it would not be bound to observe those rights.

The Anti-Federalists’ solution was to constrain the new federal government in the same ways that the States constrained themselves. This meant, in some instances, calibrating federal rights to state norms, thereby preserving state power and individual rights simultaneously by retaining the primacy of the States in protecting common-law rights.  This is how the Cruel and Unusual Punishments Clause was to operate, protecting the common-law right against punishments unknown to the law by positing state law as the reference point, the benchmark of “unusualness.” “Cruel and unusual” meant “harsher than is permitted in the particular jurisdiction.”  With this understanding in place, moderate Anti-Federalists gave their assent to ratification and a Nation was born...

The people of Massachusetts have effectively turned their face against the death penalty, believing it to be an inappropriate method of punishment within their Commonwealth.  Just like the Commonwealth’s conditional assent to the 1783 confederal impost, the Anti-Federalists’ assent to ratification on condition that a bill of rights be adopted preserves the Commonwealth’s authority to set the outer bounds of punishment for crimes committed entirely within its borders.  The core, irreducible meaning of the Eighth Amendment is that this judgment is the Commonwealth’s to make.

The federal government may not impose capital punishment in this case because the death penalty, in the most fundamental, literal meaning of the words, is “cruel and unusual punishment” in Massachusetts.

Of course, substantive Eighth Amendment issues are not directly in front of the Supreme Court in Tsarnaev because the First Circuit reversed the Boston Marathon bomber's death sentence on procedural grounds. But the good professor urges SCOTUS to instruct the lower courts to address this matter if it were to at some point remand the case to the First Circuit.

August 31, 2021 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Notable response to notable attack on conservatives role in modern criminal justice reform

Lars Trautman and Brett Tolman have this interesting new Washington Examiner commentary headlined, "No, criminal justice reform isn’t causing the current crime wave." Here are excerpts (with links from the original):

Conservative criminal justice reformers have faced occasional skepticism over our tried-and-true criminal justice solutions, but never something quite so outlandish as a recent suggestion, by an avowed conservative, no less, that conservative reformers somehow bear blame for rising violent crime in liberal bastions such as New York City and Portland.

Sean Kennedy, in his recent Washington Examiner article , attacks our organization, Right on Crime, using just such an argument.  Kennedy actually acknowledges our record of helping Texas and other conservative states simultaneously reduce their crime rates, prison populations, and criminal justice spending.  But he then claims, without evidence and employing a classic logical fallacy , that this activity then caused subsequent increases in crime in Texas.  Note that he makes this claim even though crime spiked at exactly the same time he refers to in many states where none of our reforms were enacted....

But those of us who have served in law enforcement, as prosecutors or in corrections, have learned that if you invest properly in police, evidence-based programming, and prison alternatives, you can consequently achieve reductions in crime, recidivism, and ultimately prison construction costs.  Further, the evidence is clear that it is the certainty and not the severity of punishment that deters potential criminals.  A few more years on a potential sentence doesn’t change many minds about crime — it’s the long odds of getting away with it entirely.

Too often, people do get away with murder and a host of other crimes.  Homicide clearance rates nationally hover around 50%. Whether a killer meets justice is a coin flip . If you’re worried about public safety, it’s more productive to spend your time improving clearance rates, not bemoaning the elimination of ineffective mandatory minimums for nonviolent offenses.

This is why we are so adamant about reducing our overreliance on prison beds and other costly, unproductive interventions so that we can redirect this money and focus toward law enforcement and other strategies that actively improve our crime prevention and investigative capabilities.  Practically speaking, this means more funding for police departments, especially homicide and other specialized units focusing on serious and violent crime — a commonsense solution backed by research.  It also means helping shift to others, such as social workers and truant officers, at least a few of the dozen different jobs we currently expect law enforcement to complete, so that police can concentrate on actual police work.

August 31, 2021 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

Monday, August 30, 2021

Sixth Circuit invents another extra-textual limit on what can permit a sentence reduction under 3582(c)(1)(A), including one in contradiction of USSC guidelines

In this post earlier today, I noted and criticized the Third Circuit's work in US v. Andrews, No. 20-2768 (3d Cir. Aug. 30, 2021) (available here), for its embrace of extra-textual categorial exclusions as to what might qualify as extraordinary and compelling reasons to support a sentence-reduction motion under 18 U.S.C. § 3582(c)(1)(A).  Turns out, today was a special day for this kind of extra-textual policy work by the courts, as the Sixth Circuit in US v. Hunter, No. 21-1275 (6th Cir. Aug. 30, 2021) (available here), also decided to make up rules in this context:

As explained further below, the text and structure of § 3582(c)(1)(A) limit a district court’s discretion to define “extraordinary and compelling” in two ways relevant to this case. First, non-retroactive changes in the law, whether alone or in combination with other personal factors, are not “extraordinary and compelling reasons” for a sentence reduction. Second, facts that existed when the defendant was sentenced cannot later be construed as “extraordinary and compelling” justifications for a sentence reduction.

I have explained in a number of prior posts why the "first" point made by the Hunter court is unsupported by the text of 3582(c)(1)(A) (see here)  But the "second" point from the Hunter panel seems especially problematic and an especially misguided policy invention.  Congress instructed, in 28 U.S.C. § 994(t), that the US Sentencing Commission "describe what should be considered extraordinary and compelling reasons for sentence reduction," and the USSC has expressly stated, in USSG §1B1.13 application note 2, that facts that existed when the defendant was sentenced can later support a finding of "compelling and extraordinary" reasons for a reduction.  Here is this USSC application note in full:

2. Foreseeability of Extraordinary and Compelling Reasons. — For purposes of this policy statement, an extraordinary and compelling reason extraordinary and compelling reasons need not have been unforeseen at the time of sentencing in order to warrant a reduction in the term of imprisonment.  Therefore, the fact that an extraordinary and compelling reason reasonably could have been known or anticipated by the sentencing court does not preclude consideration for a reduction under this policy statement.

So, to review, Congress tasked the Sentencing Commission with describing how district courts should assess extraordinary and compelling reasons for a sentence reduction, and the USSC said that there is no preclusion on the consideration of facts known at the time of sentencing.  But, in contravention of the instructions of Congress and the work of the USSC, this Sixth Circuit panel has decided it can and should make up its own misguided rule that facts that existed when the defendant was sentenced cannot contribute to providing extraordinary and compelling reasons for a reduction.

As I see the Hunter opinion, it really seems like the panel was troubled by a murderer getting his sentence reduced to "only" 21 years in prison.  If the substantive merits of the reduction  so bothered the panel, I sure wish it would have explained its concerns with a focus on how the 3553(a) factors were weighed, rather than by making up a lot of problematic law concerning what cannot serve as the basis for finding an extraordinary and compelling reason.   As I have noted before, Congress set forth one (partial) express exclusion in § 994(t): "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason."  In light of this clear (and limited) statutory command, all other limits created by circuit courts appear to me to be extra-textual policy-making, not textual statutory interpretation.

August 30, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Prez Biden reportedly considering, for home confinement cohort, clemency only for "nonviolent drug offenders with less than four years" left on sentence

The New York Times has this notable new report, headlined "White House Weighs Clemency to Keep Some Drug Offenders Confined at Home," which suggests a limited subclass of the home confinement cohort may the focal point for clemency efforts by the Biden White House.  Here are the details, many of which are not that new, but all of which are important as efforts move slowly forward to help this cohort:

President Biden is considering using his clemency powers to commute the sentences of certain federal drug offenders released to home confinement during the pandemic rather than forcing them to return to prison after the pandemic emergency ends, according to officials familiar with internal deliberations.

The legal and policy discussions about a mass clemency program are focused on nonviolent drug offenders with less than four years remaining in their sentences, the officials said. The contemplated intervention would not apply to those now in home confinement with longer sentences left, or those who committed other types of crimes.

The notion of clemency for some inmates is just one of several ideas being examined in the executive branch and Congress. Others include a broader use of a law that permits the “compassionate release” of sick or elderly inmates, and Congress enacting a law to allow some inmates to stay in home confinement after the pandemic.

Interviews with officials in both the executive branch and Congress, most of whom spoke on the condition of anonymity to discuss sensitive deliberations, suggest there is broad support for letting nonviolent inmates who have obeyed the rules stay at home — reducing incarceration and its cost to taxpayers. But officials in each branch also foresee major challenges and have hoped the other would solve the problem....

Inmate advocates and some Democratic lawmakers have urged the Biden legal team to rescind the Trump-era memo and assert that the bureau can lawfully keep the prisoners in home confinement even after the pandemic ends.

But The New York Times reported last month that the Biden legal team had concluded that the memo’s interpretation of the law was correct, according to officials briefed on the internal deliberations. Officials have subsequently characterized that scrutiny as a preliminary review and said that a more formal one was underway, but suggested that a reversal of the Trump-era legal interpretation continued to be highly unlikely.

Against that backdrop, in a little-noticed comment at a press briefing this month, the White House press secretary, Jen Psaki, let slip that Mr. Biden was taking a closer look at clemency to help the subgroup who are nonviolent drug offenders....  In interviews, officials have subsequently confirmed that focus.  As a first step, the Justice Department will soon begin requesting clemency petitions for drug offenders who have less than four years left on their sentence, which will then be reviewed by its pardon office, they said.

It is unclear whether the Biden team is leaning toward commuting the sentences of the nonviolent drug offenders to home confinement, reducing the length of their sentences to bring them within the normal window for home confinement or a mix of the two.  The officials said focusing on nonviolent drug offenders, as opposed to other types of criminals, dovetailed with Mr. Biden’s area of comfort on matters of criminal justice reform. In his campaign platform, Mr. Biden had said he pledged to end prison time for drug use alone and instead divert offenders to drug courts and treatment.

Inimai Chettiar, the federal director of the Justice Action Network, called the idea a good start but also questioned the basis for limiting it to some nonviolent drug offenders, saying there was “no scientific evidence” for restricting the help to that category.  She suggested another explanation. “Politically, it’s an easier group to start with,” Ms. Chettiar said.

In addition, officials said, the Justice Department is studying other options that could help keep different groups from being forced back into prison.  Another idea under consideration is to petition the courts to let some individual inmates stay in home confinement under a “compassionate release” law. While the compassionate release law is normally used to permit terminally ill inmates to rejoin their families shortly before dying, the statute includes a broad standard for what a judge could decide warrants a sentence reduction — “extraordinary and compelling reasons” — that is not defined and might be applied to the pandemic-era home confinement population.

Kristie Breshears, a spokeswoman for the Bureau of Prisons, said additional options included expanding a pilot program that allows for the early release of older inmates in order to keep some who are over the ago of 60 in home confinement, and placing some inmates in halfway houses for 12 months.

Separately, Senators Richard J. Durbin of Illinois and Charles E. Grassley of Iowa — the top Democrat and Republican on the Senate Judiciary Committee — have also been discussing potential bipartisan legislation that would solve the problem in a simpler way by explicitly authorizing the Justice Department to extend home confinement after the pandemic.

At a hearing in April, Mr. Grassley joined Democrats in voicing support for allowing inmates in home confinement to stay there.  Taylor Foy, a spokesman for Mr. Grassley, said his office had drafted legislation that month that would let “inmates moved to home confinement during the pandemic complete their sentences there rather than returning to prison after the pandemic ends.”

Mr. Durbin had been among those who urged the Biden administration to instead reinterpret existing law as permitting perpetual home confinement for those inmates who were placed there during the emergency period. In a statement, Mr. Durbin embraced the idea of new legislation, but also said he did not think it would be easy — or necessary.  The prospects for legislation in “an evenly divided Senate are uncertain,” he said, reiterating his view that “the Biden administration has ample executive authority to immediately provide the certainty” to the inmates.

I would be eager it see an "all of the above" and more approach move forward in the months ahead. Prez Biden should certainly consider commuting many of the sentences of nonviolent drug offenders on home confinement (and also many others) AND there should be a continued push to seek sentence reductions in the courts for others on home confinement (and also many others) AND BOP should expand its pilot program for releasing older offenders into home confinement AND Senators Grassley and Durbin should keep pushing forward with legislation to expand the authority for placement into home confinement and to prevent those so placed from having to return to prison absent misbehavior.

When campaigning for his current job, Prez Biden promised that he would "take bold action to reduce our prison population."  But the federal prison population has so far grown significantly in the first seven month of the Biden Administration.  Specifically, the federal prison population has grown by over 4000 persons according to BOP numbers, from 151,646 total inmates on Jan 21, 2021 to 155,730 total inmates on Aug 26, 2021.  To date, I cannot really think of any actions (let alone bold ones) that Prez Biden has taken to reduce the federal prison population.  Talk of some clemency action is heartening, but just a start.  And whatever clemency efforts are made, they should extend beyond just a limited group who are already home.

August 30, 2021 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"A History of Early Drug Sentences in California: Racism, Rightism, Repeat"

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

For the past 100 years, harsh drug sentences have had extraordinary support from the public.  Historically enthusiasm for drug prohibition often coincides with affinities for summary justice and authoritarian social control.  Escalations of drug sentences in California from 1881 to 1961 followed a pattern of collective myth making and value signaling that insisted opiates, cocaine, and cannabis were extremely dangerous, led to other crime, and prevalently were used and sold by immigrants and other despised groups.  Demands for severe punishment seemed to peak twice, in the 1920s and 1950s, in response to exaggerated threats such as “dope peddlers” targeting children and profitable “dope rings” controlled by subversive foreigners.  Amplified by a self-seeking, robust news media and a multitude of fraternal, civic, and religious organizations, the frightful construction of illicit drugs seemed to demand an uncompromising response. Increasing terms of incarceration seemed direct, simple, and quantifiable.

But white voters always understood that drug laws targeted immigrants and communities of color, and law enforcers used extreme penalties as leverage to pursue corrupt and racist prerogatives unrelated to reducing drug use.  Drug penalties in California were developed over many decades with almost extreme levels of participation by anti-drug activists and law enforcers.  Appearing somehow scientific, the resulting arrays of penalties implied that the cruelest sentences were reserved for the truly blameworthy, when in fact they were reserved for the marginalized.  Moreover, several legal conventions born of these penalty structures — mandatory minimums, the distinction between user and seller, punishment of addiction itself, and presumptions arising from drug quantities — still exacerbate the oppressive nature of drug statutes.  As California’s drug sentences increased and complexified over the first half of the 20th century, a destructive drug law enforcement regime sanctioned by white voters was unleashed on marginalized communities in Los Angeles.

August 30, 2021 in Drug Offense Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Third Circuit invents some extra-textual limits on what might permit a sentence reduction under 3582(c)(1)(A)

Over the last year, the federal circuits have started issuing various opinions concerning what factors may serve as the basis for compassion release in the wake of the FIRST STEP Act allowing courts to consider sentence-reduction motions under 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  Of course, Congress long ago expressly instructed, in 28 U.S.C. § 994(t), that the US Sentencing  Commission "shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples."  But the Commission has not had a quorum in the nearly three years since the FIRST STEP Act became law, so courts have had to figure out these matters on their own for now.

Given the statutory text enacted by Congress in 1984 and in 2018, I think the first big circuit ruling in this space had it right.  Specifically, the Second Circuit in September 2020 was the first circuit to rule in Zullo/Brooker, quite rightly in my view, that district courts now have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" to justify a sentence reduction under 3582(c)(1)(A).  That seemed right because Congress nowhere placed in the statutory text any categorical limits on what kinds of factors could qualify as "extraordinary and compelling."  Congress did set forth one (partial) express exclusion in § 994(t): "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason."  But this clear statutory command always led me to conclude that (1) any other factor could possibly be considered an extraordinary and compelling reason, and also (2) that rehabilitation of the defendant combined with other factors could be considered an extraordinary and compelling reason.

I provide this backstory to explain why I am troubled by part of the Third Circuit's work today in US v. Andrews, No. 20-2768 (3d Cir. Aug. 30, 2021) (available here).  The very first sentence of the Andrews ruling has a Kafka-esque "only in America" quality to it: "Eric Andrews is serving a 312-year sentence for committing a series of armed robberies when he was nineteen."  That a person at age 19 can get a 312-year sentence for a series of robberies strikes me as quite extraordinary and quite compelling, but the district court did not see matters that way.  Specifically, as described by the panel opinion, the district court decided that "the duration of Andrews’s sentence and the nonretroactive changes to mandatory minimums could not be extraordinary and compelling as a matter of law."  Of course, there is no statutory text enacted by Congress that sets forth this "as a matter of law."  But the Third Circuit panel here blesses the extra-textual notion that courts can and should invent some new categorial exclusions "as a matter of law" regarding what might qualify as extraordinary and compelling.  Sigh.

Here is some of the Third Circuit panel discussion (with some cites and parentheticals removed):

We begin with the length of Andrews’s sentence.  The duration of a lawfully imposed sentence does not create an extraordinary or compelling circumstance.  “[T]here is nothing ‘extraordinary’ about leaving untouched the exact penalties that Congress prescribed and that a district court imposed for particular violations of a statute.” United States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021). “Indeed, the imposition of a sentence that was not only permissible but statutorily required at the time is neither an extraordinary nor a compelling reason to now reduce that same sentence.” United States v. Maumau, 993 F.3d 821, 838 (10th Cir. 2021) (Tymkovich, C.J., concurring).  Moreover, considering the length of a statutorily mandated sentence as a reason for modifying a sentence would infringe on Congress’s authority to set penalties. See Gore v. United States, 357 U.S. 386, 393 (1958) (“Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility, these are peculiarly questions of legislative policy.” (citation omitted)).

The nonretroactive changes to the § 924(c) mandatory minimums also cannot be a basis for compassionate release.  In passing the First Step Act, Congress specifically decided that the changes to the § 924(c) mandatory minimums would not apply to people who had already been sentenced.  See First Step Act § 403(b).  That is conventional: “[I]n federal sentencing the ordinary practice is to apply new penalties to defendants not yet sentenced, while withholding that change from defendants already sentenced.”  Dorsey v. United States, 567 U.S. 260, 280 (2012).  “What the Supreme Court views as the ‘ordinary practice’ cannot also be an ‘extraordinary and compelling reason’ to deviate from that practice.” United States v. Wills, 997 F.3d 685, 688 (6th Cir. 2021).  Interpreting the First Step Act, we must “bear[] in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 320 (2014)... And when interpreting statutes, we work to “fit, if possible, all parts” into a “harmonious whole.” Brown & Williamson, 529 U.S. at 133 (internal quotation marks omitted) (quoting FTC v. Mandel Bros., Inc., 359 U.S. 385, 389 (1959)).  Thus, we will not construe Congress’s nonretroactivity directive as simultaneously creating an extraordinary and compelling reason for early release.  Such an interpretation would sow conflict within the statute.

This ruling and others like it seem to me to have the framing wrong.  Sure, a lawfully imposed sentence, even one based on now-reduced mandatory minimums, will not and should not alone  always qualify in every single case as the sole basis for compassionate release.  (This is what making a change retroactive will do "as a matter of law," namely make every sentence imposed based on that law always eligible for a reduction in every single case.)  Defendants in these compassionate release cases are not arguing that a lawful, now-changed sentence serves as the sole basis for a reduction in all cases, rather they are just saying such facts can and should be considered by judges along with other factors in assessing whether there are extraordinary and compelling reasons for sentence reduction.  Since Congress has not expressly stated that these are improper factors, they can only become unlawful if and when judges start making up extra-textual limits on application of statutory law here.

A few of many, many prior related posts:

August 30, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Justice Counts officially unveils its new 50-State scan of all sorts of criminal justice data

7ee4529a-2a57-c490-a090-f44255823417I have previously blogged about the need for better national criminal justice data, and also about a new effort to fill data gaps by the Council of State Governments (CSG) Justice Center through a project called "Justice Counts."  (Some of many posts on these topics can be found below.)  I was pleased this morning to get a new email about the CSG effort under the heading "Justice Counts Unveils a New 50-State Scan of Criminal Justice Data."  This email is available at this link, and here is some of its texts and links:

Policymakers are often forced to make critical decisions using limited or stale criminal justice data.  Over the past year, every trend from crime to revocations has shifted quickly and dramatically.  Facing significant challenges, state leaders need up-to-date information from across the justice system, presented in a digestible way.

As part of the Bureau of Justice Assistance’s Justice Counts initiative, researchers from Recidiviz and The Council of State Governments Justice Center conducted a 50-state scan of publicly available, aggregate-level corrections and jails data.

The national dashboard demonstrates that while policymakers in several states have access to up-to-date information, data collection still has a long way to go. 

View the national dashboard

Each state’s data dashboard provides a central, practical resource for stakeholders to identify gaps and inconsistencies in data reporting.
 
View your state’s dashboard
 
The scan looked at the availability of eight core corrections indicators scattered across hundreds of agency reports, as well as a review of statewide and county jail confinement rates across all 50 states.  The scan shows how much — and how little — state policymakers have to work with.

Recent related posts:

August 30, 2021 in Data on sentencing, Detailed sentencing data, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Friday, August 27, 2021

RFK killer. Sirhan Sirhan, recommended for parole after decades of denials

As the saying goes, if at first you do not succeed, try, try again.  As detailed in this Los Angeles Times article, after trying again and again to get a positive parole recommendation, the assassin of Robert Kennedy, Sirhan Sirhan, today finally succeeded:

Sirhan Sirhan, the man convicted of assassinating Robert F. Kennedy at a Los Angeles hotel more than 50 years ago, was recommended for release by a California parole board Friday, the first step toward making him a free man.

The two-person panel Sirhan appeared before Friday granted parole, but the decision is not final.  Parole staff still have 90 days to review the matter.  After that, Gov. Gavin Newsom — or whoever might replace him following next month’s recall election — could still decide to block Sirhan’s release.

Sirhan, then a 24-year-old Palestinian immigrant who had written a manifesto calling for Kennedy’s death, shot the senator at the since-demolished Ambassador Hotel on Wilshire Boulevard in Los Angeles in 1968. Kennedy was considered a leading candidate for president and had just won primaries in South Dakota and California at the time of his assassination.  Sirhan admitted to the killing in 1969 and has been in prison for 53 years.

The board granted his release Friday, in part, after receiving letters of support from two members of the slain senator’s family. Robert F. Kennedy Jr., who has previously expressed doubt about Sirhan’s guilt, said he believed his father might extend mercy to his own killer.  “While nobody can speak definitively on behalf of my father, I firmly believe that based on his own consuming commitment to fairness and justice, that he would strongly encourage this board to release Mr. Sirhan because of Sirhan’s impressive record of rehabilitation,” Kennedy Jr. wrote in a letter submitted in advance of Friday’s hearing.

Douglas Kennedy said that while he’d lived in fear of Sirhan for years, he saw him now as “worthy of compassion and love.” “I really do believe any prisoner who is found to be not a threat to themselves or the world should be released,” Douglas Kennedy wrote. “I believe that applies to everyone, every human being, including Mr. Sirhan.”

The Los Angeles County Sheriff’s Department submitted a letter opposing Sirhan’s release, on behalf of the Kennedy family.

Erin Mellon, a spokeswoman for Newsom, said the governor will review Sirhan’s case if it is presented to him....

Angela Berry, Sirhan’s attorney, says the 77-year-old has not been accused of a serious violation of prison rules since 1972 and that prison officials have deemed him a low risk for violence. Sirhan first became eligible for parole in 1972. Between 1983 and 2006, he was granted parole hearings every one to two years, but was always denied. Beginning in 2006, those hearings were held just twice a decade. He was last denied release in 2016.

The recommendation for Sirhan’s release also came without opposition from L.A. County prosecutors, who are barred from fighting release at parole hearings under a policy enacted by Dist. Atty. George Gascón. While Gascón’s policy had been in effect for nearly nine months, it attracted new scrutiny this week because of Sirhan’s case. Gascón has said it should be up to the parole board to determine an inmate’s suitability for release, rather than prosecutors who are simply relitigating the facts of old cases, sometimes decades later....

Critics of Gascón have said the parole policy is indicative of a broader abandonment of victims under his administration. Some victims have complained to The Times that they felt helpless without an advocate present when they went to oppose the release of a loved one’s killer earlier this year. L.A. County Sheriff Alex Villanueva, a staunch opponent of Gascón, has also said he would send staff to aid victims at parole hearings if Gascón wouldn’t send prosecutors, but he has yet to explain how often he’s done so or what impact, if any, the move has had in such cases....

While critics of Gascón have claimed the parole policy will end with a flood of violent criminals returning to the streets, data suggest otherwise. Records show the state parole board only granted release in about 19% of all cases it heard from 2018 to 2020, and that does not factor in cases where Newsom later blocked an inmate’s release.

It will be interesting to see if Gov. Newsom says anything publicly about this case before the recall election in a few weeks at a time when his rivals are accusing him of being "soft on crime."

August 27, 2021 in Celebrity sentencings, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Amazing line-ups for "The Future of the President’s Pardon Power: 2021 Clemency Panel Series"

Clemency-Series_for-web-and-email2

I am so very pleased and proud to be helping to put on a terrific series of online panels to explore in depth the federal clemency powers.  This series is jointly organized by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law, the Collateral Consequences Resource Center, the Federal Sentencing Reporter, and the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance at Villanova University Charles Widger School of Law. 

Though a whole lot of folks are doing great work putting this series together, the indefatigable Margaret Love merits extra praise for helping to turn a general idea into this great series.  She also deserves special recognition for her work helping to assemble writings on these timely topics in Volume 33, Issue 5 of the Federal Sentencing Reporter (which largely provides the foundation for these panels.)

The series’ three panels will discuss the use of the pardon power by President Donald Trump and how it may influence pardoning in the future. They will consider whether Trump’s irregular pardoning may have been a blessing in disguise by prompting much-needed reforms in law and in practice.

PANEL 1: Donald Trump’s Theatre of Pardoning: What Did We Learn?

September 14, 2021 | 12:30 – 2:00 p.m. EDT | Zoom

Panelists:

 

PANEL 2: Supplementing the Pardon Power: Second Looks and Second Chances

Tuesday, September 21, 2021 | 12:30 – 2:00 p.m. EDT | Zoom

Panelists:

 

PANEL 3: Managing the Pardon Power: Should the Justice Department Remain the Gatekeeper?

Tuesday, September 28, 2021 | 12:30 – 2:00 p.m. EDT | Zoom

Panelists:

August 27, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, August 26, 2021

California Supreme Court turns back broad challenge to state capital procedures

As detailed in this Los Angeles Times article, headlined "California’s top court declines to overhaul death penalty," a broad challenge to death penalty procedures was rejected by the California Supreme Court today.  Here are the basics:

The California Supreme Court on Thursday decided to leave the state’s death penalty law intact, refusing an entreaty from Gov. Gavin Newsom that would have overturned scores of death sentences.

In a unanimous decision, the state’s highest court said there was little legal support under state law for overhauling the law, as opponents of capital punishment urged. In fact, the court said, some of the precedents cited by defense lawyers actually undercut their position.

Defense lawyers had argued the state’s capital punishment law was unconstitutional because it failed to require jurors to unanimously agree beyond a reasonable doubt on the reasons why a defendant should be sentenced to death instead of life without possibility of parole. A decision to impose the death penalty also should be made beyond a reasonable doubt, the standard now used in deciding guilt, the lawyers said.

If the court had agreed, hundreds — if not all — death sentences would have had to be overturned because such decisions generally apply retroactively.

Justice Goodwin Liu, who wrote the ruling, said some of the cases cited by defense attorneys did not support their position. “If anything,” he said, they suggested “the ultimate penalty determination is entirely within the discretion of the jury.” The court did not reject the constitutional arguments raised by Newsom but said they did “not bear directly on the specific state law questions before us.”

In a concurring opinion, Liu said there was enough U.S. Supreme Court precedent to warrant reconsidering California’s death penalty rules in future cases. He noted that some other states have changed their capital punishment requirements as a result of more recent Supreme Court rulings on the 6th Amendment, which protects the trial rights of the criminally accused....

John Mills, who represented two scholars of the state Constitution as friends of the court, said the ruling and Liu’s concurrence have provided a road map for future challenges that may be more likely to succeed. He predicted death row inmates will soon bring the kinds of claims that Liu said might be persuasive but were not at issue in McDaniel’s appeal. “He was laying out some concerns that were not presented by Mr. McDaniel about the operations of the California death penalty statute that he is concerned may violate the federal Constitution,” Mills said. “Those issues remain an open question in California because they were not litigated in this case.”...

California has more than 700 inmates on death row, but legal challenges have stymied executions. Only 13 inmates have been executed since 1992, and Newsom imposed a moratorium on executions during his time in office.

The full 111-page opinion from the California Supreme Court is available at this link.

August 26, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Might Oklahoma really try to move forward with seven executions over the next six months?

The question in the title of this post is prompted by this new local article headlined "Oklahoma AG requests execution dates for seven state death row inmates." Here are the basics:

Oklahoma Attorney General John O’Connor late Wednesday asked the Court of Criminal Appeals to set execution dates for seven death row inmates, including Julius Jones. The action comes after the state put the death penalty on hold following the 2014 botched execution of Clayton Lockett, the 2015 execution of Charles Warner using the wrong drug, a review of the protocol and litigation.

O’Connor asked that Jones’ execution date be set for Oct. 28. Jones, who has waged a public relations campaign claiming innocence, is set for a Sept. 13 commutation hearing before the Pardon and Parole Board. However, with the O’Connor filing seeking an execution date, that could change to a clemency hearing a later date, said Tom Bates, Oklahoma Pardon and Parole Board director.

The board has scheduled a meeting for next week to discuss the potential resumption of executions and the scheduling of clemency hearings. Jones was convicted of the 1999 murder of Edmond businessman Paul Howell.

O’Connor asked the court to set a Feb. 10 execution date for James Allen Coddington, who was sentenced to death for the 1997 killing of Albert Hale in Oklahoma County. He also requested that a Dec. 30 execution date be set for Donald Anthony Grant. He was sentenced to death for the 2001 murders of Del City motel workers Brenda McElyea and Suzette Smith.

An Oct. 7 date was requested by John Marion Grant Grant, who was sentenced for the 1998 killing of Gray Carter, a prison kitchen worker at the Dick Connor Correctional Center in Hominy. Wade Greely Lay, sentenced to death for the 2004 killing of a Tulsa security guard Kenny Anderson, was petitioned to be sentenced on Dec. 9.

The court was also asked to set a Jan. 20 execution date for Gilbert Ray Postelle. Postelle was convicted at trial of killing four people in 2005 outside a trailer in Del City. He received the death penalty for two of the murders.

A execution date of Nov.18 was requested for Bigler Jobe Stouffer.  Stouffer was sentenced to death for the 1985 killing of Putnam City teacher Linda Reaves.

I believe the have only been four state executions nationwide since the start of the pandemic nearly 18 months ago, so I am inclined to assume that this request for multiple execution dates over the next six months from the Oklahoma AG is mostly a symbolic effort primarily intended to signal the AG's eagerness to move forward with executions and to keep capital proceedings moving along.  But when former US AG William Barr announced his intent in 2019 to restart federal executions after a long delay, I underestimated just how effectual a motivated AG could be in getting the machinery of death back in action.  So stay tuned.

August 26, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Notably high-profile cases now the focus of parole decision-making

Perhaps in part because the federal system abolished parole nearly 40 years ago through the Sentencing Reform Act of 1984, parole practices and parole reform often do not get the most attention in broad debates about criminal justice and sentencing policies.  But the majority of states still have parole as part of their justice systems, and this 2019 Prison Policy Initiative report makes the case that "most states show lots of room for improvement" in their parole practices.

I have general parole issues on the mind because two new press pieces about a couple of high-profile cases serve as a useful reminder of the import of parole decision-making and the array of actors who can impact this decision-making:

From The Hill, "Prosecutors for first time not opposing parole for RFK assassin Sirhan Sirhan"

Los Angeles prosecutors for the first time have decided not to oppose the release of Sirhan Sirhan, the man convicted of assassinating former Sen. Robert F. Kennedy (D-N.Y.) in 1968.  The Washington Post reported that Los Angeles County District Attorney George Gascón’s office is remaining neutral in the case and will not be present at Sirhan's parole hearing on Friday.

While prosecutors had opposed Sirhan’s release in 15 previous parole hearings, Gascón upon taking on his role in December 2020 said his office’s “default policy” would be to not attend parole hearings and to instead work to submit letters in support of inmates who have served mandatory minimums and no longer pose a threat to society. 

From The Guardian, "Black police groups call for ex-Black Panther jailed for 48 years to be released"

A coalition of current and retired Black police officers is calling for the release on parole of Sundiata Acoli, a former Black Panther member who has been incarcerated for 48 years for the 1973 murder of a New Jersey state trooper.

Four Black law enforcement groups have joined forces to press the case for Acoli’s parole almost half a century after he was arrested.  In an amicus brief filed with the New Jersey supreme court, they call his continued imprisonment “an affront to racial justice” and accuse the parole board of violating the law by repeatedly refusing to set the prisoner free.

August 26, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, August 25, 2021

"Crime trends and violence worse in California’s Republican-voting counties than Democratic-voting counties"

The provocative title of this post is the title of this press release from the Center on Juvenile and Criminal Justice promoting its new report titled "California’s Republican Counties Have Worse Crime Trends And Higher Violent Crime Rates Than Democratic Counties."  Here is much of the press release:

A report released today by the Center on Juvenile and Criminal Justice finds that, compared to the 35 California counties that voted Democratic in the 2020 presidential election, the state’s 23 Republican-voting counties have higher rates of violent crime, including homicides.

For decades, Republican candidates and elected officials have demanded a “get-tough” approach to crime that generated more arrests, more imprisonments, and longer prison sentences.  As a result, a person is 58 percent more likely to be arrested and 41 percent more likely to be incarcerated in a Republican-voting county than in a Democratic-voting one.  Likewise, 12 of the 13 highest-incarceration counties vote Republican, while 16 of the 18 lowest-incarceration counties vote Democratic.

But have the hardline approaches pursued by Republicans officials actually reduced crime?  Just the opposite.  Republican-voting counties are seeing lesser declines in crime and higher rates of crime, particularly violent offenses and homicides, compared to their Democratic-voting counterparts.

The report finds:

  • Violent and property crime rates have declined most rapidly in Democratic-voting counties.
  • Homicide rates in Republican-voting counties are now 28 percent higher than in Democratic-voting counties.
  • The homicide death rate among White people in Republican-voting counties is on par with people of color in Democratic-voting ones, challenging widely held beliefs about violence in urban communities of color.
  • Republican-voting counties experience higher rates of drug, alcohol, and gun deaths than Democratic-voting counties, particularly among White residents.
  • Republican-voting counties pay less in state and local taxes per capita but rely more heavily on California’s costly prison system.

The gaps between urban/suburban-Democratic and exurban/rural-Republican California are widening, contributing to extremist politics and intractable divisions. Thirty years ago, the state’s cities experienced the worst economic hardships and highest rates of violent crime. Today, these issues have shifted to its exurbs, small towns, and rural areas.

California, like the rest of the country, suffered a major increase in homicide in 2020. This disturbing development has prompted calls by Republicans, and some Democrats, to roll back criminal justice reforms and reinstate tougher arrest and imprisonment policies. Yet these “get-tough” campaigns ignore an important reality – that Democratic-voting counties, which are more likely to embrace progressive reform, now see fewer violent crimes and homicides per capita than Republican ones.

I lack the empirical chops (and the time with the start of a new semester) needed to dig into the particulars of this report to assess its analysis. I do know that the Center on Juvenile and Criminal Justice is a progressive organization "whose mission is to reduce society’s reliance on incarceration as a solution to social problems."  And I would be eager to hear from certain persons at Crime & Consequences, which is located in California and has folks blogging here with a distinct set of criminal justice views, about their take on this notable new report.

A few of many prior recent related posts:

August 25, 2021 in National and State Crime Data, Who Sentences | Permalink | Comments (0)

Unusual Fourth Circuit panel affirms federal convictions and death sentence for Charleston church shooter Dylann Roof

I noted in this post from May 2021 that an unusual Fourth Circuit panel had to be assembled to hear the capital appeal of Charleston church shooter Dylann Roof because all the member of the Fourth Circuit were recused.  The mass recusal resulted from the fact that now Circuit Judge Jay Richardson was in the U.S. Attorney’s Office in South Carolina in 2017 and the lead prosecutor on the Roof case.  And it meant that  Judge Duane Benton of the Eighth Circuit, Judge Kent Jordan of the Third Circuit and Senior Judge Ronald Gilman of the Sixth Circuit considered Roof's many issues on appeal.

That trio of judges today handed down a 149-page opinion in United States v. Roof, No. 17-3 (Aug. 25, 2021) (available here).  The per curiam opinion starts and concludes this way:

In 2015, Dylann Storm Roof, then 21 years old, shot and killed nine members of the historic Emanuel African Methodist Episcopal Church (“Mother Emanuel”) in Charleston, South Carolina during a meeting of a Wednesday night Bible-study group.  A jury convicted him on nine counts of racially motivated hate crimes resulting in death, three counts of racially motivated hate crimes involving an attempt to kill, nine counts of obstructing religion resulting in death, three counts of obstructing religion involving an attempt to kill and use of a dangerous weapon, and nine counts of use of a firearm to commit murder during and in relation to a crime of violence.  The jury unanimously recommended a death sentence on the religious-obstruction and firearm counts, and he was sentenced accordingly. He now appeals the convictions and sentence.  Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3595(a), we will affirm....

Dylann Roof murdered African Americans at their church, during their Bible-study and worship. They had welcomed him. He slaughtered them. He did so with the express intent of terrorizing not just his immediate victims at the historically important Mother Emanuel Church, but as many similar people as would hear of the mass murder. He used the internet to plan his attack and, using his crimes as a catalyst, intended to foment racial division and strife across America.  He wanted the widest possible publicity for his atrocities, and, to that end, he purposefully left one person alive in the church “to tell the story.” (J.A. at 5017.)  When apprehended, he frankly confessed, with barely a hint of remorse.

No cold record or careful parsing of statutes and precedents can capture the full horror of what Roof did. His crimes qualify him for the harshest penalty that a just society can impose.  We have reached that conclusion not as a product of emotion but through a thorough analytical process, which we have endeavored to detail here. In this, we have followed the example of the trial judge, who managed this difficult case with skill and compassion for all concerned, including Roof himself.  For the reasons given, we will affirm

In capital cases, it is pretty common for the losing party to seek en banc review. But, as was discussed in my May post, it is unclear whether and how an additional 12 judges would get appointed by designation in order to properly consider any en banc petition that might come next. Roof can, of course, proceed now to seek certiorari from the U.S. Supreme Court (which will surely happen eventually even if he does seek en banc review).

A few of many prior related posts:

August 25, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

"When the Conditions Are the Confinement: Eighth Amendment Habeas Claims During COVID-19"

The title of this post is the title of this new paper authored by Michael Zuckerman with an abstract now available via SSRN.  Here is that abstract:

The COVID-19 pandemic cast into harsher relief much that was already true about mass incarceration in the United States.  It also cast into harsher relief much that was already true about the legal barriers confronting people seeking to make its conditions more humane.  This Article offers a brief overview of the legal landscape as the COVID-19 crisis arose and then dives into surveying eight prominent federal cases involving habeas claims related to COVID-19 outbreaks at carceral facilities.  The Article then distills six key tensions from these cases and discusses their implications for future litigation and doctrine. 

Specifically, the Article addresses: (a) the relationship between habeas and classic “conditions of confinement” cases; (b) the nature of Eighth Amendment “deliberate indifference” in this context; (c) the efficacy and availability of class-wide procedures for adjudicating these kinds of claims; (d) issues involving federalism and comity, and how courts may source such concerns through exhaustion requirements; (e) whether temporary release is better conceived of under these circumstances as preliminary or final relief; and (f) the fraught interplay between rights and remedies.  The Article concludes by suggesting potential solutions for courts and legislatures.

August 25, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, August 24, 2021

NY Gov Andrew Cuomo leaves office with a (high-profile) clemency whimper

in a detailed report released early last year, the NYU Center for the Administration of Criminal Law documented the decline of clemency in New York state in modern time.  This report, titled "Taking Stock of Clemency in the Empire State: A Century in Review," starts this way:

Clemency in New York has long been declining, while the state’s prison population has grown dramatically.  Between 1914 and 1924, New York averaged roughly 70 commutations per year, equal to the total number granted between 1990 and 2019.  In 1928, Governor Al Smith granted 66 commutations from a total prison population of 7,819.  Had commutations been granted at an equivalent rate in 2019, there would have been approximately 373; in actuality, there were two.

The ugly modern New York clemency numbers were particularly disheartening given that former NY Gov Cuomo started talking big about NY clemency efforts in 2015 and again in 2017 (see prior posts here and here).  But, after talking the talk, former Gov Cuomo thereafter never actually delivered significant results (see prior posts here and here). 

But, as is depressingly common, former Gov Cuomo did deciding to go on a bit of a final (though still modest) clemency spree after announcing his resignation.  This AP piece  detailed that Cuomo granted five pardons and five clemencies last week, and this new local piece details that in his final hours in office, "Gov. Andrew Cuomo commuted the sentences of four individuals, referred one case to the parole board, and fully pardoned one individual."  Given that there are well nearly 40,000 persons in New York prisons (with likely more than 10,000 over 50) and probably more than four million will some sort of state criminal record, a total of 16 clemencies on the way out the door seems more like a whimper than a bang.

That said, the one referral to the parole board will be sure to get attention because it involved a high-profile inmate with a high-profile son and it does not serve as a conclusion of the matter.  This local article, headlined "Cuomo commutes sentence of radical who took part in '81 robbery; David Gilbert, imprisoned for four decades, can take case to parole board," provides the basics:

Just hours before leaving office, Gov. Andrew M. Cuomo granted clemency to five men, including the commutation of the 75-years-to-life sentence of David Gilbert, a former member of the radical Weather Underground who in 1981 took part in the robbery of a Brink's armored truck in Rockland County that left two Nyack police officers and a security guard dead.

Steve Zeidman, a CUNY Law School professor who began representing Gilbert in 2019, said Monday evening that his client is one of the oldest and longest-serving among the state's roughly 38,000 inmates.  He said that Gilbert has expressed deep remorse for his role in the crime, and while behind bars has taken part in efforts such as the creation of an AIDS education program that became a statewide model as the epidemic was raging in the 1980s and '90s.

Zeidman, who directs the law school's Criminal Defense Clinic, said that beyond the impact on Gilbert personally, Cuomo's action sends a message to incarcerated people who fear they have no chance for release.  "When a governor issues clemency, it echoes, it reverberates, it spreads hope," he said.  Gilbert's son, Chesa Boudin, was elected district attorney for San Francisco in 2019.  His mother, Kathy Boudin, was also incarcerated for decades for her part in the heist, and received parole in 2003.

 

Gilbert and Kathy Boudin were in a transfer truck waiting for the getaway car carrying the robbers and the $1.6 million they had stolen from the Brink's truck at the Nanuet Mall. Boudin received a sentence of 25 years to life after hiring a lawyer, pleading guilty and accepting a plea deal; Gilbert defended himself and went to trial.

"My father was not present in the courtroom for much of the trial and nobody advocated for him, which is why it is a bad idea to represent yourself," Chesa Boudin told Grondahl. "My mother and father did the exact same thing and had identical culpability in the crime. My mother served 22 years in prison and was paroled 17 years ago, while my father is still in prison. It's an example of criminal justice imbalance."

August 24, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, August 23, 2021

En banc Sixth Circuit preserves death sentences in Kentucky in two big en banc rulings

This past Friday and also today, the Sixth Circuit handed down divided en banc rulings to upholds death sentences in cases from Ohio and Kentucky.  The Ohio case, Hill v. Shoop, No. 99-4317 (6th Cir. Aug, 20, 2021) (available here), has a majority opinion that gets started this way:

In this death penalty habeas case, appellant Danny Hill seeks collateral review of his conviction for the murder of Raymond Fife, a twelveyear-old boy. The case has been to the Supreme Court once and before panels of this court twice.  The core issue in the underlying state case was whether Hill was ineligible for the death penalty because he is intellectually disabled, a question that became pertinent after the Supreme Court’s 2002 decision in Atkins v. Virginia, 536 U.S. 304 (2002). Before us, the issues are whether, under governing AEDPA review principles, the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).  We conclude that the state court’s resolution of the issue does not meet either of the criteria that would permit a federal court to disturb a state conviction. Thus, we affirm the district court’s denial of Hill’s petition for a writ of habeas corpus.

The Kentucky case, Taylor v. Jordan, No. 14-6508 (6th Cir. Aug, 23, 2021) (available here), has a majority opinion that gets started this way:

Victor Taylor murdered two high-school students in 1984, for which a jury convicted him of capital murder and recommended a sentence of death.  The trial judge imposed that sentence and the Kentucky Supreme Court repeatedly denied Taylor’s claims for relief.  Taylor eventually filed a federal habeas petition, arguing (among many other things) that the prosecutor at his trial had discriminated against African-American members of his venire.  The district court denied Taylor’s petition. We affirm.

August 23, 2021 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Nova Scotia Court says "historic factors and systemic racism" should be considered in sentencing an African Nova Scotian offender

A helpful reader made sure I saw this interesting story about a notable new ruling in Canada headlined "Nova Scotia Court of Appeal rules to consider history of racism, marginalization in cases."  Here are the details:

The sentencing of Black offenders in Canada is on the verge of a dramatic change after Nova Scotia’s top court ruled that, as with Indigenous offenders, trial judges need to consider the history of racism and marginalization that shaped them, and do their utmost not to put them behind bars where appropriate.

The Criminal Code has spelled out since 1996 that incarceration is a last resort for Indigenous offenders.  It does not refer to any other racialized group.  But it does say that sentences are meant to fit both the offence and the offender.  The Nova Scotia Court of Appeal, in a ruling last week, became the country’s first appeal court to draw on that principle and require a judge-made, as opposed to legislated, approach to the sentencing of Black offenders.

“The moral culpability of an African Nova Scotian offender has to be assessed in the context of historic factors and systemic racism,” Justice Anne Derrick wrote in a 5-0 ruling. The ruling illustrates the sharp turn that will now be demanded of Nova Scotia’s judges -- a change in approach that could well spread to other provinces.  Ontario’s top court is expected to decide a case soon on whether to require a similar approach.

Like the reports written on some Indigenous offenders, known as Gladue reports, in-depth documents that tell a judge at sentencing about a Black offender’s history of exclusion and marginalization should be done from here on, or the appeal court may overturn the sentence, Justice Derrick warned.  The reports on Black offenders are known as an Impact of Race and Culture Assessment (IRCA).

The ruling was applauded by Roger Burrill, a lawyer for Rakeem Anderson, the offender in the Nova Scotia case, who was sentenced to two years of house arrest, to be followed by two years of probation for illegal gun possession.  “I think it’s impactful for the whole country, on the basis that systemic racism is completely, totally, unequivocally recognized as a factor in dealing with the principles of sentencing,” Mr. Burrill said in an interview.

It was also applauded by the Criminal Lawyers’ Association, based in Ontario, which intervened in the case. “Not to suggest colonialism is the same as what happened to Blacks in Canadian history,” Daniel Brown, a vice-president of the group, said in an interview, “but there has been a history of slavery, a history of segregation. All of that has contributed to many of these challenges they face today.”... 

The IRCA report on Mr. Anderson, co-authored by social worker Robert Wright and by Natalie Hodgson, said the offender’s best friend was killed by violence.  Ms. Hodgson testified gun possession was an accepted cultural norm in the North End of Halifax, where Mr. Anderson, in his 20s, had lived in substandard housing, surrounded by poverty and crime. “Many Black males arm themselves with guns, not because they have plans to harm someone, but rather they feel the need to protect themselves in case,” Ms. Hodgson testified.

Mr. Wright, the author of the first IRCA in Nova Scotia in 2014, testified that certain behaviours arise from “a community’s trauma and difficulty,” and that harsh treatment will neither reform the individual nor deter others from their community. His report said: “Rakeem was thrown into the world as a young adult lacking the skills and knowledge to thrive and survive; no resources, supports or interventions, without therapy for trauma and loss, and a very low elementary-level education.”

Chief Justice Williams said she had spent many hours “agonizing” over a just sentence. Mr. Anderson, a father of four young children and said to have a good heart, in some ways did not appear a good candidate for rehabilitation.  He had done little to address his education and training deficits while his case was before the court.  Ultimately though, the judge agreed with Mr. Wright and sentenced Mr. Anderson to two years of house arrest, with a 10 p.m. curfew and conditions that he attend Afrocentric therapy to address trauma, attend literacy and education programs with an Afrocentric focus and perform community service.  “Punishment does not change behaviour when the actions are rooted in marginalization, discrimination and poverty,” Chief Justice Williams said, while adding that those who endanger society must be separated from it....

The 1996 Criminal Code provision singling out Indigenous offenders for more lenient treatment has not stemmed an increase in the prison population.  Indigenous peoples now make up 31.5 per cent of federal prisoners, while they are just over 5 per cent of the country’s population.

The full ruling is available at this link.

August 23, 2021 in Race, Class, and Gender, Sentencing around the world, Who Sentences | Permalink | Comments (1)

Deep thoughts about "criminal legal education" as we head back to school

I am very excited to be back to school this week with the extra pleasure and honor of teaching a (small section) of 1L Criminal Law (though I am frustrated that this semester will now be the fourth beset with COVID challenges).  My very first class ― way back in Fall 1997! ― was a small section of Criminal Law to 1Ls, and I surely want to believe I have done more good than harm in well over a dozen iterations of this great class.  However, this notable new Inquest essay by Shaun Ossei-Owusu should perhaps lead every criminal law professor to give some thought to whether and how we are just "Making Penal Bureaucrats."  This essay builds on some points he made in a recent law review article, "Criminal Legal Education," and here are excerpts:

Many lawyers play a central role in creating and sustaining mass incarceration; and many will leave law school with the ability to do the opposite. The high-profile death [of George Floyd] confirmed the brutality, inequality, and, for some, irredeemability of the very things many professors teach.  And criminal legal educators, some believe, need to read the room and offer instruction that better conveys the unjust realities of our legal system.  Alice Ristroph, a professor at Brooklyn Law School, may have offered the most forceful of these critiques, arguing that the detachment from reality and supposed race-neutrality of criminal-law teaching produces “pro-carceral” lawyers who help sustain mass incarceration.

My own work, published and forthcoming, moves in a similar direction, but also examines the race, poverty, and gender oversights in criminal legal education more broadly.  Some fellow academics will take issue with the idea that law professors have a hand in mass incarceration, to say nothing of other social ills, while others will applaud and nod in approval.  Whatever side they’re on, the undeniable reality is this: Law professors have trained and will continue to educate public defenders, prosecutors, and judges.  The legal education of these penal bureaucrats matters in the larger conversation around criminal justice policy and its deep, structural failings. And so the obstacles to changing legal education are really obstacles for the effort to tear down the legal edifice that made Floyd’s murder possible in the first place. As history shows, those challenges are not insignificant. To overcome them, we need a clear-eyed sense of what the precise obstacles are standing in the way to a more justice-oriented legal education.

Simply put, we can’t afford to ignore curricular reform in this moment, as navel-gazing as such a project may seem to those outside of law school.  I don’t profess to have all the answers.  Instead, I hope to sketch some issues we must confront if legal educators hope to meaningfully leverage this new energy in favor of effective curricular reform.  There have been various proposals and calls for action, but it seems necessary to raise questions that are sometimes muted or skipped over in the rush to reform a curriculum that has real shortcomings. The answers to these questions might lead us closer to capturing what legal historian Bob Gordon has described as “the motors of curricular change.”...

 With the exception of untenured faculty, law professors enjoy considerable latitude in their classrooms. A dean or administration has some carrots and sticks at their disposal, but few are game changers. These professors can be fussy and persnickety about teaching, and rightfully so.  Teaching comprises a substantive portion of professorial duties (the other two standard activities being research and service). As one professor observed in 1968, “I have seen law teachers, who have no peers in nitpickery, verge on purple apoplexy in debate over the curriculum. The whole academic business is fraught with vested interests, gored oxen, ground axes, pet peeves, visionary schemes, and intractable inertia.”

All this power-wielding exists in a context where there are competing ideas about the role of the professor.  A mere transmitter of what the law is?  A camouflaged activist who blends instruction with the inculcation of a particular set of values that makes students want to improve the criminal justice system, independent of how many people actually want to go in that line of work?  An instructor whose teaching discourages students from certain kinds of work as undesirable — where progressive prosecution and indigent defense alike are “system-reifying”?

In view of this morass of challenges, it is no wonder that urging legal instructors to talk more about racism, poverty, sexism, homophobia, and transphobia in their classrooms — even if they engage those topics already — is no stroll in the park.  Looking to the broader aim of criminal legal reform, explaining why the rest of the public should care or enter this discussion at all is tricky.  Law schools can be cordoned off from their local communities.  The key here is to recognize that this is a site of struggle where change-oriented people and organizations can develop allyships with like-minded students and faculty to help craft solutions to the multilayered problems of our penal system.

For students, I hope that identifying these challenges will clarify two things.  The first, which is something that I’ve consistently argued, is that legal education is unlikely to provide students with the kind of social justice-oriented training that some are demanding.  Self-led learning and organizing by student groups within and across law schools may have to be the second-best option. But this is not simply nudging students toward neoliberal self-help.  My second hope, instead, is for students to better understand these constraints — and in the process, to get a better sense of how to organize for and demand desired changes from their institutions.  Issues such as faculty composition, faculty governance, the professional pathways of graduates, and ideological variation within student bodies are some of the many issues that shape what they learn in a criminal legal education course.  But these factors may not be readily apparent to students who don’t have a sense of the “backstage” of legal education.  The short-term nature of legal education — three years, or two if you do not count the overbearing first year or a third year some students often check out of — demands cooperation with change-minded people outside of law schools and intentional strategies that withstand law school’s running out the clock on curricular change and hoping that the next cohort of students does not notice.

My fellow legal educators are likely to understand where I’m coming from. For those who care about this issue, my desires are also twofold.  First, I hope that these reflections will spur them to honestly assess where they might fit on a rough spectrum of this kind of curricular reform: active implementer, passive supporter, or outright adversary.  I have my own beliefs on the desirability of revamping criminal legal education; and yet I think there are principled justifications for each of these dispositions.  Let us just be intellectually honest about where we stand.  Second, I hope that we can all see that we are part of a vocation that has long professed ideas about intellectual curiosity, social justice, and equality under the law.  Nevertheless, our field has not been fully responsive to longstanding appeals to include legally relevant conversations about social inequality in our teaching.  Our response to this moment will partially dictate whether our profession can march closer toward social justice-oriented legal education — one that could mold not only the next generation of penal bureaucrats but also the change agents who will engage them and help to build new decarceral futures.  Or whether that curricular goal will simply result in yet another round of panels, symposia, and hashtags that merely scratch the surface.

August 23, 2021 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (1)

Thursday, August 19, 2021

Still more attention (and some helpful action) for the home confinement cohort

It has now been a full month since the news broke that the Biden Justice Department was going to accept the legal opinion that federal prisoners released into home confinement would have to be returned to prison after the pandemic.  The dilemma of the home confinement cohort continues to generate considerable attention and here are a few new pieces:

From The Bulwark, "Biden Must Act to Ensure Nonviolent Offenders Aren’t Sent Back to Prison"

From Inquest, "Keeping Them Home: During the Trump administration, lawyers at DOJ said thousands of people who were sent home from prison during the pandemic need to be sent back when the COVID emergency ends. They got the law wrong, and DOJ should say so."

Helpfully, in addition to attention, this week also brought action to help this group as detailed in this new press release titled "FAMM, NACDL, and Washington Lawyers’ Committee launch CARES Act Home Confinement Clearinghouse."  Here are the basics:

FAMM, the National Association of Criminal Defense Lawyers (NACDL), and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs (WLC) launched the “CARES Act Home Confinement Clearinghouse” today in an effort to prevent up to 4,000 people on CARES Act home confinement from returning to prison.

The Home Confinement Clearinghouse will match people on home confinement with pro bono attorneys or federal public defenders who will consider filing compassionate release motions in federal court on their behalf.

“Sending thousands of people back to prison after nearly two years of being with their families and reintegrating into society is unnecessary and cruel,” said FAMM President Kevin Ring. “The White House has shown no willingness to act so we are turning to the courts.”...

Due to the Biden Administration’s failure to act, FAMM, NACDL, and WLC have determined that it is essential for people on home confinement to pursue other viable options to avoid their unnecessary return to prison. Compassionate release is one such option....

People eligible for free representation through the CARES Act Home Confinement Clearinghouse fall into the extraordinary and compelling circumstances provision in the federal compassionate release law. Many of them have been deemed by the Bureau of Prisons as “low risk,” were released to home confinement during a global pandemic due to their vulnerability to the virus, were never informed about the possible return to prison, have successfully reintegrated into family and community for a year or longer, and face the re-emergence of COVID-19 threat.

The CARES Act Home Confinement Clearinghouse is modeled after the highly successful Compassionate Release Clearinghouse COVID-19 Project launched by the same organizations last year. The Clearinghouse was launched in an effort to protect vulnerable incarcerated people from the spread of COVID-19 in federal prisons and placed over 2,000 cases with pro bono counsel. Federal public defenders helped even more people. Federal judges answered the call by granting more than 3,500 compassionate release motions, despite BOP and Justice Department opposition to nearly every case,

The Cares Act Home Confinement Clearinghouse will turn to federal judges again to help prevent the cruel unnecessary reincarceration of up to 4,000 law-abiding people. We will also urge the Justice Department to not oppose any of the motions as they have done in the past.

Some of many prior related posts:

August 19, 2021 in Criminal Sentences Alternatives, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Federal district judge dismisses illegal reentry prosecution holding "Section 1326 violates the Equal Protection Clause of the Fifth Amendment"

Though not exactly a sentencing ruling, late yesterday US Chief District Judge Miranda Du of Nevada issued a big decision in US v. Carrillo-Lopez, No. 3:20-cr-00026-MMD-WGC (D. Nev. Aug 18, 2021) (available here), concerning a statute that is the basis for tens of thousands of federal sentences every year.  Here is the start of the 43-page opinion in Carrillo-Lopez and its substantive conclusions:

On June 25, 2020, Defendant Gustavo Carrillo-Lopez was indicted on one count of deported alien found in the United States in violation of 8 U.S.C. § 1326(a) & (b) (“Section 1326”).  Before the Court is Carrillo-Lopez’s motion to dismiss the indictment (the “Motion”) on the grounds that Section 1326 violates the equal protection guarantee of the Fifth Amendment under the standard articulated in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977).  On January 22, 2021, the Court heard oral argument on the Motion, and on February 2, 2021, the Court held an evidentiary hearing.  Because Carrillo-Lopez has established that Section 1326 was enacted with a discriminatory purpose and that the law has a disparate impact on Latinx persons, and the government fails to show that Section 1326 would have been enacted absent racial animus — and as further discussed below — the Court will grant the Motion....

Carrillo-Lopez has established, and the government concedes, that the Act of 1929 was motivated by racial animus. The government does not assert the 1952 Congress addressed that history when it reenacted Section 1326.  Moreover, the government fails to demonstrate how any subsequent amending Congress addressed either the racism that initially motivated the Act of 1929 or the discriminatory intent that was contemporaneous with the 1952 reenactment.  The record before the Court reflects that at no point has Congress confronted the racist, nativist roots of Section 1326. Instead, the amendments to Section 1326 over the past ninety years have not changed its function but have simply made the provision more punitive and broadened its reach.  Accordingly, the Court cannot find that subsequent amendments somehow cleansed the statute of its history while retaining the language and functional operation of the original statute.

In conclusion, the government has failed to establish that a nondiscriminatory motivation existed in 1952 for reenacting Section 1326 that exists independently from the discriminatory motivations, in either 1929 or 1952.  Moreover, the government’s alternative arguments — that a nondiscriminatory motive was “plain” or that subsequent amendments somehow imply the racial taint was cleansed — are not supported by caselaw nor borne out by the evidentiary record. In sum, on the record before the Court, the Court can only conclude that the government has not met its burden.  Because Section 1326 violates the Equal Protection Clause of the Fifth Amendment, the Court will grant Carrillo-Lopez’s Motion.

Scott Greenfield has an effective summary of the ruling in this new post at Simple Justice.  He notes that it "seems almost inconceivable that the Ninth Circuit won’t reverse this decision," but also highlights that "Judge Du’s decision makes some very serious points about how laws were enacted a century ago, when racism was fairly open and routine."  And here is some effective local media coverage:

This recent Quick Facts report from the US Sentencing Commission indicated that there were over 22,000 illegal reentry sentences imposed in Fiscal Year 2019, and nearly 20,000 such sentences in FY 2020. That means that, on average, in federal courts about 400 of these sentences are being imposed each and every week. Because Judge Du's opinion is not binding on other courts, this new decision will not likely disrupt this case flow dramatically. But I suspect it will be (and maybe already is) getting raised in new filings in district courts around the country.

August 19, 2021 in Offense Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (3)

Wednesday, August 18, 2021

Authors of provocative paper retract judge-specific claims about "most discriminatory" federal sentencing judges

I expressed concerns in this post last month about a new empirical paper making claims regarding the "most discriminatory" federal sentencing judges under the title "The Most Discriminatory Federal Judges Give Black and Hispanic Defendants At Least Double the Sentences of White Defendants."  In addition to articulating some first-cut concerns in my initial post, I also solicited and published here an extended post by Prof. Jonah Gelbach about the work based on this Twitter thread criticizing the paper.  

This new Twitter thread by one of the authors reports that the paper has now been revised to remove judge-specific claims as to the "most discriminatory" sentencing judges, and it is now re-titled "Racial Disparities in Criminal Sentencing Vary Considerably across Federal Judges."  This new New Jersey Law Journal article, headlined "Backpedaling: Authors of Study on Racist Rulings Retract Their Claims Against Pennsylvania, New Jersey Judges," provides some more details:

The authors of a study that accused some federal judges of extreme racial and ethnic bias in sentencing have withdrawn their conclusions about specific jurists following criticism of their methodology.

An earlier version of the study, published in July by the Institute for the Quantitative Study of Inclusion, Diversity and Equity, said two Eastern District of Pennsylvania judges and one from New Jersey give Black and Hispanic defendants sentences that are twice as long as those they give to whites.

But a revised version of the study, posted Tuesday, asks readers to disregard the references to specific judges....  “A previous version of this work included estimates on individually identified judges. Thanks to helpful feedback, we no longer place enough credence in judge-specific estimates to make sufficiently confident statements on any individual judge.  We encourage others not to rely upon results from earlier versions of this work,” the revised version of the study said.

The study’s lead author, Christian Michael Smith, explained on Twitter that, “while our initial paper appreciated how random chance, systematic missing data patterns, and/or hidden structural factors for sentencing could affect judge rankings, we now regard the following possibility as less remote than we initially regarded it: that a judge who is actually unproblematic could end up on the extreme end of our discrimination estimates, due to random chance, systematic missing data patterns, and/or hidden structural factors for sentencing.”...

Gelbach, in an email, said of the retraction, ”I applaud the authors for removing the ranking of judges’ sentencing practices and for making clear that people should not rely on those rankings. Given the data limitations, that was the right decision for them to make.”

Prior related posts:

August 18, 2021 in Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

"Environmental Indifference"

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

An incarcerated American underclass, disproportionately comprised of minority citizens, has been compelled to live in an unconstitutionally polluted environment. Exposure to radon gas in indoor air is just one example of that pollution.  Fortunately, the legal effort to address that particular condition of confinement has already begun; the theoretical and practical discussion in this work strives to both highlight the importance of the issue and inform the doctrinal development.  The Eighth Amendment precedent created on the specific issue of radon exposure will very likely control the courts’ treatment of other environmental harms ignored by prison officials.  This work, using radon exposure litigation as a case study, explains how environmental harms in prisons threaten lives and violate the Constitution.

August 18, 2021 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Second Circuit panel reverses 48-month (way-below-guideline) sentence as substantively unreasonable for abused woman who provided material support to ISIS

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

In one particular (and relatively rare) categories of cases, the government has a particularly notable history of appellate success when arguing a sentence in unreasonably lenient (see posts linked below for some historical examples).  This category is terrorism cases, and a Second Circuit panel added another example in this category with its ruling today in US v. Ceasar, No. 19-2881 (2d Cir. Aug. 18, 2021) (available here).  Federal sentencing fans will want to review this 53-page opinion in detail, but here is the opinion's introduction:

It is undisputed that beginning in or around January 2016, the defendant-appellee, Sinmyah Amera Ceasar, conspired to provide material support to the Islamic State of Iraq and Syria ("ISIS"), in violation of 18 U.S.C. § 2339B(a). Using social media and the encrypted messaging application Telegram, Ceasar expressed her support for ISIS, encouraged others to join ISIS abroad, and helped individuals in the United States contact ISIS members overseas. The overseas ISIS members then facilitated U.S.-based ISIS supporters' travel to ISIS-controlled territory. Ceasar herself intended to travel to ISIS territory by way of Sweden, where she planned to marry another ISIS supporter. In November 2016, Ceasar was arrested at New York's John F. Kennedy International Airport on her way to Sweden via Turkey. Following her arrest, Ceasar entered into a cooperation agreement with the government in which she pleaded guilty to one count of conspiracy to provide material support to a foreign terrorist organization. In April 2018, the United States District Court for the Eastern District of New York granted her presentence release.

While on presentence release, Ceasar reoffended.  Despite the fact that the conditions of her release explicitly prohibited her from contacting individuals or organizations affiliated with foreign terrorist groups, Ceasar obtained a laptop computer, recreated pseudonymous social media accounts, and resumed contacting or attempting to contact several individuals known to be supporters of ISIS or other extremist groups.  The FBI, investigating Ceasar's conduct, found that she had intentionally deleted incriminating communications and had instructed others with whom she had been in contact to do the same.  The bond underlying her presentence release was revoked, and she was remanded pending sentencing. When the FBI interviewed Ceasar about her conduct while on presentence release, she made a significant number of false and misleading statements....

Mental health professionals who met with and treated Ceasar characterize her conduct as a misguided search for community stemming from a lifetime of sexual, physical, and emotional abuse and neglect.  Beginning in her childhood, Ceasar's father sexually abused her.  At age 13, she entered the foster care system and was abused or neglected in each home in which she was placed.  While Ceasar has never been legally married, she entered into three successive so-called "religious marriages" with older men, beginning when she was 16.  In each of those marriages, her husband physically or emotionally abused her.  Ceasar was diagnosed with complex post-traumatic stress disorder as a result of the abuse and trauma she endured.

Ceasar faced a Sentencing Guidelines range of 360 to 600 months' imprisonment.  Prior to sentencing, the district court ordered the government and Ceasar to provide expert witness testimony or other materials to assist in its sentencing determination.  The district court held a multiday sentencing hearing at which two government and three defense experts testified as to Ceasar's involvement with and support of ISIS and whether she would be likely to reoffend. 

The district court concluded that the advisory Guidelines range was "excessively harsh" and varied downward from it dramatically.  The court found that Ceasar was motivated by the abuse and trauma she suffered most of her life, and that she needed educational and mental health support in lieu of a long prison sentence.  On June 26, 2019, despite the Guidelines minimum of 360 months, the court imposed a 46-month sentence on Ceasar for the Material Support Offense, one month for the Obstruction Offense, and one month for committing an offense while on presentence release, pursuant to 18 U.S.C. § 3147, all to run consecutively for a total term of 48 months' imprisonment.  Because she had been in custody from the time of her arrest in November 2016 until she was granted presentence release in April 2018, and was then remanded to custody on July 19, 2018 (following her violation of the conditions of her presentence release), Ceasar served only 13 additional months from the time of sentencing (June 26, 2019) until she was released from prison on July 28, 2020. 

The government appealed on substantive reasonableness grounds, arguing that the district court abused its discretion by considering Ceasar's need for rehabilitation to the exclusion of other sentencing factors, and that this mitigating sentencing factor could not bear the weight assigned to it. The government further argues that Ceasar's sentence was shockingly low compared with other sentences imposed for similar crimes. 

We are not without sympathy for Ceasar, but we are constrained to agree with the government. We conclude that the district court placed more emphasis on Ceasar's need for rehabilitation than that sentencing factor could bear, and failed adequately to weigh section 3553(a) factors that balance the needs and circumstances of an individual defendant against, among other things, the goals of protecting the public, deterring criminal behavior, and engendering respect for the law. We further conclude that in comparison with sentences for similar terrorism crimes, Ceasar's sentence of 48 months' imprisonment was shockingly low and unsupportable as a matter of law. We therefore vacate the judgment of the district court and remand for resentencing.

Prior posts on similar reasonableness ruling:

August 18, 2021 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Notable accounting of "widespread support" for the death penalty in public polling

Joseph Bessette and J. Andrew Sinclair have this lengthy new post at Real Clear Policy discussing public polling in the US about capital punishment. The lengthy piece, which I recommend in full, is titled "New Evidence Confirms Widespread Support for the Death Penalty." Here are a few excerpts (with few links from the original):

On July 1, the Biden administration halted the use of the federal death penalty, reversing the Trump administration’s 2020 resumption of executions.  The announcement of a moratorium pending a review of “policies and procedures” is less permanent than legislative abolition, but it is unlikely the president could get Congress to end the death penalty. Many Americans support capital punishment; in fact, our research shows that public support for the death penalty is even greater than commonly reported....

The Pew Research Center recently reported that 60% of Americans support the death penalty for murder.  Gallup, which has been asking Americans about capital punishment since the late 1930s, gauges current support at 55%.  These are clear majorities but well below the modern peak of around 80% in the mid-1990s.  Political choices have begun to reflect this systematic decline in support. Despite championing the death penalty in the 1990s, President Biden joined nearly every other Democratic presidential candidate in calling for its abolition in his 2020 campaign.  Virginia (in 2021) and Colorado (in 2020), both states trending towards the Democratic Party, recently abolished the death penalty.

Although the two of us disagree about whether capital punishment should be public policy in the United States, we agree that a nuanced approach is required for understanding public opinion on this issue.  The standard type of death penalty question, asked over and over again for more than half a century, leaves policymakers, scholars, and citizens with an incomplete picture of support, or potential support, for the death penalty.  We are far from the first to observe that the answer you get depends on the question you ask.  We have begun a project, though, of systematically trying to understand what these different responses can tell us about how many American voters support capital punishment. 

Both Gallup and Pew ask a generic question. Gallup asks, “Are you in favor of the death penalty for a person convicted of murder?” Although Pew gives more options to measure level of support, its question is otherwise nearly identical: “Do you strongly favor, favor, oppose or strongly oppose the death penalty for persons convicted of murder?” Other polling organizations tend to ask versions of this question as well. Yet, these questions do not distinguish between most murders and the specific kinds of aggravated murders that make someone eligible for the death penalty in the 27 American states that retain capital punishment.  If you oppose the death penalty for most murders, but not all murders, how would you answer the generic question?...

While we continue to conduct survey research on the death penalty, we wanted to share our main findings from surveys conducted in June 2019 and October 2020 because of the renewed debate of recent months and years. (We present our key findings in a report released by the Rose Institute of State and Local Government, Claremont McKenna College.)  In each survey, we used a three-part approach to gauging support for the death penalty.  First, we asked a version of a general question about the death penalty.  Second, we asked all respondents about the appropriateness of the death penalty for particular aggravated murders.  Third, we asked respondents for their opinion about a death penalty policy decision in their own states....

To provide a rough summary of our findings: We can divide the electorate into three groups of different sizes.  About a fifth of American voters oppose the death penalty in nearly every circumstance: These appear to be the truly committed opponents.  About three fifths reliably support the death penalty: they favor it in theory and also want to have a death penalty law in their state.  A final fifth of the American electorate approves of the death penalty in some way, in theory, but does not necessarily want the death penalty in their state. 

Framed this way, there is more support for the death penalty than the 55% (Gallup) or 60% (Pew) numbers might suggest. This is not to say those numbers are “wrong” (with similar questions, we find similar results), but just that they understate death penalty support for the kinds of aggravated murders that make an offender eligible for capital punishment in American states.  If a substantial proportion of death penalty “opponents” — as measured by Gallup and Pew — actually approve, at least theoretically, of the death penalty in some cases, their opposition is much softer than might be assumed.  As prior research on this subject has demonstrated, changing crime rates or different media coverage might drive up support again, and these types of voters could potentially be satisfied with laws that focused on a few highly aggravated murders, provided special safeguards against mistaken convictions, or had other features to mitigate their concerns about implementation.  Truly committed opponents are a small minority of voters. 

I am always glad to see more thorough efforts to gauge public opinion in a more granular way. But I wonder if polling on the death penalty could be even more accurate if persons were informed about the considerable costs and inevitable delays that always attend the application of the death penalty in the US.

In some sense, many of these issues will be on display this fall when the Supreme Court considers the reversal of the death sentence given to the Boston Marathon bomber in United States v. Tsarnaev.  Tsarnaev committed his horrific crime now more than eight years ago, and I suspect the many millions spent on lawyers and court actions to fight over a death sentence might seem like a waste of resources even to those who would say they generally support capital punishment in a poll.  Or maybe the awfulness of Tsarnaev's crime might lead even more persons to be death penalty supporters no matter the costs and delays.

August 18, 2021 in Death Penalty Reforms, Who Sentences | Permalink | Comments (2)

Tuesday, August 17, 2021

“The Case for a Presidential Task Force on 21st Century Prosecution"

The title of this post is the title of this notable new white paper produced by Fair and Just Prosecution.  Here is its executive summary:

THE NEED FOR A PRESIDENTIAL TASK FORCE ON 21ST CENTURY PROSECUTION

The United States currently incarcerates its residents at the highest rate of any democratic country in the world.  This system of mass incarceration disproportionately impacts Black and brown Americans, disrupts communities, and bloats budgets, all while impeding the mission of public safety it purports to promote.  Prosecutors wield a vast amount of discretion and authority within the criminal legal system — and therefore share responsibility for those systemic failings — yet they also hold the power to bring about systemic transformation.  The Biden-Harris administration has a vital role to play in catalyzing innovation and helping prosecutors nationwide chart a path to greater justice and equity for their communities.  A new generation of local elected prosecutors are modeling that potential and are reimagining the role of prosecutors. We propose a Presidential Task Force on 21st Century Prosecution to build on — and help perpetuate — that movement.

PROPOSED FOCUS

Seventeen pillars would serve as the basis for a series of hearings and focus the Task Force’s work:

  • Understanding the historical legacy of the prosecutor
  • Promoting deflection, diversion, and shrinking the system
  • Advancing racial and ethnic justice
  • Addressing the poverty penalty and bail reform
  • Promoting harm reduction, saving lives, and drug policy reform
  • Misdemeanor justice
  • Better serving crime survivors
  • Understanding, preventing, and addressing violence
  • Juvenile and young adult justice
  • Preventing officer-involved shootings and enhancing police accountability
  • Improving conditions of confinement
  • Implementing post-conviction justice, fair sentencing, and sentencing review
  • Accounting for collateral consequences and promoting expungement
  • Addressing mass supervision and improving reentry
  • Envisioning success, metrics, and culture change
  • Ensuring ethics, accountability, and transparency
  • Propelling change and investing in transformation....

GOALS AND OUTCOMES

We recommend that the Task Force produce:
  • A final report that identifies successful prosecutorial reforms and innovation, lays out key challenges to implementing change, details promising practices, and offers specific and tangible goals paired with policy and program recommendations that could include improving the safety and well-being of our communities, dramatically reducing jail and prison populations, ending racial disparities, and enhancing transparency and accountability;
  • A strategic roadmap to incentivize and fund change and innovation, including by encouraging and enabling specific federal laws, policies, resources, and grants to help support and propel systemic transformation; and
  • A concrete implementation plan, including the creation of an implementation oversight group and ongoing technical assistance from key federal government bodies and leaders.

August 17, 2021 in Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Noticing the notable number of public defenders among Prez Biden's judicial nominations

In this post a few weeks after Prez Biden assumed office, I asked "So what's a reasonable expectation for how many of Prez Biden's judicial nominees will be criminal defense or civil rights lawyers?". In that post, I noted the data showing the federal judiciary is badly skewed with a disproportionate number of judges who are former prosecutors or former government lawyers or have only private practice experience, and I was hopeful Prez Biden would look to bring more balance to the federal bench.

Just over six month later, two new pieces detail that Prez Biden's track record here is pretty good and why this should be celebrated. Consider first this Bloomberg Law piece headlined "Public Defender Bench Aspirations Emboldened by Biden Nominees."  Here is an excerpt:

President Joe Biden’s nomination of several public defenders is part of a broader effort to add professional and demographic diversity to the judiciary.... Many federal public defenders who’d felt shut out from the bench now see their skills getting overdue recognition by the political establishment.  Biden’s nominations also may convince law students that “they’re not closing that door to being a judge just because they might pursue their public defender aspirations,” said Rachel Barkow, a New York University law professor.

Twelve of Biden’s 33 nominees so far for lifetime federal judicial appointments have public defender experience, and a handful of them have been confirmed.  They include Ketanji Brown Jackson, a former D.C. federal trial court judge and federal public defender, who was confirmed to the U.S. Court of Appeals for the District of Columbia Circuit. Candace Jackson-Akiwumi, a former federal public defender in northern Illinois, was confirmed to the Chicago-based Seventh Circuit.

And at MSNBC, Chris Geidner has this new opinion piece headlined "Biden outshines Trump — and Obama — by appointing public defenders as judges." Here are excerpts:

Last weekend, the Senate confirmed Eunice Lee to a judgeship on the U.S. Second Circuit Court of Appeals.... Lee’s confirmation is remarkable for one due the fact that the judicial landscape is completely unrepresentative of the legal profession — and has been for a very long time. Her confirmation is a single, but important, effort to confront this imbalance.

If that sounds dramatic, just look at the number of judges with backgrounds as prosecutors.  As things stand, they overwhelmingly outnumber those with backgrounds as public defenders.  That imbalance is even more dramatic if you’re looking more broadly at whether the judge’s experience before taking the bench was in representing the government in any role or opposing it....

The law as we know it — or, more bluntly, as it is — is dramatically skewed by the experience imbalance among our judges. Broad swaths of the law like the court-created doctrine of qualified immunity — the protection against most lawsuits that government officials, particularly police officers and prison guards, receive — have been created by judges whose experience was often as prosecutors or otherwise representing the government’s interests instead of individual people’s interests....

Biden’s election over Trump raised hopes for a course correction in the federal judiciary. More than that, there also are the beginnings of change on the state level. This week, lawmakers in Virginia approved eight new judges to an expanded appeals court in the commonwealth, adding “two current and former public defenders and a longtime legal aid attorney — professional backgrounds that have never before been represented on one of the state’s high courts.”

These steps are good, but we can’t lose sight of the fact that they are just that: steps. Let’s assume that Biden continues nominating significant numbers of public defenders to the bench and, more unlikely, that other states take Virginia’s lead regarding their state courts. Even then, this imbalance on the bench would continue for the near future. It would take two or three presidencies, and an overwhelming number of governors and state lawmakers working to change their judiciaries, to see a real shift in the scales of justice.

These new judges being added to the mix, though, will nonetheless have an incredible opportunity, a chance to bring new perspectives to their colleagues and, through their opinions, to those of us who live under their rulings. They will be in the position to put some intellectual weight on the other side of the scale.

A few of many recent prior related posts:

August 17, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (2)

Highlighting the need and value of investing in criminal justice infrastructure in the form of good data

Amy Bach and Jeremy Travis have this notable new Hill commentary headlined "Don't ignore the infrastructure of criminal justice." I recommend the piece in full, and here are excerpts:

Advocates for criminal justice reform from different fields and backgrounds are all reaching the same conclusion: Any attempt at real, lasting change will require a significant investment in our ability to collect, store, and share data. We cannot confirm that new policies work without tracking their outcomes.  We cannot address racial injustice without data about policing practices, court processes, jail populations, and prison systems....

The country’s criminal justice data infrastructure is antiquated and crumbling.  State by state, we cannot track information about the people who are processed through our courts and jails.  Measures for Justice recently released a report documenting the extent of the country’s criminal justice data gap based on an analysis of 20 states.  In seventeen, court data on indigent defendants was entirely unavailable. In eighteen, data about the pretrial process, such as bail, detention and release practices, were practically nonexistent.  These findings scratch the surface of a nationwide problem: We can’t access information necessary to measure the success (or failure) of politically controversial reforms, such as the elimination of cash bail, or hold informed, productive debates about the next steps.

Similarly, as the nation grapples with the spike in gun violence, it remains striking how little we actually know about the use — and misuse — of firearms.  Last year the Expert Panel on Firearms Data Infrastructure, convened by the nonpartisan and objective research organization NORC at the University of Chicago, released a report documenting how the federal government can repair and expand our disordered and segmented gun data systems.  Any reasoned debate on firearms policy requires a shared set of facts — and the nation simply doesn’t have those facts....

[Current political debates] all underscore the need to improve data infrastructure for our sprawling, uncoordinated, and incredibly expensive criminal justice system.  State and federal spending on criminal justice has grown almost 400 percent over the past 20 years — one of the fastest-growing line items in state budgets — yet we remain unable to answer simple questions about how it functions....

Closing the country’s data gap will require setting national standards for data collection and release.  Congress also needs to provide support and incentives for the local agencies that all too often rely on outdated data collection systems — if they have a system at all.  The task may seem daunting, but it is well within the abilities — and budget — of Congress and the White House to tackle....

But without a solid foundation for evidence-based policy making, it becomes impossible to track outcomes.  Reform is stifled.  Racial discrepancies continue.  Failed promises and opaque systems undermine public trust.  In the same way that roads or education are foundational to a larger economic project, good data serve as a foundation for the larger project of public safety and racial justice.  It is a project that Congress cannot ignore.

August 17, 2021 in Data on sentencing, Who Sentences | Permalink | Comments (0)

Monday, August 16, 2021

En banc Third Circuit upholds 65-year juvenile sentence in Grant more than three years after bold panel ruling

In this post way back in April 2018, I noted a remarkable Third Circuit panel opinion in US v. Grant, addressing the application of Eighth Amendment limits on juvenile sentences while vacating  a 65-year federal prison term for a 16-year-old offender.  Among other points, the original split panel opinion in Grant held that "lower courts must consider the age of retirement as a sentencing factor, in addition to life expectancy and the § 3553(a) factors, when sentencing juvenile offenders that are found to be capable of reform."  But six months later, as detailed in this October 2018 post, the active judges voted for rehearing en banc in Grant upon the government's petition and the original opinion and judgment were vacated. 

Now, nearly three years later, the en banc Third Circuit has finally ruled in favor of the government US v. Grant, No. 16-3820 (3d Cir. Aug. 16, 2021) (available here).  Here is how the en banc majority opinion in Grant now starts:

A federal court jury convicted Corey Grant in 1992 of homicide and other crimes that he had committed while he was a juvenile.  The presiding judge sentenced Grant to life imprisonment under the then-mandatory U.S. Sentencing Guidelines.  Parole is unavailable to those convicted of federal crimes, so the sentence effectively condemned Grant to die in prison — with proof of circumstances warranting compassionate release his only hope.

In 2012, the Supreme Court of the United States decided Miller v. Alabama, 567 U.S. 460, which held that the Eighth Amendment permits a life-without-parole (“LWOP”) sentence for a juvenile homicide offender only if the sentencer could have imposed a lesser punishment based on the offender’s youth at the time of the offense.  Later, the Court made Miller retroactive to cases on collateral review.  Montgomery v. Louisiana, 577 U.S. 190 (2016). Because Grant’s LWOP sentence was imposed mandatorily, Miller entitled him to a new sentencing.

At resentencing, the District Judge noted Grant’s minority at the time of his crimes and recognized that youth can impair judgment and thereby mitigate culpability.  The Judge stated that a life sentence for Grant would be too harsh, given his juvenile offender status and individual circumstances, and instead sentenced Grant to a term of 60 years on his homicide-related convictions. Factoring in an undisturbed five-year consecutive sentence, Grant’s total sentence was effectively reduced to 65 years.

Grant now argues that his 65-year sentence violates Miller because it incarcerates him to his life expectancy, thereby amounting to a de facto LWOP sentence. Grant contends that Miller forbids such a sentence for a juvenile homicide offender unless he or she is incorrigible, which Grant is not.  But Miller only entitled Grant to a sentencing hearing at which the District Court had discretion to impose a sentence less than LWOP in view of Grant’s youth at the time of his offenses. And that is what he received. So we will affirm Grant’s 65-year sentence.

In the alternative, Grant maintains that we should remand for yet another sentencing proceeding because vacatur of his LWOP sentence under Miller invalidated his lesser-included concurrent sentence on drug-trafficking counts.  But Grant did not preserve this argument, and the District Court’s failure to extend our sentencing-package doctrine beyond vacated convictions to vacated sentences was not plain error.

This opinion was a long time coming no doubt in part because the en banc court likely was eager to await the Supreme Court's latest pronouncement on the application of Miller. Recall that SCOTUS granted cert in the Malvo case to address the proper retroactive application of Miller way back in March 2019, though only finally spoke on this topic in the replacement Jones v. Alabama case this past April.  Unsurprisingly, this Grant ruling leans heavily on Jones, and seeing how Jones is being applied in this context provides one reason for sentencing fans to check out this new ruling.

But hard-core Eighth Amendment fans will want to make sure they also check out some of the additional opinions, particularly a 15-page concurrence authored by Judge Hardiman and joined by three other judges.  That opinion attacks the Supreme Court's “evolving standards of decency” test for having a history "marked by an illegitimate pedigree and the substitution of judicial preferences about penological policy for the will of the People." And it concludes this way:

The story of the evolving standards of decency test — from its questionable creation in Trop v. Dulles, through a decade of dormancy, its recurrence in death penalty cases, and its recent transformation into the law of the land — has created more problems than it has solved.  Its inscrutable standards require judges to eschew the law as written in favor of moral sentiment.  The only constant is that more and more laws adopted by the People’s representatives have been nullified.  And the People have no practical way to reverse this contrived ratchet.
This Court, relying on a careful review of the Supreme Court’s Eighth Amendment precedents, reaches the right conclusion for the right reason.  But if the Supreme Court continues to apply “the evolving standards of decency” test, I wonder what will be the next stop on this runaway train of elastic constitutionalism?  As Chief Justice Roberts cautioned nine years ago: there is “no discernable end point.”

August 16, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Who Sentences | Permalink | Comments (1)

Might "big change" in New York leadership include a better record on clemency?

I got to thinking today that the coming resignation of Andrew Cuomo will end a particularly disappointing recent chapter in state clemency activity.  Notably, in the wake of Prez Obama;s 2014 Clemency Project, NY Gov Cuomo started talking big about NY clemency efforts in 2015 and again in 2017 (see posts here and here).  But, after talking the talk, Gov Cuomo thereafter never actually delivered significant results.  Here were a few prior posts covering some of Gov Cuomo's pre-COVID failings as of January 2020:

And here are just a few of a number of press pieces from the COVID era highlighting that Gov Cuomo's clemency record did not improve during the pandemic: "While COVID-19 Spreads In NY Prisons, Loved Ones On The Outside Plead With Cuomo For Clemency" and "Prisoners Hoping for Mercy Place Little Faith in Cuomo."  (It is also worth recalling a story detailing that Gov Cuomo was not inspiring as to other prison policies during the pandemic: "Judge says Cuomo's prison COVID-19 vaccine policies were 'arbitrary and capricious'.")

The headline of this recent CBNC piece about the leadership transition in Albany, "Kathy Hochul vows big change from ‘toxic’ Cuomo administration, will fire ‘unethical’ staffers," has me hoping that "big change" in Albany will include a whole new approach to clemency.  After very disappointing work by Gov Cuomo, I hope that a new Gov brings some new hope to clemency advocates in New York.  For a host of reasons, I think it would be unrealistic to expect the incoming Gov to prioritize clemency issues right away, but I also think advocates would be wise to urge her to use her clemency pen as another way to distinguish herself from her predecessor.

August 16, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, August 14, 2021

Lots of deep thoughts for sentencing fans in Summer 2021 issue of New Criminal Law Review

The latest issue of the New Criminal Law Review is committed to "New Topics in Sentencing Theory."  Here are the articles in the issue:

"Editor’s IntroductionNew Topics in Sentencing Theory" by Jacob Bronsther

"Algorithmic Decision-Making When Humans Disagree on Ends" by Kiel Brennan-Marquez and Vincent Chiao

"The Limits of Retributivism" by Jacob Bronsther

"Prosecutor Mercy" by Lee Kovarsky

"After the CrimeRewarding Offenders’ Positive Post-Offense Conduct" by Paul H. Robinson and Muhammad Sarahne

"The Conventional Problem with Corporate Sentencing (and One Unconventional Solution)" by W. Robert Thomas

"Bringing People DownDegrading Treatment and Punishment" by John Vorhaus

August 14, 2021 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (1)