Friday, November 06, 2020

Can we be hopeful federal leaders will make deals to advance federal criminal justice reforms in the next Congress?

The question in the title of this post, which I am most eager to answer in the affirmative, results from reading this new Politico article headlined "America's new power couple: Mitch and Joe; How a Biden presidency and McConnell-led Senate might actually get along."  It still feels a bit too early, since lots of votes are still being counted, to start mapping out possible legislative agendas for the next two years.  But these passages have me thinking about the prospects for more (badly needed) federal criminal justice reforms:

During Barack Obama’s presidency, Joe Biden’s propensity for cutting deals with Mitch McConnell became a running source of aggravation for liberals. Now it will be the key to getting anything done at all.  “Some of the Democrats would say, ‘Joe always wants to make a deal. Joe always wants to make a deal.’ And I’m thinking: ‘Hell, yeah, that’s his job.’” Sen. Joe Manchin (D-W.Va.) said in an interview Thursday. “Why wouldn’t he want to make a deal?”...

McConnell and Biden may have reason to find some common ground.  Under Trump, McConnell has already succeeded in his longtime goal of reshaping the judiciary; soon his role will shift to the most powerful Republican in Washington who must also defend a razor-thin majority.  And Biden was elected running not on the most liberal agenda but in part on his ability to work with the other side, predicting “you'll see an epiphany occur among many of my Republican friends” if Trump loses...

Democratic officials are already acknowledging that their legislative ambitions are much smaller than they were a week ago, but they think there is room for agreement on things like a coronavirus aid package, infrastructure, higher education and rural broadband.  Republicans mostly agree....

The Biden team and Biden himself are thinking through how McConnell as majority leader will reshape his administration and wondering if McConnell will be a deal-maker or the kind of antagonist who said making Obama a one-term president was his top priority, according to an official close with the Biden team.

I am disappointed that this article does not list criminal justice reform as a subject matter where "there is room for agreement," but long-time readers know how criminal justice has become an arena for important bipartisan discussion and work.  And looking back at the notable criminal justice reform recommendations [available here] from the Biden-Sanders Unity Task Force (discussed here), there are at least a few of the listed priorities that ought to be able to garner some bipartisan support (though some are a lot more likely than others):

Mandatory Minimums: Empower judges to determine appropriate sentences, by fighting to repeal mandatory minimums at the federal level and give states incentives to repeal their mandatory minimums.

Retroactive Reforms: Make all sentencing reforms retroactive to allow for individualized resentencing.

Crack/Cocaine Sentencing Disparity: End the federal crack and powder cocaine disparity in sentences, and make the change retroactive....

Compassionate Release: Reinvigorate compassionate release so that the sick and elderly are transitioned out of incarceration so long as they do not pose a public safety risk....

Removing barriers to reentry: Remove restrictions on access to public housing, employment, occupational licenses, driver’s licenses, and public benefits.  Create a U.S. Reentry Commission to conduct a comprehensive review of barriers to reentry, with the goal of taking executive action and proposing legislation to remove as many as possible.  Include recommendations for reforming parole and probation, including preventing reincarceration for technical violations, as well as expungement and sealing of convictions.

The line in the Politico article noting that "McConnell has already succeeded in his longtime goal of reshaping the judiciary" has me wondering whether Senator McConnell might be less adverse to giving federal judges significantly more sentencing discretion now that he views so many as the product of his own king-making.

November 6, 2020 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (0)

Thursday, November 05, 2020

An effective disquisition on the drug war's descent

This lengthy new New York Times article provides a thoughtful review of how diverse coalitions have now come together to start unwinding the war on drugs. The full title of this piece highlights its themes: "This Election, a Divided America Stands United on One Topic: All kinds of Americans have turned their back on the destructive war on drugs." I recommend the full piece, and here is how it starts and ends:

It can take a while to determine the victor in a presidential election.  But one winner was abundantly clear on Election Day. Drugs, once thought to be the scourge of a healthy society, are getting public recognition as a part of American life. Where drugs were on the ballot on Tuesday, they won handily.

New Jersey, South Dakota, Montana and Arizona joined 11 other states that had already legalized recreational marijuana. Mississippi and South Dakota made medical marijuana legal, bringing the total to 35.

The citizens of Washington, D.C., voted to decriminalize psilocybin, the organic compound active in psychedelic mushrooms. Oregon voters approved two drug-related initiatives. One decriminalized possession of small amounts of illegal drugs including heroin, cocaine and methamphetamines. (It did not make it legal to sell the drugs.) Another measure authorized the creation of a state program to license providers of psilocybin.

Election night represented a significant victory for three forces pushing for drug reform for different but interlocking reasons. There is the increasingly powerful cannabis industry. There are state governments struggling with budget shortfalls, hungry to fill coffers in the midst of a pandemic.

And then there are the reform advocates, who for decades have been saying that imprisonment, federal mandatory minimum sentences and prohibitive cash bail for drug charges ruin lives and communities, particularly those of Black Americans.

Decriminalization is popular, in part, because Americans believe that too many people are in jails and prisons, and also because Americans personally affected by the country’s continuing opioid crisis have been persuaded to see drugs as a public health issue....

If states are the laboratories of democracy, then, as Mr. Pollan put it, some of the measures passed on Tuesday will set up interesting experiments.  Neighboring states will watch as Montana and New Jersey create regional cannabis destinations to be envied, imitated or scorned; unlike some other states, Montana and New Jersey do not directly border states where marijuana is fully legal, so they could draw more customers from out of state (though it is illegal to bring marijuana into a state where it is criminal). 

And it’s not entirely clear that marijuana is always the fiscal boost its champions say it is, even as cannabis tourism has helped states like California and Colorado. A state assessment of the financial impact of legalization in Montana, for example, showed that the state expected significant revenue — as much as $48 million a year in 2025 — but that its implementation costs would be nearly as high.

Policy wonks will assess the performance of Oregon’s health authority as it creates its program to license psilocybin distributors, an unusual function for a state department of health regardless of the drug in question.  And Americans all over the country will note — warily or hopefully — what happens in Oregon, now that possession of all controlled substances has been decriminalized.

Adam Eidinger, an activist in Washington, D.C., who proposed the ballot measure that pushed to legalize marijuana there, was also the treasurer of the campaign to decriminalize psilocybin.  (The campaign operated out of his house in the Kalorama neighborhood, home to the Obamas and Jared Kushner and Ivanka Trump.)

Next year, Mr. Eidinger plans to campaign for an initiative in D.C. to decriminalize possession of all controlled substances, much like the one that passed in Oregon. “People want to end the drug war,” he said.

Mr. Sabet, the former White House drug policy adviser, did not expect the nation to follow in Oregon’s footsteps — at least not immediately. “I don’t know if I’d put my money on America wanting to legalize heroin tomorrow,” he said.

November 5, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

New Jersey COVID-related prison releases results in single-day 15% drop of state's prison population

As detailed in this local article, headlined "'It's over, baby': NJ begins releasing inmates who survived COVID spread in prisons," there was a big reform story in New Jersey that became an especially tangible reality yesterday.  Here are some of the details:

"I'm coming out!" Lissette Cardoso shouted through a second-floor window of a beige, nondescript halfway house in Paterson.  Four family members stood on the street in the cold outside.  They'd been waiting for more than 10 years.

Cardoso walked out of the halfway house just before 8:30 a.m. Wednesday, after a decade-long prison term for a string of convenience store robberies.  Her sentence ended three months early and with a kiss to her boyfriend — through their masks — amid a flood of hugs and tears.  "It's over, baby," Luz Salamanca, Cardoso's sister, said as Salamanca's daughter kissed Cardoso's cheeks.  "It's over, you hear me?"

Cardoso was one of thousands of people expected to leave state prisons and halfway houses on Wednesday under a first-in-the-nation law reducing sentences for inmates who served time during the coronavirus pandemic.  State officials said 2,261 inmates would be released throughout the day, marking a single-day drop of 15% in the state prison population.

The drastic decline was lawmakers' response to the coronavirus's devastation in New Jersey prisons.  The death rate inside Garden State prisons was the highest in the nation, according to the nonprofit criminal justice newsroom The Marshall Project....

While Gov. Phil Murphy has scored high marks with the public for his handling of the virus overall, prisons remained a trouble spot.  Murphy and his administration were criticized for moving too slowly to test the incarcerated population and reduce the number of people locked up, both efforts seen as key ways to slow the contagious virus's spread in a setting where social distancing is nearly impossible.

In fact, all but one of the 52 COVID-related deaths in state prisons were reported after Murphy in April created a framework for people to be released.  Lawmakers and prisoner advocacy groups said Murphy's plan allowed the corrections commissioner, Marcus Hicks, too much discretion and that more people should have gotten out.

Ultimately lawmakers put forward a bill, S2519, that reduced sentences by up to eight months for inmates who served during the public health emergency.  According to the American Civil Liberties Union and Prison Policy Initiative, the effort is unique in the nation because it changed state law instead of leaving action up to the executive branch.

Only inmates who are within a year of release are eligible for time off their sentences, and those convicted of murder and some sexual offenses are not allowed to get out early. The law will also give inmates time off if there is another public health emergency.  "We now have a system in place that allows us to be prepared the next time there is an infectious disease that causes pandemonium in our prison systems," said Alexander Shalom, senior supervising attorney and director of Supreme Court advocacy for the ACLU in New Jersey. "And that puts us really far ahead.”

But the law wasn't easily passed.  It was delayed for weeks in Trenton because of concerns that the state cut funding for reentry programs just as it was about to embark on an unprecedented release effort.  Ultimately that state aid was replenished, and Murphy signed the bill into law last month, greenlighting up to 3,000 releases over the next three months. The bulk of those inmates were to get out Wednesday....

While many New Jerseyans were awaiting election results early Wednesday, an informal army of advocates, religious leaders and reentry professionals flooded transit centers, hoping to catch people as they were released.  Each inmate met with a social services worker before being released to connect them with resources, according to Department of Corrections spokeswoman Liz Velez.  The department also gave people with a financial need a food stipend, packages of food or "an emergency supportive stipend to those who have indicated the greatest hardship," she said.

Velez said on Tuesday afternoon, the eve of the releases, that she did not have numbers of how many people had been given identification cards or enrolled in benefits like food stamps or Medicaid.  Releasing a large number of people all at once has prompted concern among some reentry groups and officials, who said the Murphy administration was not providing them enough information to identify who needs help.

November 5, 2020 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Wednesday, November 04, 2020

"Drugs Won Big During the U.S. Election"

The title of this post is the title of this Vice piece highlighting one clear pattern of clear winners during election 2020. Here are excerpts:

Despite the uncertainty over the outcome of the U.S. presidential race Wednesday morning, Mississippi cannabis advocate Natalie Jones Bonner was feeling “absolute joy.”  Jones Bonner, 59, was celebrating the passing of Initiative 65, a ballot measure that will establish a medical cannabis program in the state.

Mississippi is one of a handful of states to pass drug reform measures last night.  In a groundbreaking decision, Oregon voted to support Measure 110, which will decriminalize all drugs, including cocaine and heroin.  Oregon also voted to legalize access to psychedelic mushrooms for medicinal purposes.

Arizona, Montana, New Jersey, and South Dakota all voted to legalize cannabis for recreational purposes.  South Dakota additionally voted yes to establishing a medical cannabis regime. Voters in the District of Columbia passed a measure to decriminalize shrooms.

The outcomes are a boon for drug reform advocates and the cannabis industry, making the possibility of federal weed decriminalization more feasible.  Currently, 33 states allow medical cannabis and 11 have recreational regimes.  Several of the states that passed measures last night have historically been proponents of the war on drugs, with Black people disproportionately arrested for drug crimes....

Matt Sutton, spokesman for the Drug Policy Alliance, said the support of drug reform is crucial in the context of wider conversations around police brutality and the failings of the criminal justice system.  He said Oregon’s decriminalization measure could result in a 95 percent decrease in racial disparities in arrests, according to the Oregon Criminal Justice Commission.

Sutton said it’s “remarkable” that weed legalization would pass in states like Montana, which has the highest rate of racial disparities in weed arrests, and South Dakota, where 10 percent of all arrests are tied to cannabis.

Economic gains, particularly as the pandemic is draining state resources, are in part behind the bilateral support of cannabis reform.  Sutton said he expects New Jersey’s decision to legalize cannabis to light a fire under New York, which has stalled in setting up its legal recreational regime.

Over at Marijuana Law, Policy & Reform I have been blogging a few reactions to marijuana's big election night via these two new posts:

November 4, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

California voters reject ballot initiatives to roll back sentencing reforms and to eliminate cash bail among other notable votes

As reported in this AP piece, there were some notable mixed results on a number of California criminal justice ballot initiatives.  Here is the AP accounting of the two biggest items:

California has upheld several criminal justice changes, endorsing recent efforts to ease mass incarceration by reducing penalties and allowing for earlier releases. Voters also appeared likely to maintain the state’s current cash bail system as a majority opted for the status quo on both criminal justice ballot measures.

Voters on Tuesday defeated Proposition 20, rejecting supporters’ pleas to address what they called the “unintended consequences” of two previously approved ballot measures. One lowered penalties for drug and property crimes in 2014, while the second two years later allowed the earlier parole of most felons.

Voters by a 63% to 37% margin rejected proposals that would have barred criminals convicted of certain serious offenses from earlier release, increased penalties for repeated retail thefts, toughened parole standards and allowed for broader DNA collections.  Opponents said the measure would have set back reforms just as the nation focuses on a criminal justice system that has treated people of color inequitably.

Jay Jordan, executive director of Californians for Safety and Justice that backed the reforms, called the proposition’s defeat “a significant milestone in California’s ongoing effort to make its criminal justice system more effective” and said it would advance national reform efforts. Former governor Jerry Brown championed the 2016 ballot measure that allowed most felons to seek earlier parole and put $1 million of his remaining campaign funds into contesting Proposition 20....

Voters were also leaning toward keeping the state’s current cash bail system, with 55% rejecting a law passed in 2018 that would substitute risk assessments to decide who should remain in jail awaiting trial. The law stalled when the bail industry went to the ballot box.

Even some prominent civil rights groups agreed the system is broken but said the proposed fix might be even worse because it relies on risk assessments that The Bail Project says “codify systemic racism and could lead to higher rates of incarceration in some jurisdictions.”

State Sen. Bob Hertzberg, a Democrat from Los Angeles who wrote the law, said before Election Day that ending cash bail would put California “on the path to a more fair and more safe justice system that treats everyone equally under the law.” While most states recently have altered their pretrial release laws or policies, voters’ approval of Proposition 25 would make California “the only state with a complete prohibition on fiscal conditions of release,” according to National Conference of State Legislatures criminal justice expert Amber Widgery.

Under the new system, no one would pay bail and most misdemeanor suspects would remain free. Those charged with felonies or misdemeanor domestic violence, sex offenses or driving while intoxicated would be evaluated for their perceived risk of committing another crime or not appearing in court. Most would eventually be released, unless they are accused of certain crimes like murder or arson, or if a judge finds there are no conditions like electronic monitoring that could ensure their appearance at future hearings.

All the results of the California propositions can be found on in this article, which notes that another notable criminal justice reform passes:

Proposition 17 –  Allow Felon Parolees to Vote (Yes = 59.0%, No = 41.0%)

The passage of Proposition 17 grants the right to vote to parolees with felony convictions. Imprisoned convicted felons remain disqualified from voting.

And this Los Angeles Times piece, headlined "From George Gascón to jail diversion, criminal justice reform got a big boost in California," highlights the criminal-justice-reform-minded votes in Los Angeles bringing in a new DA and a local measure requiring "that 10% of locally generated, unrestricted county money — estimated between $360 million and $900 million — be spent on a variety of social services, including housing, mental health treatment and investments in communities disproportionally harmed by racism [while] the county would be prohibited from using the money on prisons, jails or law enforcement agencies."

November 4, 2020 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Rounding up some accounts of SCOTUS oral arguments in Jones, the latest juvenile LWOP case

I listened live yesterday morning to the Supreme Court oral argument in Jones v. Mississippi18-1259, which will address "Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole."  The full argument in Jones is available here, and it is worth the 90 minutes for a full listen because nearly all the Justices were quite engaged and the arguments by counsel were consistently strong and interesting.

If you would rather read accounts of the case and argument, here are a few: 

From Kent Scheidegger at Crime & Consequences, "An Aggressive Interpretation of Precedent

From Amy Howe and SCOTUSblog, "Argument analysis: Justices debate requirements for life sentences for juveniles"

From Nina Totenberg at NPR, "Supreme Court Examines When Juveniles May Be Sentenced to Life Without Parole"

From Steven Erickson at Crime & Consequences, "The Muddy Waters of Miller"

From Mark Walsr at Education Week, "High Court Weighs Whether Juvenile Life Without Parole Requires 'Incorrigibility'"

November 4, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, November 03, 2020

Sentencing reform ballot initiative in Oklahoma, SQ 805, appears likely to lose badly

I have been following closely, as highlighted by prior posted noted below, the interesting ballot initiative in Oklahoma seeking to limit the impact of nonviolent criminal history on sentencing outcomes.  Notably, back in 2016, Oklahoma voters approved a ballot initiative downgrading drug possession and a slate of minor property crimes from felonies to misdemeanors.  So state voters have a history of backing sentencing reform via ballot initiative.  But it seems that SQ 805 did not garner comparable support from Sooner voters.

Specifically, as of 10:15pm EST as reported here, there are over 88% of precincts reporting, and the NO vote has nearly 61% while the YES votes is just over 39%.  So it looks like this ballot initiative will not just lose, but lose by a sufficiently large margin that it might discourage other related reform efforts in the near future.

Prior related posts:

November 3, 2020 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Offender Characteristics, Who Sentences | Permalink | Comments (0)

Some places to watch for results on criminal justice ballot initiatives

Images (2)The folks at Vox have created this webpage which will help track "live results" from some of the criminal justice ballot initiatives that voters are considering today around the country. Here is the set up:

In Oklahoma, voters could ban harsh sentencing enhancements that can keep people in prison longer for nonviolent crimes. In California, voters will consider three measures: one to affirm the end of cash bail, another to let people vote while on parole, and a third to roll back recent criminal justice reforms. In Nebraska and Utah, voters could prohibit slavery as a criminal punishment, including forced prison labor.  And in Kentucky, voters could approve a controversial crime victims’ rights law.

Not all of these are for reform as many people think of it today. Some of the initiatives, particularly in California and Kentucky, have been criticized by activists seeking to end mass incarceration and the war on drugs. But depending on how voters decide on these initiatives, they could continue the broader work of the past decade to fix America’s punitive criminal justice system.

The Vox page leaves out the large number of drug reform initiatives, but thankfully the folks at Marijuana Moment have created this great webpage with tracking tools to follow all the marijuana and drug reform ballot initiatives that voters are considering today around the country.  Here is how its set up:  

Marijuana Moment is tracking 11 separate cannabis and drug policy reform measures on ballots in seven states.  Stay tuned to this page for results as votes are counted.

Make sure to follow Marijuana Moment and our editors Tom Angell and Kyle Jaeger on Twitter for live news and analysis, and check our homepage for individual articles about each ballot measure as races are called.

Thanks to support from ETFMG | MJ, we have a single tracker tool below that lets you cycle through all of the key measures as well as separate standalone tools for each initiative.

And do not forget about this great web resource put together by the folks I have the honor to work with at The Ohio State University Moritz College of Law's Drug Enforcement and Policy Center.  The resource collects and organizes information and links about the significant number of drug policy reforms proposals appearing on state ballots this election cycle.  

Though I am interested in all these results, I am especially eager to see how Oklahoma's novel criminal history reform measure, how South Dakota's marijuana legalization initiative, and how Oregon's drug decriminalization measure fare. The nature of the issues and the states in which they are taking place strike me as especially interesting and important.

As always, I would be interested to hear from readers about what issues or races they are following especially closely tonight.

November 3, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Who Sentences | Permalink | Comments (0)

"Shrinking the Accountability Deficit in Capital Charging"

The title of this post is the title of this paper authored by Sherod Thaxton and recently posted to SSRN. Here is its abstract:

The price of capital trials, appeals, and clemency proceedings have skyrocketed since the U.S. Supreme Court lifted its moratorium on the death penalty, but this has not translated to more reliable case outcomes — the rate of serious reversible error and wrongful convictions has steadily increased during the same time period.  The overly aggressive use of the death penalty by prosecutors has not only been convincingly linked to these high reversal rates, but may also increase crime, decrease the likelihood of arrests for homicides, and lead to heightened risks of miscarriages of justice for non‐capital defendants.  It follows that limiting hawkish prosecutorial decision‐making in potentially capital cases may be particularly effective in reducing the prevalence of error and reducing unnecessary expense.  Curbing the virtually unfettered discretion of prosecutors is not a new idea, but extant proposals tend to suffer from shortcomings that are likely to render them impractical or ineffective.  Any viable legal intervention must increase prosecutorial accountability for inadequate charge‐screening in capital cases while still permitting prosecutors to retain discretion in seeking the death penalty.  This essay describes a reform that consists of two primary components: (1) an advisory (i.e., non‐binding) opinion from a reviewing authority assessing the appropriateness of a prosecutor’s decision to seek the death penalty in a case based on the totality of evidence, and (2) financial and administrative cost-shifting mechanisms capable of disincentivizing prosecutorial overreaching in capital charging.

November 3, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Listening to today's SCOTUS oral argument in two big sentencing cases

The year 2020 has been remarkable for so many reasons, and this morning it means for me a focus on the Supreme Court rather than on voting on this historic 2020 Election Day.  This is because I already voted early (about two weeks ago, in fact), and COVID realities mean that oral arguments are now available in real time.  And because SCOTUS this morning just happens to be hearing its two biggest sentencing cases on the docket, I plan to listen in live.  Here are the basics thanks to SCOTUSblog with links to where all can listen:

Jones v. Mississippi, 18-1259 

Issue: Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.

 LISTEN to Jones HERE

 

Borden v. United States, 19-5410

Issue: Whether the “use of force” clause in the Armed Career Criminal Act encompasses crimes with a mens rea of mere recklessness.

LISTEN to Borden HERE

November 3, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, November 02, 2020

Reviewing just some of many Campaign 2020 posts

My very first post this election cycle, which for which I created the category archive Campaign 2020 and sentencing issues, was way back in February 2019.  Over 20 months and nearly 100 posts later, I am so very glad that Campaign 2020 is now so very close to being over.  And I am also glad that Election Night eve gives me an excuse to review posts from this election cycle and flag 10 posts now worth highlighting again:

From February 2019, Brennan Center produces policy brief on "Ending Mass Incarceration: A Presidential Agenda" 

From April 2019, Spotlighting how "politicians are catching up with American voters" on criminal justice reforms 

From July 2019, Former Veep Joe Biden releases extended "Plan for Strengthening America’s Commitment to Justice" 

From September 2019, Prez Trump has reportedly soured on politics of criminal justice reform after FIRST STEP Act achievement

From January 2020, Might the 2020 campaign bring back "law and order" as a political wedge issue?

From February 2020, Noting political import and impact of Prez Trump's Super Bowl ad touting criminal justice reform 

From July 2020, Notable criminal justice reform recommendations from Biden-Sanders Unity Task Force 

From August 2020, "The RNC Can't Figure Out Where It Stands on Criminal Justice Reform" 

From October 2020, Some notable (and mostly heartening) criminal justice discussion in final Prez debate of 2020 

From October 2020, Covering just some of many criminal justice reforms stories percolating in 2020 election

November 2, 2020 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (0)

Background reading before argument in Jones v. Mississippi, the latest SCOTUS foray into Eighth Amendment limits on juve sentencing

Remarkably, it has been more than a decade since the US Supreme Court kicked off its interesting (and uncertain) new line of Eighth Amendment jurisprudence with its ruling in Graham v. Florida, 560 U.S. 48 (2010)Graham declared sentencing juveniles to life without parole (LWOP) for non-homicide offenses to be unconstitutional, and was quickly followed by Miller v. Alabama, 567 U.S. 460 (2012), which held that mandatory LWOP sentences were unconstitutional for juveniles convicted of homicide. Four years later, Montgomery v. Louisiana, 136 S. Ct. 718 (2016), declared that Miller was to be applied retroactively, and now Jones v. Mississippi will explore exactly what Miller and these other cases actually mean for discretionary sentencing of juvenile homicide offenders.

A whole lot of amicus briefs have been filed in Jones on both sides, and the US Solicitor General has also weighed in and been granted leave to participate in tomorrow's scheduled oral argument.  Amy Howe at SCOTUSblog has this preview, which sets up the case this way:

After Miller and Montgomery, state courts can sentence individual juveniles to life without the possibility of parole as long as the sentence is not a mandatory penalty under state law.  On Tuesday, the justices will hear oral argument in a case that asks them to decide what their rulings in Miller and Montgomery require states to do before imposing that sentence.  A Mississippi man contends that the sentencer must find that the juvenile is incapable of rehabilitation, while the state counters that it is enough that the sentencer considered the juvenile’s youth.

For those looking for other background reading beyond the briefs, there have been a number of good commentaries about the issues in this line of rulings published recently:

-- by Brandon Garrett in The Atlantic, "Life Without Parole for Kids Is Cruelty With No Benefit: The United States is the only country that allows this practice, and soon the Supreme Court could get rid of it."

-- by Katie Rose Quandt in In These Times, "The Supreme Court Said Their Sentencing Was Unconstitutional. But They’re Still Behind Bars. Despite SCOTUS rulings against life without parole sentences for juveniles, most who received that sentence remain incarcerated." 

-- by Marc Levin in the Texas Lawyer, "On Election Day, Remember All Youths Are Candidates for Change"

I am looking forward to the Court's consideration of Jones in part because the case presents the three newest Justices with their first big opportunity to weigh in on the Eighth Amendment in a noncapital case.  Based on Justice Gorsuch's work in capital Eighth Amendment cases, I am not expecting him to be a vote for an expansive interpretation of Miller.  But, especially because Justice Kavanaugh and Justice Barrett both are parents to teenage kids, I am wondering if they might be a bit more open to a more expansive view of the Eighth Amendment in this context.

November 2, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Will reform of quirky approach to jury sentencing greatly impact Virginia's criminal justice system?

A helpful reader reminded me that I had forgotten to blog about a recent significant change in sentencing procedure in Virginia, which is effectively explained in this local article from a few weeks ago headlined "Virginia lawmakers vote to reform 224-year-old jury sentencing law."  Here are the basics:

Virginia lawmakers passed a closely watched bill Friday aimed at ensuring people can exercise their right to a jury trial without risking much steeper punishments.

Criminal justice reform advocates frequently called the legislation one of the most important changes the General Assembly could adopt during a special legislative session that has been largely devoted to issues of policing, courts and prisons.  “Everything else is window dressing compared to this bill,” said Sen. Joe Morrissey, D-Richmond, who proposed the measure.  “The result will be an end to excessive sentencing in the Commonwealth of Virginia.”

Virginia and Kentucky are currently the only two states where if a defendant or prosecutor asks for a jury trial, the jury must also hand down the sentence....  Morrissey’s bill will transfer sentencing responsibilities to the judge unless a defendant specifically requests it be set by the jury.

The state’s unusual approach to sentencing dates to 1796 and has been called the jury penalty because it often leads to criminal sentences that are significantly longer than defendants would have faced if they had opted for a trial before a judge or taken a prosecutor’s plea deal.  That’s because unlike judges, juries must hand down sentences that fall within statutory sentencing ranges.  And unlike judges, juries aren’t provided the sentencing guidelines that tell them what the typical punishment is for a similarly situated defendant.

That means a defendant facing a robbery or drug distribution charge would face a five year mandatory sentence if a jury finds him guilty, whereas a judge issuing the sentence could suspend time based on the facts of the case and mitigating circumstances.  Juries exceeded sentencing guidelines in half of the cases they heard in 2018, according to the Virginia Sentencing Commission, which found they issued prison sentences that were on average four years longer than would have been recommended.  Judges, meanwhile, handed down sentences that exceeded guidelines in just 9 percent of cases.

Lawmakers and advocates say prosecutors often take advantage of the arrangement by tacking on charges with steep mandatory penalties and threatening to demand a jury trial if the defendant doesn’t accept a plea agreement. “Most defendants plead out, even when they did not do it.  This is a very difficult decision people have to make,” said Del. Don Scott, D-Portsmouth, who like many lawmakers argued the leverage the law gives to prosecutors contributes to Virginia’s higher than average incarceration rates.  “This would be a revolutionary change in the way we do sentencing.”

While the bill won limited bi-partisan support, Republicans mostly opposed the measure, as did most prosecutors in the state.  They warned that the reform could lead to a huge uptick in jury trials that would require more judges, more courtrooms and more prosecutors — all things that would cost the state millions of dollars.... 

The Virginia Association of Commonwealth’s Attorneys estimated the change could lead to an eightfold increase in jury trials, writing in a letter to lawmakers that without additional money to hire more prosecutors, they’d be forced to agree to plea deals “that are not commensurate with the crime or the harm inflicted upon the victim.”...

Supporters of the bill, which included a contingent of commonwealth’s attorneys from some of the state’s most populated areas, said the concerns about an explosion of jury trials were misplaced, noting that Virginia would simply be adopting the system already used in most states.  And even if the number of jury trials did increase, that would only prove that the existing system was preventing defendants from exercising their constitutional rights.

I would like to be optimistic that this procedural reform would ensure an "end to excessive sentencing" in Virginia, but we see an awful lot of excessive sentencing in a lot of other jurisdictions that have a more "traditional" approach to trials and sentencing.  And, as the question in the title of this post is meant to suggest, I sincerely doubt Virginia will see a huge increase in jury trial  after this law becomes effective.  As we see nationwide, in all jurisdictions, there are a broad array of legal and structural factors that create, in the words of Justice Kennedy in Lafler v. Cooper, 566 U.S.156 (2012), "the reality that criminal justice today is for the most part a system of pleas, not a system of trials."

Because I generally believe juries should play a larger role in the administration of our modern criminal justice systems, I tend to be a supporter of jury sentencing in principle.  But Virginia's recent experiences, which prompted these latest reforms, serve as an important reminder that just how jury sentencing operates in practice plays a critical role in whether this form of sentencing can serve as a help or hinderance to a more fair and transparent and effective criminal justice system.

November 2, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

No new cert grants from SCOTUS, but order lists includes interesting per curiam reversals including one on prison conditions and qualified immunity

This morning's Supreme Court order list starts by noting that "Justice Barrett took no part in the consideration or decision of the motions or petitions appearing on this Order List." That fact may in part explain why the Court did not grant certiorari in any cases. But the order list is still an interesting read because it included two per curiam opinions, in McKesson v. Doe and Taylor v. Riojas, summarily reversing lower court opinion to order further proceedings in the Fifth Circuit. 

The fed courts nerd in me really likes Mckesson decision because it orders the Fifth Circuit to certify a fascinating questions of Louisiana tort law to the Louisiana Supreme Court in an effort to potentially avoid having to resolve a challenging First Amendment question.  But the Taylor decision gets to the issue of prison conditions and qualified immunity because "Petitioner Trent Taylor is an inmate in the custody of the Texas Department of Criminal Justice [who alleged] that, for six full days in September 2013, correctional officers confined him in a pair of shockingly unsanitary cells."  Here is how SCOTUS kept his lawsuit going:

The Fifth Circuit erred in granting the officers qualified immunity on this basis.  “Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.”  Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam).  But no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.  See Hope, 536 U.S., at 741 (explaining that “‘a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question’” (quoting United States v. Lanier, 520 U.S. 259, 271 (1997))); 536 U.S., at 745 (holding that “[t]he obvious cruelty inherent” in putting inmates in certain wantonly “degrading and dangerous” situations provides officers “with some notice that their alleged conduct violate[s]” the Eighth Amendment).  The Fifth Circuit identified no evidence that the conditions of Taylor’s confinement were compelled by necessity or exigency.  Nor does the summary-judgment record reveal any reason to suspect that the conditions of Taylor’s confinement could not have been mitigated, either in degree or duration.  And although an officer-by-officer analysis will be necessary on remand, the record suggests that at least some officers involved in Taylor’s ordeal were deliberately indifferent to the conditions of his cells.

Notably, only Justice Thomas dissented from the Taylor ruling in favor of the prisoner in Taylor, although Justice Alito wrote an extended "concurring in the judgment" statement to explain why he thoughts the "petition [was] ill-suited for review."

November 2, 2020 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, November 01, 2020

"Life Without Parole Sentencing in North Carolina"

The title of this post is the title of this notable new paper authored by Brandon Garrett, Travis Seale-Carlisle, Karima Modjadidi and Kristen Renberg now available via SSRN.  Here is its abstract:

What explains the puzzle of life without parole (LWOP) sentencing in the United States?  In the past two decades, LWOP sentences have reached record highs, with over 50,000 prisoners serving LWOP.  Yet during this same period, homicide rates have steadily declined.  The U.S. Supreme Court has limited the use of juvenile LWOP in Eighth Amendment rulings. Further, death sentences have steeply declined, reaching record lows.  Although research has examined drivers of incarceration patterns for certain sentences, there has been little research on LWOP imposition.

To shed light on what might explain the sudden rise of LWOP, we examine characteristics of the more than 1,627 cases in which LWOP was imposed from 1995 to 2017, in North Carolina, one of the states that imposes the largest numbers of these sentences.  We begin by analyzing defendant race, crime, and sentence patterns by county.  We associate LWOP with homicide rates, and examine interactions between homicide, victim race, and prior LWOP sentencing. 

This first empirical analysis of adult LWOP sentences finds important local variations in its imposition.  We find that as the homicide rate increases within a county, we observe fewer LWOP sentences.  We find that fewer LWOP sentences are predicted to occur as the number of black victim homicides increase in a county, but no such relationship is found when considering the number of white victim homicides.  Finally, we find a strong path dependency and concentration of LWOP sentences in counties, where counties that have imposed LWOP sentences in the past are more likely to continue to do so.  These findings have implications for efforts to reconsider the most severe sentences in the U.S., and they suggest that prosecutorial discretion in seeking long sentences will be important subjects for future research and policy.

November 1, 2020 in Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Saturday, October 31, 2020

"Courts, Culture, and the Lethal Injection Stalemate"

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

The Supreme Court’s 2019 decision in Bucklew v. Precythe reiterated the Court’s great deference to states in Eighth Amendment lethal injection cases.  The takeaway is that when it comes to execution protocols, states can do what they want.  Except they can't.  Notwithstanding courts’ deference, executions have ground to a halt in numerous states, often due to lethal injection problems.  State officials and the Court’s conservative Justices have blamed this development on “anti-death penalty activists” waging “guerilla war” on capital punishment.  In reality, though, a variety of mostly uncoordinated actors motivated by a range of distinct norms has contributed to states’ lethal injection woes. These actors, such as doctors, pharmaceutical companies, and institutional investors, follow their own professional incentives, usually unrelated to the morality of capital punishment.

States’ recent execution difficulties raise important questions about the future of the Eighth Amendment and the American death penalty.  As certain lethal injection protocols and executions themselves become less common, future courts might reconsider their deference in this area.  The Eighth Amendment, after all, encompasses “evolving standards of decency,” which courts often measure with reference to changing state practices.  Though constitutional doctrine has played only a bit part in the execution decline, that decline could eventually reshape constitutional doctrine.

This story also complicates long-accepted constitutional theories.  While the traditional view is that federalism maximizes state policy choices so long as courts and Congress do not interfere, the lethal injection stalemate shows how non-governmental actors, even uncoordinated ones, can undermine state policies.  Courts and the political branches in some states stand united in support of capital punishment.  It is, therefore, noteworthy that unorganized actors pursuing their own institutional objectives have obstructed executions and even cast new long-term doubt on previously entrenched penological practices.

October 31, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Friday, October 30, 2020

How might the Prez clemency power be wielded next month and next year?

Mark Osler usefully ruminates on the question that serves at the title of this post in this extended new CNN opinion piece headlined "Get ready for a flood of Trump pardons."  I recommend the piece in full (which is much better than the headline likely picked by CNN just to be click bait).  Here is an extended excerpt:

Trump and Biden present very different issues relating to clemency (which includes the power to shorten sentences through a commutation or forgive convictions through pardons).  Trump already has shown his cards: Even taking into consideration the commutations granted last Wednesday to five worthy petitioners, his use of the pardon power has mostly favored friends and Fox News celebrities.  Even his much-celebrated commutation and pardon of Alice Marie Johnson came about only after another reality television star, Kim Kardashian West, intervened.  Biden, meanwhile, is a blank slate.  The concern some may have with him is that he will do too little, at a time when over-incarceration is being critiqued by experts and a broad array of citizens on both the left and right.

While interviewers continually (and appropriately) pepper Trump with questions about whether he will relinquish power if he loses, it is rare that anyone asks him who he might pardon after the election, despite the long and positively bizarre track record he has established.

Similarly, Joe Biden hasn't been pressed on the issue, and he certainly doesn't seem to have thought much about it: In response to a general question about criminal justice by NBC's Lester Holt at a town hall, Biden claimed that the Obama administration granted clemency to "18,000 people."  He was off by about 16,000 (he did better in the last debate, citing the number as "over 1,000").  It could be that Biden overestimates the effectiveness of the Obama clemency initiative, which offered too little, too late.  That well-intentioned project began only after years of inaction, as Obama granted just one commutation of sentence in his first five years.  It also failed to reach so many good cases that when Trump's First Step Act enabled 2,387 crack offenders to be released early, it amounted to far more than the Obama clemency program did, even though both projects targeted the same group.  Clearly, Obama left too many people behind.

Failing to focus on clemency when it matters also lets candidates off the hook for any specific plan for reform. And reform of every part of a system that has enabled systemic racism and unduly long sentences is important.  Right now, the clemency review process has seven steps, is controlled by the Department of Justice (conflicted because it sought the over-long sentences in the first place), and simply doesn't work.  There is broad support for the formation of a clemency review board to advise the president, and that idea even made it into the Biden-Sanders unity plan and the Democratic platform.  Biden, though, hasn't mentioned it (at least in the forums I have reviewed)— in large part because no one has asked.

Even if other criminal justice reforms are enacted, clemency must be reformed as well.  For one thing, other reforms don't do what one form of clemency, pardons, can do: free people from the restrictions of a conviction after they have completed a sentence.  For another, reforms that send cases back to the sentencing judges for review too often exacerbate disparities.  After all, judges who are tough at sentencing are less likely to give a break later, meaning that those who come before them could be disadvantaged. Clemency can be a way to reach those twice-victimized.

October 30, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Criminal Justice Citizenship"

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

The American criminal justice system is fundamentally democratic and should reflect an ideal of citizenship that is equal, participatory, and deliberative.  Unfortunately, the outcomes of criminal cases are now almost always determined by professionals (prosecutors, defense attorneys, and judges) instead of by juries.  This overly bureaucratized system of adjudication silences the voice of the people.  A better system would strengthen “criminal justice citizenship,” which refers to the right of the citizenry to participate, directly and indirectly, in the criminal justice system and to deliberate in its workings.

The three key principles of criminal justice citizenship are membership, participation, and deliberation. Membership refers to who can participate and whether they can participate on an equal basis.  Where the justice system adheres to this principle, people enjoy a greater sense of belonging, solidarity, and trust in government.  Participation refers to public participation in democratic processes, such as jury service.  Deliberation refers to structured dialogues between lay persons that affect governmental decisions.  Institutions and procedures must be designed to give the people an important role in government, but the nature and extent of that role should be limited by other considerations, such as procedural accuracy and preventing racial discrimination.

This theory of criminal justice citizenship has important applications to jury trials.  Regarding membership, providing broad and equal opportunities for jury service is necessary for democratic legitimacy and fair and effective deliberations. Regarding deliberation, jury trials need to be more transparent; the prevailing procedures of jury deliberations need to be modified; and unanimous verdicts must be required to protect the voice of potentially marginalized jurors.  Regarding participation, jury trials are so rare that it will be necessary to improve criminal justice citizenship by democratically reforming other aspects of the criminal justice system, such as plea bargaining.  The overarching principle is that the people need a more significant role in criminal adjudication, not only because popular participation is good for defendants, but also because it strengthens American democracy.

October 30, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Will problematic definition of "violence" convictions impact Oklahoma sentencing reform initiative SQ 805?

I have highlighted in a few prior posts SQ 805, a fascinating Oklahoma ballot initiative seeking to block non-violent prior convictions from enhancing statutory punishment ranges.  This new Mother Jones story provide useful context concerning Oklahoma reforms while also noting a potential problem with how SQ 805 is drafted.  The full headline of the piece serves to summarize its coverage: "How a Domestic Violence Loophole Could Doom a Campaign to Cut Oklahoma’s Harsh Prison Sentences: A wrinkle threatens public support for the state’s progress against mass incarceration."  I recommend the piece in full, and here are excerpts:

For the last four years, the fight against mass incarceration in Oklahoma has been a story of unlikely success.  In 2016, after decades of creeping prison populations, the state’s incarceration rate reached levels so astronomical that the Prison Policy Initiative would dub it the “world’s prison capital“: More than 1 in 100 Oklahomans was locked up in a prison, jail, juvenile hall, or immigration detention facility.  But that year, the same electorate that voted to send Donald Trump to the White House by a 36-point margin also approved a ballot measure softening their state’s notoriously hardline criminal code.

That measure, State Question 780, was a turning point.  It downgraded drug possession and a slate of minor property crimes from felonies to misdemeanors, while a second measure ensured the money saved by downsizing prisons would go to rehabilitative programs.  In 2017, 14,000 fewer felony charges were filed by Oklahoma prosecutors; not long after, the state’s prison population began to fall. Meanwhile, politicians took note of the message the voters had sent.  In 2018, the state legislature, where Republicans hold a supermajority, passed more reforms, including streamlining the parole process.  Republican businessman Kevin Stitt made reducing the prison population part of his pitch for the governor’s seat, and won.

This year, Oklahoma voters could send another jolt to the system by voting for State Question 805 — another adjustment to the state’s harsh sentencing practices.  If it passes, SQ 805 could reduce the prison population by 8.5 percent over the next 10 years, according to a projection by the Oklahoma Council of Public Affairs, a conservative think tank that supports the initiative.

SQ 805 would add a provision to the state constitution prohibiting prosecutors and courts from jacking up the sentences of people convicted of nonviolent felonies if they have an earlier nonviolent felony on their record....

But there’s a significant wrinkle threatening public support for SQ 805, and in turn, Oklahoma’s slow but steady progress against mass incarceration: The measure distinguishes violent from nonviolent felonies using an outdated list from Oklahoma’s legal code.  As of January, that list of “violent” crimes did not include certain domestic violence charges, such as domestic abuse by strangulation, or domestic assault with a dangerous or deadly weapon. If SQ 805 passes, it would continue to allow courts to impose enhanced sentences for any crimes on that list as of January 1, 2020 — including assault and battery, murder, rape, child abuse, and so on — but not those domestic violence charges.  (Oklahoma lawmakers added some domestic violence charges to the violent felonies list in May, too late for SQ 805’s cutoff date.)

Prior related posts:

October 30, 2020 in Offender Characteristics, Offense Characteristics, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, October 29, 2020

"The Right to Medication-Assisted Treatment in Jails and Prisons"

The title of this post is the title of this new article just posted to SSRN authored by Samuel Macomber. Here is its abstract:

Opioid withdrawal is a grueling physical ordeal.  Fortunately, the effects of withdrawal — physical suffering, mental distress, and mortality — can be mitigated by proper medical care. In most jails and prisons, however, individuals with opioid use disorder are denied access to proper medical care and are forced to endure involuntary withdrawal.  The refusal to provide adequate medical care for the serious health condition of opioid use disorder is unnecessary, unlawful, and deadly. 

This article argues that correctional facilities have an affirmative obligation to provide medication-assisted treatment to all incarcerated individuals with opioid use disorder, regardless of whether the patient was using legal prescriptions or illicit substances prior to incarceration.  Providing medication-assisted treatment will reduce suffering, save lives, and uphold the state’s promise of human dignity to those whose liberty is restricted by incarceration.  Further, this article argues that the Supreme Court should modify the legal standard for adequate medical care in correctional facilities so that courts need only consider the objective medical need of incarcerated individuals.

October 29, 2020 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Wednesday, October 28, 2020

Digging carefully into what the FIRST STEP Act has, and has not, really achieved

Malcolm C. Young, a long-time justice reform advocate, sent me an interesting new report he has completed titled "How Much Credit Should Trump be Given for the First Step Act?".  This new report, which I recommend in full, is a continuation of some research which was recently published in the Journal of Community Corrections under the title "The First Step Act and Reentry."  That Fall 2019 article makes the case that "as a law intended to improve federal reentry, the FSA falls short."  Young's new report, which can be downloaded below, is a detailed effort to pushback on some of Prez Trump's claims about "his" achievements through the FIRST STEP Act.  Here is an excerpt from the start of the report:

Trump is entitled to take credit for signing the FSA into law and the reductions in the federal prison use that followed. But the FSA, which was drafted by legislators, is neither the first nor the largest reform in recent years.  For examples, a reform in sentences for crack cocaine at the close of the George Bush administration reduced the use of federal prisons by close to three-quarters of the reduction obtained from the FSA.  A downward adjustment in drug sentences that cleared the United States Sentencing Commission (USSC) during the Obama administration resulted in nearly half-again as much a reduction in prison use (146%) as resulted from the FSA at the end of its first year.  And, finally, including the downward adjustment in drug sentences, Obama-era reforms resulted in more than double (230%) the FSA’s reduction in prison use in its first year.

As to benefits for Black Americans, the FSA’s reductions in sentences for crack cocaine benefited Black individuals disproportionally, as intended, yet very little more than did three similarly structured reforms intended to alleviate racial disparities in federal drug sentencing.  The FSA’s other provisions benefit smaller proportions of Black individuals.

As to reentry, the Trump administration's claim that, “[t]he landmark First Step Act enacted commonsense criminal justice reform that is helping prisoners gain a new lease on life and is making America safer” is, regrettably, simply not true.  These aspects of the FSA are not working.  But the fault lies more with Congress than Trump.

Download Trump and the First Step Act October 2020

October 28, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Drug Offense Sentencing, Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Tuesday, October 27, 2020

More great coverage of criminal justice players and issues on the 2020 ballot

In a few prior posts (here and here), I have flagged some effective reviews of many of the big races and issues appearing on state ballots this November.  I have now seen two more great accounts of the votes criminal justice fans should be following:

From The Appeal: Political Report, "Criminal Justice on the 2020 Ballot." The set up:

Thousands of prosecutors, sheriffs, governors, and attorneys general will be elected in 2020, on the heels of a series of wins by candidates who ran on fighting mass incarceration in 2019.  These offices set the policies that shape the prison population, the criminal legal system, cooperation with ICE, and much more.  This page features The Appeal: Political Report’s reporting and analyses of these often-overlooked but crucial elections.

From The Brennan Center for Justice, "Justice on the Ballot 2020." The set up:

With criminal justice on the ballot nationwide, we’ve compiled a list of 40 ballot initiatives and law enforcement electoral races worth watching on Election Day.  Our resource page provides short summaries of each criminal justice ballot initiative or race, with fresh and updated links to media coverage of the contests culled from reliable news sources.

From police oversight to immigration roundups in “sanctuary” jurisdictions, November’s election will have far-reaching consequences not just for federal criminal justice issues but also for state and local policies.  We hope our new page will serve as a handy guide leading up to Election Day and beyond to help you monitor key down-ballot races and causes.

UPDATE: I now see The Marshall Project has an additional new piece in this spirit headlined "7 States Where Voters Could Change the Future of Criminal Justice."

A few prior related posts:

October 27, 2020 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

"Should Criminal Justice Reformers Care About Prosecutorial Ethics Rules?"

A helpful reader made sure I did not miss this recent article with the title that I used for this post.  This piece is available on SSRN, was authored by Bruce Green and Ellen Yaroshefsky, and here is its abstract:

Criminal justice reform groups typically explore multiple avenues for improving the law and legal processes.  Among the campaigns are calls for more demanding laws governing prosecutors’ conduct and more effective oversight and enforcement of prosecutors’ compliance with their legal obligations.  Yet little advocacy is directed toward ethics rules governing prosecutors and encouraging courts and disciplinary bodies to adopt, interpret, and enforce professional conduct rules so as to demand more of them.  This article considers the reasons for such limited focus upon ethics rules and suggests the ways in which current rules regarding prosecutors' disclosure obligations and post-conviction ones can be effective avenues to enhance prosecutorial practices.

October 27, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

With Justice Barrett seated, isn't it now time to pack the Supreme Court ... with constitutional criminal procedure cases?

The question in the title of this post is prompted by all the intense Court-packing talk that I am seeing in some quarters this morning, combined with my hope that Justice Amy Coney Barrett might ultimately follow the path of the late Justice Antonin Scalia in developing a more rights-friendly jurisprudence regarding the Fourth and Fifth and Sixth Amendments.  Long-time readers know that Justice Scalia (as well as Justice Thomas) played critical roles in expanding Fifth and Sixth Amendment rights in cases like Apprendi and Blakely and Booker, and Justice Scalia's vision of constitutional vagueness was hugely consequential in the Johnson ACCA decision.  Notably, in recent Terms, Justice Gorsuch has followed Justice Scalia's jurispruidental path in the vagueness arena, and he also has shown much more affinity for a much more expansive view of Fourth and Sixth Amendment rights than most of his conservative colleagues.

I highlight these realities largely because all smart litigants, particularly appellate advocates, need to know their bench and need to adjust litigation and appellate strategies in light of the jurisprudential inclinations of that bench.  Even before Justice Amy Coney Barrett joined SCOTUS, the recent appointments of Justice Gorsuch and Kavanaugh meant that the Court could already be expected to vote certain ways on certain hot-button civil issues.  Justice Barrett's addition to the Court would seem to make certain expected outcomes even more likely.  But in the criminal justice arena, even with Justice Barrett now joining the Court, there are an array of important constitutional criminal procedure issues which I believe (or at least hope) do not have a jurisprudential outcome pre-scripted by the standard left-right divide.

Critically, matters of constitutional criminal procedure on topics ranging from qualified immunity to the operation of criminal registries to the trial penalty to the use of acquitted and uncharged conduct at sentencing impact literally thousands of Americans every single day in this nation.  At a time of long-overdue and still growing concerns about the operation of our criminal justice systems and with considerable bipartisan support for a range of reforms, I sincerely hope that advocates and litigants will seize this moment to try to pack the new Supreme Court with lots of lots of constitutional criminal procedure cases.

A few prior related posts:

October 27, 2020 in Who Sentences | Permalink | Comments (1)

Monday, October 26, 2020

Court filing by California Gov seeks tougher rules for state’s death penalty

This local article, headlined "Newsom, California district attorneys seek tighter standards for application of death penalty," reports on a notable new court filing by Governor of California. Here are the details:

Gov. Gavin Newsom, who has already declared a moratorium on executions in California, went a step further Monday with an unprecedented court filing that asserted the state’s death penalty law is applied in a racist manner against African Americans.

Newsom’s state Supreme Court filing did not call for abolition of the death penalty — an option narrowly rejected by California’s voters in 2012 and 2016 — but argued that a jury imposing a death sentence should be required to find beyond a reasonable doubt that it was the proper punishment, rather than life in prison without parole.

The governor also said jurors should be allowed to consider factors favoring the death penalty, such as other violent acts by the defendant, only if they agreed unanimously that those events had occurred. Those standards would make it more difficult for prosecutors to persuade jurors to return a death sentence....

“Since its inception, the American death penalty has been disproportionately applied — first, to enslaved Africans and African Americans, and, later to free Black people. With this filing, we make clear that all Californians deserve the same right to a jury trial that is fair, and that it is a matter of life and death.”

The brief was the first ever filed by a California governor challenging the state’s application of the death penalty and calling for restrictions.  A similar brief was submitted in the same case Monday by four district attorneys — Chesa Boudin of San Francisco, Diana Becton of Contra Costa County, Jeffrey Rosen of Santa Clara County and Tori Verber Salazar of San Joaquin County — and two former district attorneys, George Gascón of San Francisco and Gil Garcetti of Los Angeles County.

The six have varying views on capital punishment, but said in their filing that they wanted to “ensure that the death sentence is chosen (if at all) for only the worst offenders and offenses.”

Boudin, who like every San Francisco district attorney since 1995 has vowed not to seek the death penalty, said, “California’s death penalty is not only inconsistent with the values of a humane society, but is administered in a racially biased way.” Gascón, San Francisco’s chief prosecutor from 2011 to 2019, is running for district attorney in Los Angeles.

Newsom issued an executive order in March 2019, his third month in office, suspending executions in California, which has not executed a prisoner since January 2006.  He said at the time that the death penalty “is inconsistent with our bedrock values and strikes at the very heart of what it means to be a Californian.”

The state has 711 inmates on Death Row — more than one-third of them Black, Newsom said in his court filing. African Americans are also much more likely than others to be arrested and searched by police and to be the victims of police violence, the governor’s lawyers told the court.

The moratorium on executions has not stopped most county prosecutors from seeking death sentences, and has not stopped Attorney General Xavier Becerra’s office from defending those sentences before the state’s high court.

Monday’s filings were submitted in the case of Donte McDaniel, sentenced to death for fatally shooting two people in Los Angeles in 2004 in what prosecutors described as murders related to gangs and drugs.

In preparing for a hearing in McDaniel’s case, the state Supreme Court asked lawyers whether the California law should be interpreted to require jurors to decide beyond a reasonable doubt — the same standard required for convictions — whether death was the proper punishment.  The court also asked whether the law prohibits jurors from considering so-called aggravating factors, like a defendant’s past violent acts, unless they agree on those facts unanimously.

Newsom’s brief and the filing by the current and former prosecutors answered both questions affirmatively.  Requiring jurors to “unanimously determine beyond a reasonable doubt factually disputed aggravating evidence and the ultimate penalty verdict” are essential to preserving “the full protections of the jury right in capital sentencing,” said the governor’s lawyers, Dean Erwin Chemerinsky and Prof. Elisabeth Semel of the UC Berkeley Law School.

UPDATE: I came across the filing by the six current and former DAs, and it can be accessed at this link.  Here is the first paragraph of the filing's introduction:

On June 17, 2020, the Court asked the parties to address the following question: “Do Penal Code section 1042 and article I, section 16 of the California Constitution require that the jury unanimously determine beyond a reasonable doubt factually disputed aggravating evidence and the ultimate penalty verdict?”  This brief addresses that question from the perspective of four present district attorneys and two former district attorneys.  While these amici take different positions as to whether the death penalty should be abolished, they unanimously believe that death sentences are arbitrarily imposed under the current California death penalty statutes, and that the failure to construe the California Constitution and Penal Code Section 1042 to require the jury to choose death beyond a reasonable doubt and to unanimously find disputed facts relating to aggravating circumstances exacerbates the arbitrariness inherent in the State’s death penalty regime.

October 26, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

"Populist Prosecutorial Nullification"

The title of this post is the title of this notable paper authored by Kerrel Murray and available via SSRN.  I flagged this paper in a long list when it first showed up earlier this year.  But with so much voting going on these days, I thought it now especially timely to note the paper again and reprint its abstract:

No one doubts that prosecutors may sometimes decline prosecution notwithstanding factual guilt.  Everyone expects prosecutors to prioritize enforcement based on resource limitation and, occasionally, to decline prosecution on a case-by-case basis when they deem justice requires it.  Recently, however, some state prosecutors have tested the boundaries of this power by asserting the right to refuse categorically to enforce certain state laws.  Examples include refusals to seek the death penalty and refusals to prosecute prostitution or recreational drug use.

There is thus a burgeoning need for a pertinent evaluative framework.  To answer that call, this Article offers the first extended analysis of the normative import of the locally elected status of the state prosecutors who make such pledges.  In so doing, it finds that local elections make all the difference.  There may well be something suspect about unilateral prosecutorial negation of democratically enacted law.  Yet there is something distinctly democratic, and thus justifiable, about an elected prosecutor who can claim popular sanction for the exact same act.

This Article first unspools a once-robust American tradition of localized, populist criminal-law non-enforcement, best seen in jury nullification.  It then applies democratic theory to construct a normative basis for reviving that tradition in the context of state prosecutors’ categorical non-enforcement.  These moves uncover a before-now unappreciated connection: at least where the prosecutor ties her categorical nullification to the polity’s electorally expressed will, she accomplishes wholesale what nullifying juries could once do retail.  Appreciating that relationship helps uncover a phenomenon best thought of as populist prosecutorial nullification.  Building upon that finding, I set out a novel framework for evaluation of state prosecutors’ categorical non-enforcement that is keyed to the concept of localized popular will.

October 26, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, October 25, 2020

Covering just some of many criminal justice reforms stories percolating in 2020 election

Every election is important for the fate and future of criminal justice reform, but every even-year Fall it is hard not to get caught up in the notion that this year's election is uniquely significant and consequential.  As I noted in this prior post, the discussion at the last Prez debate leads me to be (foolishly?) hopeful that we will see some follow up to the FIRST STEP Act or some other form of of federal criminal justice reform in the coming years no matter who prevails at the federal level.  But surely the scope and contents of possible federal reform will depend not only on who is in the White House and who is in charge in Congress, but also on what kinds of reforms move forward and prove successful at the state and local level.   

Because the FIRST STEP Act at the federal level was made possible in part by the political and practical successes at the state level, even those focused primarily on the federal system ought to keep a close eye on state and local criminal justice reform and election realities.  Helpfully, there is a lot of good press coverage on all these topics these days, and here is a sampling:   

Some National Perspectives:

From The Appeal, "Your Guide To 30 Sheriff And Prosecutor Elections That Could Challenge Mass Incarceration: These are key local elections where criminal justice reform is on the line next month."

From the Drug Enforcement and Policy Center, "Drug Reforms on the 2020 Ballot: A closer look at drug policy reform decisions voters will make during the 2020 election"

From Fox News, "Marijuana-legalization supporters tout economic benefits in new voter pitch: Advocates argue sales and excise taxes would help bail out states crushed by coronavirus"

From Reason: "On Criminal Justice, Trump and Biden Are Running Against Their Own Records: The progressive who helped usher in mass incarceration is running against the law and order conservative who let prisoners go free."

From Vox, "How 2020 voters could change the criminal justice system, in 6 ballot measures: Voters in several states have a chance to change the criminal justice system in 2020."

From Vox, "2020’s psychedelic drug ballot measures, explained: Oregon and Washington, DC, voters may relax their laws for psychedelic drugs."

 

Some State Specifics:

From the Denver Post, "Half of Colorado’s district attorneys will be replaced after election, setting scene for future of criminal justice reform"

From Governing, "California to Vote on What’s Next for Criminal Justice Reform: The state’s Proposition 20 would expand felonies which are ineligible for parole and collect DNA samples of misdemeanor offenders. Californians must decide if it assures public safety or is backward progress."

From The Oklahoman: "Five things to know about Oklahoma State Question 805"

From Vox, "Oregon’s ballot measure to decriminalize all drugs, explained: The ballot measure is trying to move the state from a criminal justice to a public health approach on drugs."

October 25, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Who Sentences | Permalink | Comments (2)

Final looks at Judge Amy Coney Barrett's criminal justice record before she starts to build a criminal justice record as a Justice

As I understand matters, the US Senate is poised to confirm Amy Coney Barrett as the next US Supreme Court Justice and the only confirmation question seems to be how many Senate votes she will get on Monday.  But, of course, the big jurisprudential question for sentencing fans is how might a Justice Barrett approach a range of criminal justice issues as an avowed originalist jurist.  The late Justice Scalia and current Justices Alito, Gorsuch, Kavanaugh and Thomas, and even Chief Justice Roberts, lay claim at least some times to being originalists, and yet their votes on a range of constitutional criminal justice issues can and do vary.  And, of course, the Supreme Court considers a host of non-constitutional criminal justice concerns as well.

I have covered some prior analyses of Judge Barrett's criminal justice record in prior posts that can be found linked below.  This week I saw a couple more, and the subheadlines of these pieces highlight that they are developing distinct accounts of what we might expect from a Justice Barrett:

From The Appeal, "Amy Coney Barrett’s Record On Criminal Justice Is ‘Deeply Troubling,’ Reform Advocates Say: In the midst of a national debate about changing the criminal legal system, Barrett is set to take a lifetime seat on the U.S. Supreme Court. Advocates see her addition as a potential setback to creating a more fair system."

From Washington Monthly, "The Criminal Justice of Amy Coney Barrett: The soon-to-be Supreme Court Justice has a more interesting record on prisons, prosecutors and a slew of justice issues than you might think."

The closing paragraph of this second piece provides a fitting final question as we anticipate a new era for SCOTUS with a new Justice:

Barrett has such a well-schooled intellect that all her opinions are intricately woven out of existing case law and statutory text, so — in the criminal justice arena, at least — she has not departed wildly from the web of precedent that confines her. She said more than once at her hearing that a judge is obliged to rule where the law takes her, which may violate her personal views.  But once she’s on the Supreme Court and freer to chart her course, then what?

Notably, we may not have to wait too long to get a glimpse of how a Justice Barrett might approach sentencing and broader criminal justice issues.  Assuming she is confirmed to the Court this week, she will be on the bench in time to hear, on November 3, oral argument in Borden v. US, No. 19-5410 (concerning ACCA application and mens rea matters), and Jones v. Mississippi, No. 18-1259 (concerning application of Miller's Eighth Amendment rules for juvenile LWOP).  And just weeks later, the Court will also hear oral argument, on November 30,  in Van Buren v. USNo. 19-783 (concerning reach of Computer Fraud and Abuse Act), and Edwards v. VannoyNo. 19-5410 (concerning whether the SCOTUS unanimous jury Ramos ruling applies retroactively). 

These criminal cases that a Justice Barrett will be considering in just her first few weeks on the Supreme Court present an array of challenging issues for committed textualists and originalists, especially because these cases implicate in various ways an array of past precedents that a committed textualist and originalist might not be so eager to follow.  Interesting times.

Prior related posts:

October 25, 2020 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, October 23, 2020

"Framing Individualized Sentencing for Politics and the Constitution"

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

For decades, there was not much growth in the U.S. Supreme Court’s interpretation and application of the Eighth Amendment.  In recent years, though, the Court has expanded the Amendment to prohibit executing intellectually disabled and juvenile offenders, to ban capital punishment for all non-homicide offenses against individuals, and to prohibit life-without-parole for juveniles when that punishment was mandatorily imposed or imposed on non-homicide offenders.  With changing politics and a changing Court, any further expansion of Eighth Amendment protections will likely be difficult for years to come.  With the recent nomination of Amy Coney Barrett as the newest Supreme Court Justice, the Court is becoming more conservative.  Politics certainly influence law, even at the Supreme Court level, so future changes in politics even outside the Court could affect Eighth Amendment interpretations.  When making Eighth Amendment arguments to the Court, framing is important.

This Article suggests that, in this political landscape, there may be some hope for the expansion of the constitutional requirement of individualized sentencing.  While the Court has historically reserved this requirement for capital cases, its more recent cases have whittled away at the distinction between capital and non-capital cases under the Eighth Amendment.  Further, the Court has already extended its constitutional requirement of individualized sentencing beyond the capital context, at least to some extent.  While recent cases suggest that the Court is positioned to further expand the Eighth Amendment requirement of individualized sentencing, politics will likely have a role to play.  If one carefully frames the argument, there is the potential that persons across the political spectrum may find enhancing individualized sentencing under the Eighth Amendment appealing. 

First, expanding this requirement could result in more progressive sentencing practices, including the prohibition of mandatory sentences and mandatory minimum sentences.  It could also work to effect more humane prison conditions.  Further emphasizing individualized sentencing, however, does come with the risk of weakening uniformity and equality in sentencing.  On the other hand, individualized sentencing may also have appeal across the political aisle with religious conservatives — at least theoretically. Individualized sentencing is rooted in the notion of human dignity, which is central to Christian beliefs.  Further, individualized sentencing allows greater room for reform and rehabilitation, which are often achieved through religious means.  Finally, the increasing practice of individualization throughout our lives — from individualized medicine to individualized advertising — is conditioning Americans to expect enhanced individualization across disciplines.  A heightened constitutional focus on individualized sentencing would be consistent with such expectations.  Further, improved science and technology are regularly arming us with additional tools to better achieve individualized determinations related to sentencing considerations like culpability, deterrence, and rehabilitation.  This provides a foundation for the Court to build on its precedents to increase the Eighth Amendment requirement of individualized sentencing.

October 23, 2020 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, October 22, 2020

Some notable (and mostly heartening) criminal justice discussion in final Prez debate of 2020

Few months ago in this post I wished that we could somehow arrange for one of the then-planned Prez debates to be entirely about criminal justice issues.  Of course, that did not happen (and only two of the three planned debates even happened).  Still, during the final Prez debate of this election cycle, criminal justice issues received more discussion than in any other Prez debate in recent memory, and I am tempted to call the discussion heartening for a variety of reasons.

For starters, Prez Trump bragged repeatedly about his role in achieving "criminal justice reform and prison reform," and he also criticized former VP Biden for his past role in enacting federal criminal justice legislation in the 1980s and 1990s that "put tens of thousands of mostly Black young men in prison."  It was not that long ago that candidates were regularly competing to claim they were tougher than their opponents, but tonight Prez Trump assailed Biden for his tough-on-crime past while claiming credit for most progressive federal criminal justice reform in a generation (the FIRST STEP Act).

Meanwhile, VP Biden stated that the drug offense part of federal criminal legislation in the 1980s and 1990s was "a mistake," and he bragged that during the Obama administration "38 thousand prisoners [were] released from federal prison [and] over 1000 people given clemency."  And even more notable was Biden's plain statement that "there should be no minimum mandatories in the law."  Again, it was not that long ago that politicians were eager to brag about enacting mandatory minimums and about putting more people in prison.  Now the talking points focus on releasing prisoners and the pledge it to repeal mandatory minimums.

For these reasons and others, I remain mildly optimistic that we will see some measure of progress on some kind of follow up to the FIRST STEP Act or some other form of criminal justice reform in the coming years no matter who prevails in the coming election.  But I think the scope and contents of reform will surely look a look different, and the pace and implementation of any reform will surely transpire a lot differently, depending on who is in the White House and who is in charge in Congress.  Interesting times.

October 22, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

Wednesday, October 21, 2020

Prez Trump grants commutations to five persons given long federal prisons terms (though two were already out of prison)

I was a bit surprised and a lot pleased to see a release today from the White House titled "Statement from the Press Secretary Regarding Executive Grants of Clemency" providing news an details surrounding the decision by Prez Donald Trump to commute five federal sentences.  Here is the full statement:

Today, President Donald J. Trump signed Executive Grants of Clemency to commute the sentences of the following individuals: Lenora Logan, Rashella Reed, Charles Tanner, John Bolen, and Curtis McDonald.

Lenora Logan turned her life around after she was sentenced to 27 years in prison for her role in a cocaine conspiracy.  During her time in prison, she heroically came to the aid of a Bureau of Prisons nurse who was under vicious assault by an unstable inmate.  Without regard for her own safety, Ms. Logan immediately intervened and protected the life of the nurse.  This heroic act is but one example of Ms. Logan’s selfless acts since forging a better path for her life.  While incarcerated, Ms. Logan served as a suicide watch companion, a nursing assistant for those in hospice care, and a leader of the praise and worship team.  After serving approximately 20 years in prison, Ms. Logan, a mother and grandmother, was awarded compassionate release from the Bureau of Prisons.  Ms. Logan expresses regret for her past actions, exemplifies successful rehabilitation, and embodies the spirit of second chances.

Rashella Reed was a former Atlanta Public School teacher before her involvement in a public benefits fraud scheme.  She was sentenced to 14 years in prison after her convictions for wire fraud and money laundering.  While in prison, Ms. Reed used her teaching background to tutor inmates and facilitate children’s programs at the prison.  Ms. Reed is a model inmate, and many attest to her innate ability to encourage and uplift others despite her circumstances.  Ms. Reed accepts full responsibility for her actions and seeks to continue to make a difference in the lives of others.  After serving more than 6 years in prison, Ms. Reed was released on home confinement where she enjoys strong community and family support.

Charles Tanner was a young professional boxer with a promising career who sadly became involved in a drug conspiracy.  At the age of 24, he was arrested, tried, and initially sentenced to life in prison, which was later reduced to 30 years.  It was his first conviction of any kind.  He has served 16 years in prison.  Although Mr. Tanner began incarceration under a life sentence, he immediately worked to better himself by enrolling in educational courses.  To date, Mr. Tanner has completed hundreds of hours of educational programming, including an 18-month re-entry program that requires recommendation from staff and approval from the Warden for participation.  Mr. Tanner accepts responsibility and expresses remorse for his past actions.  Letters from his friends and family describe him as a respectful man of faith who exhibits positivity and works hard.

John Bolen was a small business owner who used his boat to transport cocaine from the Bahamas to Florida.  After a jury trial, he was sentenced to life imprisonment.  It was his first conviction of any kind, and Mr. Bolen has no documented history of violence.  He has served more than 13 years in prison without incident.  He has completed more than 1,300 hours of educational programming and vocational training, multiple re-entry programs, and has served as both a suicide companion and a mental health companion.  Mr. Bolen expresses “deep regret and shame” for his mistakes.  Several Bureau of Prison officials who have supervised Mr. Bolen describe him as a “model inmate,” a “regular hard working blue collar guy who simply stumbled along life’s path and made a mistake,” and someone who “displays dedication” in assisting others.

Curtis McDonald was convicted in 1996 for drug trafficking and money laundering and is now 70 years old.  After a jury trial, he was sentenced to life in prison.  He was a first-time offender who has now served nearly 24 years in prison and has an excellent record of good conduct.  Mr. McDonald has made productive use of his time in prison, maintaining employment with good job evaluations, and has completed numerous education courses.  Mr. McDonald has also served as a mentor in the Mentors for Life program.  He acknowledges that “the law is the law and I broke it” and attests that he is “not the same man I was walking through these doors” decades ago.  Mr. McDonald vows that despite his life sentence, he has been determined to “take advantage of every opportunity to help myself grow . . . so that I may be of use to those who want and need it.”

In light of the decisions these individuals have made following their convictions to improve their lives and the lives of others while incarcerated, the President has determined that each is deserving of an Executive Grant of Clemency.

I am always pleased to see any chief executive use his or her power of clemency wisely, though this handful of grants will not keep me from criticizing Prez Trump for still using his powers too sparingly in general and especially in the times of a pandemic.  I do not know any of the back stories of these cases, but I find it interesting that two of these five recipient were apparently already out of prison.  It is also somewhat notable that four of the five persons here receiving commutations were convicted of drug offenses.

A few of many prior related posts:

October 21, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, October 20, 2020

Notable ideas and efforts to take on the trial penalty

A helpful reader made sure I did not miss these two recent interesting items related to the pernicious realities of the trial penalty:

Commentary from Shon Hopwood and Brett Tolman, "Amy Coney Barrett Could Help Repair Unconstitutional Aspects of the Criminal Justice System."  An excerpt (links from original):

The Constitution matters.  Yet, in our current criminal justice system, every day a fundamental component of the U.S. Constitution is trampled upon.  When a person accused of a crime chooses to defend themselves and to exercise their Sixth Amendment right to a “speedy and public trial” instead of accepting a plea deal, they should not be punished more severely for exercising this constitutional right.  As the nation watched the confirmation hearing of constitutional scholar and jurist Amy Coney Barrett, it was apparent that her intellect, her adherence to the text of the Constitution, and her discipline in preserving constitutional rights and protections make her a fitting replacement to Justice Ruth Bader Ginsburg and a justice poised to help repair a broken and unconstitutional aspect of the criminal justice system: the trial penalty.

The “trial penalty” isn’t just some law school exam hypothetical, but the real-life consequence of choosing to exercise a constitutional right and make the government actually prove their case.  A 2018 report from the National Association of Criminal Defense Lawyers found that “Guilty pleas have replaced trials for a very simple reason: individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose.”  Former federal judge, John Gleeson, wrote in the introduction to this “trial penalty” report, “[p]utting the government to its proof is a constitutional right, enshrined in the Sixth Amendment; no one should be required to gamble with years and often decades of their liberty to exercise it.”

News Release from the National Association of Criminal Defense Lawyers, "NACDL Trial Penalty Clemency Project Submits First Set of Petitions to White House."  An excerpt (links from original): 

On October 2, 2020, NACDL’s Trial Penalty Clemency Project submitted its first set of federal clemency petitions to the Office of the Pardon Attorney and to the White House.  Of the six petitions, three concern individuals serving life sentences and a fourth concerns an individual serving an 835-year sentence.  Taken together, the sentences of these six individuals, as compared to the sentences of their co-defendants or to the plea deals offered to them, represent over 100 years of punishment solely due to the fact that these individuals exercised their Sixth Amendment right to go to trial — a defining feature of the modern American criminal legal system known as the trial penalty.

While society is awakening to the number of wrongs embodied in the trial penalty, there are a number of individuals enduring the trial penalty as they serve excessively long prison sentences as a result of electing to go to trial and holding the government to its burden.  The only remedy for these individuals is executive clemency. The Trial Penalty Clemency Project aims to assist those individuals by pairing applicants with volunteer attorneys who will assist them in preparing a clemency petition. Reform is needed to end the trial penalty.  In the interim, this Project provides an opportunity for a second chance to those individuals who are living it....

In 2018, NACDL released a groundbreaking report – The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. Information and a PDF of NACDL’s 2018 Trial Penalty report, as well as video of the entire 90-minute launch event at the National Press Club in Washington, DC, and other trial penalty-related videos and materials are available at www.nacdl.org/trialpenaltyreport.

In 2019, The Federal Sentencing Reporter, published by University of California Press, released a double issue covering April and June 2019, edited by NACDL Executive Director Norman L. Reimer and NACDL President-Elect Martín Antonio Sabelli, entitled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."

A few prior related posts:

October 20, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, October 19, 2020

"The Complexities of Conscience: Reconciling Death Penalty Law with Capital Jurors’ Concerns"

The title of this post is the title of this notable new paper available via SSRN and authored by Meredith Rountree and Mary Rose. Here is its abstract:

Jurors exercise unique legal power when they are called upon to decide whether to sentence someone to death.  The Supreme Court emphasizes the central role of the jury’s moral judgment in making this sentencing decision, noting that it is the jurors who are ‘best able to express the conscience of the community on the ultimate question of life or death.’” Many lower courts nevertheless narrow the range of admissible evidence at the mitigation phase of a capital trial, insisting on a standard of legal relevance that interferes with the jury’s ability to exercise the very moral judgment the Supreme Court has deemed essential.

Combining moral theory and original empirical evidence, this Article breaks new ground by linking these to a legal framework that gives full effect to the Supreme Court’s vision of the jury.  Aided by a novel dataset of federal capital jury verdict forms, the Article focuses on three types of evidence frequently excluded in state and federal courts: the impact of the defendant’s execution on loved ones, co-participant sentences, and the government’s negligent facilitation of the murder.

The data show that jurors consistently find all three forms of evidence highly salient in their mitigation deliberations.  Further, two of these — execution impact evidence and co-participant sentences — have a statistically significant correlation with the jurors’ sentencing decision.  This Article’s empirical and moral account of juror behavior strongly supports expanding the admissibility of this evidence to reflect the Supreme Court’s evolution in defining the relevance of mitigating evidence as a moral, rather than legalistic, question, appropriately recognizing the jury’s normative role.

October 19, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Notable SCOTUS Fourth Amendment activity, but nothing for sentencing fans

I flagged in this post from June my sense that the Supreme Court has become particularly (and problematically) quiet on sentencing matters.  This feeling continues with this morning's new SCOTUS order list in which the Court granted cert on three new cases, but denied cert without comment in the Demma reasonableness review case flagged here.  I suppose the coming oral arguments in Borden v. US, No. 19-5410 (another ACCA application case), and especially Jones v. Mississippi, No. 18-1259 (application of Miller), provide plenty to keep sentencing fans engaged for now.  But I remain disappointed that SCOTUS has now been quiesced on a range of (non-ACCA) federal sentencing issues for quite some time.

But, perhaps unsurprisingly in light of other 2020 events, it does seem like the Justices are getting ever more engaged on Fourth Amendment issues.  Specifically, one of the new cert grants comes in Lange v. California, which SCOTUSblog describes this way: "Whether the pursuit of a person whom a police officer has probable cause to believe has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant."

In addition, Justice Gorsuch, joined by Justices Sotomayor and Kagan, issued a notable five-page statement respecting the denial of certiorari in another Fourth Amendment case, Bovat v. Vermont.  This statement includes a picture so that readers can better visualize the police activity which gets verbally described this way:

Suspecting Clyde Bovat of unlawfully hunting a deer at night (Vermont calls it a “deer jacking”), game wardens decided to pay him a visit to — in their words — “investigate further.”  But the wardens admit that “pretty soon after arriving” they focused on a window in Mr. Bovat’s detached garage.  Heading there and peering inside, the wardens spotted what they thought could be deer hair on the tailgate of a parked truck.

I am never troubled when all sort of police activity, even concerning deer hair and deer jacking, gets subject to appropriate scrutiny.  But I still see so many federal (and state) sentencing activities that could merit so much more SCOTUS scrutiny.

October 19, 2020 in Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sunday, October 18, 2020

Heartening stories of problematic sentences ameliorated by parole grants

A few years ago, in this article titled "Reflecting on Parole’s Abolition in the Federal Sentencing System," I explained why I thought "parole might serve as an efficient and effective means to at least partially ameliorate long-standing concerns about mandatory minimum statutes and dysfunctional guidelines" and why sentencing reformers "ought to think about talking up the concept of federal parole anew."  My basic thinking is that parole can and sometimes will usefully serve as a kind of second-look sentencing mechanism to indirectly fix the most problematic of sentences. This article and thinking came to mind when I recently saw these two heartening press stories about ugly sentences partially ameliorated by parole grants:

From Alabama, "Disabled Iraqi War vet imprisoned for medical marijuana possession granted parole."  An excerpt:

Disabled Iraqi War veteran Sean Worsley, who was arrested while driving through in Pickens County in 2016 and charged with felony possession of medical marijuana legally prescribed in his home state of Arizona, was granted parole on Wednesday by the Alabama Board of Pardons and Parole after being incarcerated more than eight months.

With marijuana illegal in Alabama, Worsley, a Purple Heart recipient, was sentenced to five years in prison.  On September 23, he was transferred from the Pickens County Jail to the Draper Correctional Facility. Parole was granted with special conditions — that Worsley undergoes a drug test upon release.

From Louisiana, "Black man serving life sentence for stealing hedge clippers granted parole." An excerpt:

A Black man in Louisiana serving life in prison for stealing hedge clippers more than two decades ago was granted parole — months after the state's Supreme Court declined to review his sentence.  The Board of Pardons and Committee on Parole voted Thursday to release Fair Wayne Bryant, 63, records show.  He walked out of prison later that day after serving more than 20 years at the state penitentiary in Angola, his attorney said....

Bryant was 38 when he was arrested in January 1997 for taking a pair of clippers from a carport storeroom at a home in Shreveport. The homeowner was alerted to the theft and chased Bryant off.  That same year, a jury convicted him of attempted simple burglary of an inhabited dwelling, and Bryant, who had previous convictions, was sentenced to life in prison because he was considered a "habitual" offender under state law.

Bryant in previous appeals argued that his sentence was "unconstitutionally harsh."  But in July, the state's Supreme Court declined to review his sentence.

October 18, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

US Department of Justice sets two more execution dates, including for the only woman on federal death row

In this July post I wondered aloud "How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?".  My main point in that post was that, after the completion of an initial three federal executions that month thanks to SCOTUS lifting lower court stays, it seemed to me that AG Barr would likely be able to have completed how ever many executions he decides to set.  Thereafter, the US Justice Department set two more execution dates for August and two more for September, and those executions were completed to bring the 2020 total of federal executions up to seven. 

For anyone who might have thought AG Barr would be content with seven execution in 2020, this DOJ press release from late Friday afternoon might have come as a bit of a surprise.  This release is titled  "Executions Scheduled for Two Federal Inmates Convicted of Heinous Murders" and here are excerpts:

Attorney General William P. Barr today directed the Federal Bureau of Prisons to schedule the executions of two federal death-row inmates, both of whom were convicted of especially heinous murders at least 13 years ago.

  • Lisa Montgomery fatally strangled a pregnant woman, Bobbie Jo Stinnett, cut open her body, and kidnapped her baby.  In December 2004, as part of a premeditated murder-kidnap scheme, Montgomery drove from her home in Kansas to Stinnett’s home in Missouri, purportedly to purchase a puppy.  Once inside the residence, Montgomery attacked and strangled Stinnett—who was eight months pregnant—until the victim lost consciousness.  Using a kitchen knife, Montgomery then cut into Stinnett’s abdomen, causing her to regain consciousness.  A struggle ensued, and Montgomery strangled Stinnett to death.  Montgomery then removed the baby from Stinnett’s body, took the baby with her, and attempted to pass it off as her own.  Montgomery subsequently confessed to murdering Stinnett and abducting her child.  In October 2007, a jury in the U.S. District Court for the Western District of Missouri found Montgomery guilty of federal kidnapping resulting in death, and unanimously recommended a death sentence, which the court imposed....  Montgomery is scheduled to be executed by lethal injection on December 8, 2020, at U.S. Penitentiary Terre Haute, Indiana. 
  • Brandon Bernard and his accomplices brutally murdered two youth ministers, Todd and Stacie Bagley, on a military reservation in 1999.  After Todd Bagley agreed to give a ride to several of Bernard’s accomplices, they pointed a gun at him, forced him and Stacie into the trunk of their car, and drove the couple around for hours while attempting to steal their money and pawn Stacie’s wedding ring.  While locked in the trunk, the couple spoke with their abductors about God and pleaded for their lives.  The abductors eventually parked on the Fort Hood military reservation, where Bernard and another accomplice doused the car with lighter fluid as the couple, still locked in the trunk, sang and prayed.  After Stacie said, “Jesus loves you,” and “Jesus, take care of us,” one of the accomplices shot both Todd and Stacie in the head—killing Todd and knocking Stacie unconscious.  Bernard then lit the car on fire, killing Stacie through smoke inhalation.  In June 2000, a jury in the U.S. District Court for the Western District of Texas found Bernard guilty of, among other offenses, two counts of murder within the special maritime and territorial jurisdiction of the United States, and unanimously recommended a death sentence....  Bernard is scheduled to be executed by lethal injection on December 10, 2020, at U.S. Penitentiary Terre Haute, Indiana.  One of his accomplices, Christopher Vialva, was executed for his role in the Bagleys’ murder on September 22, 2020.

Recent prior related posts:

UPDATE: I just realized that I failed to note this September 30 DOJ press release concerning another execution date set for November 19:

Attorney General William P. Barr today directed the Federal Bureau of Prisons to schedule the execution of Orlando Cordia Hall, who was sentenced to death after kidnapping, raping, and murdering a 16-year-old girl in 1994....  In October 1995, a jury in the U.S. District Court for the Northern District of Texas found Hall guilty of, among other offenses, kidnapping resulting in death, and unanimously recommended a death sentence, which the court imposed.  Hall’s convictions and sentences were affirmed on appeal more than 20 years ago, and his initial round of collateral challenges failed nearly 15 years ago.  In 2006, Hall received a preliminary injunction from a federal district court in Washington, D.C., based on his challenge to the then-existing federal lethal-injection protocol.  That injunction was vacated by the district court on Sept. 20, 2020, making Hall the only child murderer on federal death row who is eligible for execution and not subject to a stay or injunction.  Hall’s execution is scheduled for Nov. 19, 2020, at U.S. Penitentiary Terre Haute, Indiana.

October 18, 2020 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Saturday, October 17, 2020

Understanding Proposition 20, the latest chapter of California's experiments with sentencing reform via initiative

I have noticed more than a few recent media pieces about the notable sentencing reform measure on the ballot in California this year, Proposition 20, and here is a sample:

The start of the LA Times piece seems to provide a pretty clear account of the range of complicated state reform realities connected to Prop 20:

As much of the country weighs changes to the criminal justice system, California has had a head start, adopting a series of laws in the last decade that, among other things, helped reduce the state’s prison population by more than one-third, or 50,000 people.

Now a group of prosecutors and law enforcement leaders has placed Proposition 20 on the November statewide ballot, which would expand the list of felonies for which the convicted are ineligible for early parole; increase penalties for repeat shoplifters; and collect DNA samples from adults convicted of some misdemeanors.

Proponents argue that it is needed to fix flaws in past measures that they say are putting the public’s safety at risk, including the early release of potentially violent criminals. But opponents of the measure, who include civil rights leaders, Gov. Gavin Newsom and former Gov. Jerry Brown, say it wrongly rolls back necessary criminal justice reforms as crime has declined in recent years. “California is ahead of the game — we’ve done so many great reforms,” said Assemblyman Jim Cooper (D-Elk Grove), a retired sheriff’s captain and proponent of Proposition 20. “But there have been unintended consequences with these reforms.”

Brown, who led past reform efforts, called the initiative “very inhuman.” He said it takes away hope and incentives for prison inmates to pursue educational opportunities and demonstrate good behavior to improve their chances of getting out early. “Proposition 20 is supported by a very narrow group of people who don’t accept even the modest prison reforms that I was able to achieve,” Brown said. “It’s driven by ideology and, in some cases, by a total lack of understanding of human nature and no sense of redemption or allowing people to put their lives on track. It’s vindictive.”

Brown was governor when the U.S. Supreme Court ruled in 2011 that California’s prisons were overcrowded in violation of constitutional protections.  That year, he signed Assembly Bill 109 into law to reduce the state prison population by requiring that many people convicted of felonies not involving violence or sex offenses serve their sentences in county jails instead of state prison.

In 2014, California voters approved Proposition 47, which reclassified many lower-level drug and property crimes from felonies to misdemeanors.  Before then, thefts could be considered a felony if stolen merchandise was valued at $450 or more, but Proposition 47 raised the threshold to $950.

Proposition 57, which Brown developed and was approved by California voters in 2016, increased parole and good behavior opportunities for those convicted of nonviolent felonies.

The new initiative to be voted on Nov. 3 makes key changes in the previous three laws.

The measure would broaden the list of crimes that make inmates ineligible for early release from state prison through the parole program in Proposition 57, adding 22 offenses, including trafficking a child for sex and felony domestic violence.

The measure also would increase penalties for people who commit multiple thefts, including serial shoplifting, to address a spate of such crimes, and would mandate the collection of DNA samples from adults convicted of crimes newly classified as misdemeanors under AB 109, including forging checks and certain domestic violence crimes.

In addition, Proposition 20 would require the state Board of Parole Hearings to weigh an inmate’s entire criminal history when deciding parole, not just the most recent offense, which was the standard set by AB 109.

The nonprofit, nonpartisan group CalMatters has this helpful page about Prop 20 which includes a two-minute video seeking to summarize the initiative.  This Ballotpedia page on Prop 20 reveals a lot of money has been donated to both the proponents and opponents of this reform, but it does not report on any polling on the topic.  I have seen other reports on polling calling this ballot issue a "coin toss" because of so many undecideds.  In other words, as always seems to be the case, California in Nov 2020 is yet again a state to watch for those interested in the state of criminal justice reform efforts.

October 17, 2020 in Campaign 2020 and sentencing issues, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, October 15, 2020

Another notable cert petition providing the new Justices (and older ones) another chance to look at reasonableness review of federal sentences

In this post a few years ago, I flagged an interesting cert petition while asking in my post title "Now a full decade after Rita, Gall and Kimbrough, do any Justices still care about reasonableness review?".  That post from April 2018 stemmed from my frustration with the US Supreme Court's seeming disinterest in examining how reasonableness review of federal sentences was functioning in the circuits.  For years and years, judges, scholars and commentators have suggested that the appellate review of sentences — and all of federal sentencing under advisory Guidelines — would benefit significantly from the Court's further guidance on the contours of reasonableness review. 

As long-time readers likely know, I have long been particularly troubled by the so-called "presumption" of reasonableness permitted by Rita v. US, 551 U.S. 338 (2007), which has largely functioned as a problematic, un-rebuttable, safe-harbor for within-guideline sentences even in settings where the US Sentencing Commission's data and analysis demonstrate the obvious unreasonableness of certain guideline provisions.  But, over these oh-so-many-years of excessive federal sentences, my grumpiness over the failure of SCOTUS to take up reasonableness review anew has largely turned to resignation and acceptance of the fact that the Justices were just not that into the issue.

But perhaps hope should spring eternal, especially with Carissa Hessick flagging a new cert petition in this extended PrawfsBlawg post titled "Supreme Court Weighs Whether to Hear Possible Sentencing Law Blockbuster."  Here are excerpts (and links) from Carissa's post:

This Friday, the Supreme Court will decide whether to grant certiorari in Demma v. United States.  Demma raises two questions under the Supreme Court’s Sixth Amendment sentencing doctrine: (1) the extent to which judges can sentence outside of the Federal Sentencing Guidelines based only on a policy disagreement with the Guidelines, and (2) how much appellate courts must defer to the substantive sentencing decisions of district court judges....

Both of the legal questions raised by the Demma petition are important.  And frankly, I am surprised that the Supreme Court has yet to resolve them in favor of district court discretion to sentence outside of the Guidelines.  I suspect that the Court hasn’t clarified these issues because it wants judges to impose Guidelines sentences in most cases.  And while the Court’s Sixth Amendment sentencing doctrine doesn’t allow the Court to accomplish that directly, it has tried to do so indirectly through allowing the courts of appeals to take different approaches on these questions.

But I find that decision — the decision to allow different legal standards for sentencing — troubling.  The Supreme Court ordinarily prides itself on resolving legal disagreements between the circuits.  And it seems especially ironic to allow different courts of appeals to have different legal standards when it comes to sentencing.  After all, the remedial majority in Booker said that it was creating an advisory Guidelines system because it wanted to promote uniformity in sentencing.  Different legal standards in different circuits is hardly likely to lead to uniformity.

And we don’t have sentencing uniformity right now.  Instead we have sentencing practices that vary wildly depending on the circuit.  Because different circuits have different sentencing case law, judges in some circuits are far more likely to sentence outside of the Guidelines than judges in other circuits.... 

The chances that the Court will grant cert in Demma look pretty good.  The Court called for a response from the Solicitor General (who had initially waived response).  The Court also relisted the petition after an earlier conference.

I really hope that the Justice vote to grant cert in this case.  And I hope that they resolve these questions in a way that vindicates the Sixth Amendment right that they first acknowledged in Apprendi.

Give the Supreme Court's long history of dodging many reasonableness review issues for now more than a dozen years, I am a bit fearful of the statement that the "chances that the Court will grant cert in Demma look pretty good."  But as the title of this post hints, I am hopeful that the newer members of the Court, Justices Gorsuch and Kavanaugh, who had to grapple with reasonableness review issues during long tenures as circuit judges, might now be eager to help further define the contours of reasonableness review. 

In the end, though, I suspect Justice Breyer is always a critical Justice on this front, as he both created reasonableness review with his remedial opinion in Booker and defined its essential form in Rita.  If Justice Breyer's voice and vote on these matters carry some extra weight, those of us eager to see the full Court take up reasonableness review might need to root for him to be eager to tackle these issues yet again. 

Some (of many, many) older related posts about reasonableness review:

October 15, 2020 in Booker and Fanfan Commentary, Booker in the Circuits, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, October 14, 2020

Criminal justice issues again on the SCOTUS oral argument docket today (though again attention is on confirmation hearings)

The criminal justice cases on the SCOTUS docket that are likely of the greatest interest to sentencing fans are scheduled for oral argument on Nov 3 (aka Election Day): Jones v. MississippiNo. 18-1259, will address the Eighth Amendment rules for imposing LWOP sentences on juvenile murders, and Borden v. USNo. 19-5410, will explore another variation on the application of the severe mandatory minimum term in the Armed Career Criminal Act.  Based on what I am hearing about the pace and content of the on-going confirmation hearing for Judge Amy Coney Barrett, it sounds as though the Supreme Court might be back to nine Justices by that time.

Today, though, the Supreme Court is operating with only eight Justices, and those eight are scheduled to hear oral arguments in these two criminal cases (previewed via SCOTUSblog):

Torres v. Madrid, No. 19-292 [Arg: 10.14.2020]

Issue(s): Whether an unsuccessful attempt to detain a suspect by use of physical force is a “seizure” within the meaning of the Fourth Amendment, as the U.S. Courts of Appeals for the 8th, 9th and 11th Circuits and the New Mexico Supreme Court hold, or whether physical force must be successful in detaining a suspect to constitute a “seizure,” as the U.S. Court of Appeals for the 10th Circuit and the District of Columbia Court of Appeals hold.

Case preview: When is a fleeing suspect “seized”? (authored by Jeffrey Bellin)

 

Pereida v. BarrNo. 19-438 [Arg: 10.14.2020]

Issue(s): Whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.

Case preview: Harsh immigration consequences from ambiguous state criminal convictions (authored by Kate Evans)

October 14, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, October 13, 2020

Noticing a lurking Eighth Amendment issue in SCOTUS arguments over statute of limitations for military rape prosecutions

The US Supreme Court issued another order list this morning with little of interest for sentencing fans, and I am not expecting much criminal law discussion in the on-going confirmation hearings for Judge Amy Coney Barrett.  But SCOTUS is hearing oral argument today in US v. Briggs, which is worth watching for reasons Evan Lee explains in this post at SCOTUSblog under the title "Case preview: Determining the statute of limitations for military rape — and possibly a lot more."  Here is an excerpt:

When the Supreme Court entertains argument on Tuesday in United States v. Briggswhich had originally been scheduled for Monday, March 23, it will be asked to decide whether three men convicted of military rape should not have been prosecuted in the first place because of the statute of limitations.  And, should each side’s principal argument fail, the court may be forced to decide a bigger question: whether the Eighth Amendment prohibition against capital punishment for non-homicide rape applies to rape in the military.

This litigation consists of three consolidated cases, which all involve male military personnel convicted of raping female military personnel.  Michael Briggs, Richard Collins and Humphrey Daniels claim that the statute of limitations should have barred their prosecutions.  The government argues that there is no statute of limitations for military rape because Congress exempted all military crimes punishable by death from limitations.  The defendants counter that the cruel and unusual punishments clause of the Eighth Amendment prohibits the death penalty for all rapes not involving fatalities, including military rapes.  That, in turn, means there is a statute of limitations for military rape, and it expired before any of the three men were prosecuted.  The U.S. Court of Appeals for the Armed Forces agreed with the defendants....

A key issue in this litigation is which subsection of the UCMJ, 10 U.S.C. Section 843, applies: subsection (a), which states that “any [military] offense punishable by death may be tried and punished at any time without limitation,” or subsection (b), which creates a five-year statute of limitations for other military offenses.  The government argues that Section 843(a) applies because military rape is made “punishable by death” by 10 U.S.C. Section 920(a), which states, “Any person subject to this chapter who commits an act of sexual intercourse, by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.”  The three defendants argue that military rape is not “punishable by death” because the Supreme Court’s Eighth Amendment precedents prohibit capital punishment for non-fatality rapes.  And if military rape is not punishable by death, then the applicable limitations period is the default provision of Section 843(b)....

At oral argument, it will be interesting to see whether any of the justices demonstrate an appetite for the constitutional issue, or whether they think the statutory interpretation questions are dispositive.  

I strongly agree it will be interesting to see how the Justices may bring up the Eighth Amendment during oral argument today, and I will plan to update this post accordingly.

UPDATE: The oral argument transcript in Briggs is now available here.  A quick search reveals the term "Eighth Amendment" coming up 32 times over the transcript's 65 pages.  Over at Crime & Consequences, Kent Scheidegger has this extended post on the case under the title "The Eighth Amendment and Statutes of Limitations." Here is how this post starts and ends:

What do statutes of limitations and the constitutional ban on “cruel and unusual punishments” have to do with each other? The logical answer is “nothing.” But the law follows strange paths, and the two issues crossed in today’s Supreme Court argument on the statute of limitations for rape in the military justice system....

I won’t venture a prediction based on this argument. If the eight justices divide four-four, we might be seeing a reargument.

October 13, 2020 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, October 12, 2020

Broad Michigan expungement bill signed into law (time to step up Ohio)

As reported in this local article, headlined "Gov. Whitmer signs bills expanding criminal record expungement in Michigan," notable record relief reform has now become law in the Wolverine State.  Here are the details:

Gov. Gretchen Whitmer signed legislation Monday that will automatically clear certain criminal convictions from public view in Michigan while also making more people eligible for expungement through the application process.

The changes are expected to help hundreds of thousands of Michiganders by removing a barrier to employment, housing and other opportunities after people have rehabilitated themselves.

During a news conference with Whitmer in Detroit, lawmakers and advocates held up Michigan as a national leader in expungement reform.  The automatic record-clearing legislation is the "most expansive version of this law in the country," said John Cooper, executive director of Safe & Just Michigan, one of the organizations that advocated for the bills.

Whitmer called it a "historic" day for Michigan.  “These bipartisan bills are going to be a game changer,” she said.  “They will ensure a clean slate for hundreds of thousands of people.  And they will help us grow our workforce and expand access to education and skills training."

State Rep. Graham Filler, a DeWitt Republican who chairs the House Judiciary Committee and joined in announcing the bipartisan bills in Detroit last fall, said the reform will directly increase public safety.  "You're in your community, you're invested in your community, you're spending time with your family, you're working, you're accessing housing," he said. "We have less recidivism, less victims. This is what happens when you access expungement."

Crime survivors who support the legislation agreed.  "For many crime survivors, the most important thing ... is what happened it us, we don’t want it to happen again to anyone," Aswad Thomas, a survivor of gun violence, told the Free Press.  Thomas is managing director of Crime Survivors for Safety and Justice, a national network with chapters in Michigan.  "And passing reforms like the Clean Slate bill, when people are able to get access to a job, people are able to get access to education, people are able to get access to employment, it actually increases public safety."

A coalition of groups that pushed for the reform over the last few years say Michigan's process to seal a conviction so that it doesn't appear on a background check has long been costly and complicated, and the restrictions unduly narrow.  Only 6.5% of people who qualify for expungement in Michigan have their records cleared within five years of becoming eligible, according to a study out of the University of Michigan Law School.  The study found that people who get their records expunged see higher earnings and low recidivism rates.

"This is bigger than criminal justice reform," Lt. Gov. Garlin Gilchrist said. "This is about economic opportunity and full participation in our economy and our society."

The state follows Pennsylvania, Utah and California in adopting an automated system to wipe clean certain convictions from public records after a period of time. Michigan's law will apply retroactively and is the first to automatically clear prior low-level felonies.

Under the automatic record-clearing law, misdemeanors will be expunged seven years after sentencing.  Felonies will be cleared 10 years after sentencing or the person's release from incarceration, whichever comes last.  Up to two felonies and four misdemeanors can be automatically cleared.

Not eligible for automatic expungement are assaultive crimes, serious misdemeanors, "crimes of dishonesty" (such as forgery and counterfeiting), offenses punishable by 10 or more years in prison and crimes that involve a minor, a vulnerable adult, injury or serious impairment, death or human trafficking.  Assaultive crimes are defined as offenses such as assault, homicide, manslaughter, assaults against pregnant women, kidnapping, rape, armed robbery, terrorism, and violations involving bombs and explosives, according to the House Fiscal Agency.

The legislation gives the state two years to implement the automatic expungement process.  The remaining legislation in the seven-bill package will take effect in 180 days.  The bills expand eligibility for expungement through the application process, which is handled by a judge.

As the parenthesis in my post title highlights, I am hopeful that Ohio's long-standing rivalry with its neighbor up north might lead the Buckeye State to try to keep up on the record relief front.  And, coincidentally, the latest new drafting contest from a partnership of the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center and the Collateral Consequences Resource Center is focused on suggesting changes to Ohio’s existing statutory record relief provisions. The details on this contest, titled "Re-Imagining 'Second Chances': Improving Ohio’s Re-Entry Provisions," are available here on the DEPC website.

October 12, 2020 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Sunday, October 11, 2020

Arizona Supreme Court rejects Eighth Amendment claims by juvenile offenders given de facto life sentences for multiple offenses

On Friday, the Supreme Court of Arizona handed down a unanimous rejection of claims by multiple juvenile offenders subject to de facto life sentences for multiple sentences in Arizona v. Soto-Fong, No. CR-18-0595 (Ariz. Oct. 9, 2020) (available here).  Here is how the opinion begins and a concluding paragraph:

We consider whether consecutive sentences imposed for separate crimes, when the cumulative sentences exceed a juvenile’s life expectancy, violate the Eighth Amendment’s prohibition against “cruel and unusual punishments.”  We conclude that such de facto life sentences do not violate the Eighth Amendment, as interpreted in Graham v. Florida, 560 U.S. 48 (2010), Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016). Consequently, Graham, Miller, and Montgomery do not constitute a significant change in the law under Arizona Rule of Criminal Procedure 32.1(g)....

Despite the shifting and confusing reasoning embodied in Graham, Miller, and Montgomery, we are bound by the Supremacy Clause to faithfully apply this jurisprudence as we fairly construe it.  Davis, 206 Ariz. at 384 ¶ 34 n.4.  But because those cases do not address or implicate de facto juvenile life sentences, we decline Petitioners’ invitation to expand this jurisprudence one step beyond its reach.  Our respect for the separation of powers, the will of our citizens, and principles of judicial restraint, rather than dicta from inapposite cases, compel our decision.  Thus, we hold that the Eighth Amendment does not prohibit de facto juvenile life sentences.

As this last quoted paragraph may reveal, the Soto-Fong opinion is full of a good deal of snark about the US Supreme Court's rulings in Graham, Miller, and Montgomery.  Discussing Graham, for example, the Arizona Supreme Court calls part of the SCOTUS ruling "dubious" and then takes a "pause" to express "concern" with the Graham opinion’s reference to international law.  Perhaps it is thus unsurprising that the Arizona Supreme Court was seemingly keen to affirm in this case an "enhanced concurrent and consecutive prison sentences totaling nearly 140 years" for a teenager who committed a series of serious arsons.

October 11, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Thursday, October 08, 2020

Additional accountings of Judge Barrett's Seventh Circuit criminal justice work

Lauren-Brooke Eisen and Alia Nahra have this review of some of Judge Barrett's rulings in criminal cases over at the Brennan Center.  The piece's full title highlights its overall themes: "Amy Coney Barrett’s Judicial Record in Criminal Justice Cases: Although the Supreme Court nominee has often written opinions that don’t advance the claims of some criminal defendants and incarcerated people, she may be more receptive to supporting privacy rights and gun rights."  And here is how the discussion gets started:

If Amy Coney Barrett joins the Supreme Court, she could tip the balance on a host of major issues. And at a time of renewed reckoning across the nation to address America’s long history of racial injustice, the Court will likely soon consider issues related to criminal justice, such as claims against excessive police force and the ability to sue law enforcement officials.

Although it can be difficult to predict how a nominee may rule on future issues given the individualized nature of each case, Barrett has publicly aligned herself with her mentor, the late Justice Antonin Scalia. Like him, Barrett is an originalist, meaning she seeks to apply the Constitution according to her understanding of what the Framers intended it to mean. When accepting her nomination she said, “His judicial philosophy is mine, too — a judge must apply the law as written.”

Scalia, in his time on the bench, held tightly to his originalist beliefs. He ardently defended the death penalty (even in the cases of juveniles), and he penned the Court’s majority opinion on the Sixth Amendment's Confrontation Clause in Crawford v. Washington, which provided additional protection to criminal defendants. In that case, the Court ruled that prior statements to law enforcement by witnesses who are not available to testify in court cannot be presented as evidence unless the defendant's lawyer has an opportunity to cross-examine that person.

In Barrett’s short time on the bench, she has written several opinions that shed light on where she may fall on criminal justice issues if elevated to the high court. As a recent addition to the Seventh Circuit Court of Appeals, confirmed in October 2017, some of her views become clear through her dissents, and less so in cases where she joined her colleagues in three-judge opinions.

And over at Empirical SCOTUS, Adam Feldman has this empirical look at Judge Barrett's judicial record under the title "A Comprehensive Look at Judge Amy Coney Barrett."  Here is an excerpt:

Like all court of appeals judge, the majority of panels Barrett participated in while on the circuit that lead to written opinions ended up in orders.  Most of the orders judges release are in criminal cases and as tends to be par for the course, Barrett ended up deciding more criminal sentencing cases than any other case type.  Civil rights cases were the second most common and many of these had to do with prisoners’ treatment while in jails.  Interestingly though, when summed up, civil liberties decisions were as common as criminal decisions at 141 apiece.

Prior related posts:

October 8, 2020 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"A Willful Choice: The Ineffective and Incompassionate Application of Wisconsin’s Criminal Laws in Combating the Opioid Crisis"

The title of this post is the title of this paper recently posted to SSRN authored by Emily O'Brien. Here is its abstract:

Wisconsin’s drug-induced homicide law, known as the Len Bias law, was intended to prosecute for-profit drug dealers and was rarely charged for several decades after it was enacted in 1986.  In recent years, prosecutors have brought hundreds of Len Bias charges in response to opioid deaths.  Often, these charges are brought against overdose victims’ friends and family members — people who are also mired in addiction and who shared or helped obtain the fatal drug.  In contrast, Wisconsin’s Good Samaritan overdose law (GSOL), enacted in 2014, focuses on harm reduction.  If a person calls for help when another person is overdosing, the law provides both people with some insulation from prosecution of a range of drug-related charges.  These laws approach the problem of overdose death from very different angles: The Len Bias law punishes addicts for their role in overdose deaths, while the GSOL offers addicts protection from prosecution in order to encourage calls for medical intervention in overdose situations.  Unfortunately, the current implementation of the Len Bias law diminishes the potential of GSOL to save lives because addicts are faced the possibility of a homicide charge when they summon help for an overdose victim.

With the rise of lethal synthetic opioids in Wisconsin, the criminal justice system must adjust its current laws and practices in order to reduce overdose deaths.  The criminalization of addiction represented by the Len Bias law thwarts rehabilitation efforts, miring addicts in a cycle of incarceration and drug use that ends with death in too many cases.  This Comment proposes a solution: separating addicts from for-profit drug dealers in the eyes of the law by implementing a joint-user defense in Len Bias cases. Addicts are more likely to use opioids with other addicts than alone.  By removing the possibility of a homicide conviction, addicts will more readily utilize the GSOL and call for medical intervention when a fellow addict is overdosing. Additionally, separating addicts from dealers allows the Len Bias law to be charged in accordance with its intended purpose, while freeing up investigatory and prosecutorial resources for the more complex task of investigating commercial drug dealers and disrupting the drug trade.  This proposed solution would begin to align Wisconsin’s criminal laws with the state’s rehabilitation-focused public health efforts at combating opioid addiction in communities and reducing overdose deaths.

October 8, 2020 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Wednesday, October 07, 2020

Documenting the (unsurprising) lack of compassion from federal prison officials when considering COVID-era compassionate release requests

The Marshall Project has this lengthy new piece reporting on an old story, namely the utter failure of federal prison officials to discharge effectively their "compassionate release" responsibilities by helping to identify prisoners who ought to have their prison sentences reduced due to serious illness or other compelling factors.  The full piece is worth a full read; it is fully headlined: "Thousands of Sick Federal Prisoners Sought Compassionate Release.  98 Percent Were Denied.  Wardens blocked bids for freedom as COVID-19 spread behind bars, data shows."  Here are a few excerpts, with commentary to follow:

Data recently obtained by The Marshall Project underscores what attorneys, advocates and experts have long suspected: As the pandemic ramped up, federal prison wardens denied or ignored more than 98 percent of compassionate release requests, including many from medically vulnerable prisoners like Neba.  Wardens are the first line of review; ultimately, compassionate release petitions must be approved by a judge.  Though the Bureau of Prisons has previously posted information about the number of people let out on compassionate release, it wasn’t clear until now just how many prisoners applied for it or how frequently wardens denied these requests despite widespread calls to reduce the prison population in the face of the pandemic....

Of the 10,940 federal prisoners who applied for compassionate release from March through May, wardens approved 156.  Some wardens, including those at Seagoville in Texas and Oakdale in Louisiana, did not respond to any request in that time frame, according to the data, while others responded only to deny them all.  Higher-ups in Washington, D.C., reviewed 84 of the warden approvals and overturned all but 11.  Time and again, the only way prisoners were able to win compassionate release was to take the bureau to court to fight the wardens' denials.

For dozens of people stuck behind bars, the virus has proved fatal; so far, 134 federal prisoners have died of COVID-19, and more than 15,800 have fallen ill. A statement from the Bureau of Prisons did not address specific questions, including why some wardens failed to respond to release requests. The wardens referred questions to the bureau.

At Elkton, an early hot spot in Ohio where nine prisoners died of COVID-19 and more than 900 got sick beginning in March, the warden denied 866 out of 867 requests for compassionate release between March 1 and May 31.

In California, the prison at Terminal Island became the site of a major outbreak, with 694 prisoners testing positive by the end of May. But the warden only approved five of the 256 compassionate release requests filed by that time.  At Butner, a four-prison complex in North Carolina where 25 prisoners and one correctional officer died in May and June, officials approved 29 of 524 requests by the end of May.

At some prisons, the low number of requests raised questions about the bureau’s recordkeeping.  For example, at the Oakdale complex, an early hot spot in Louisiana where eight prisoners have died, officials reported just 95 compassionate release applications by the end of May out of a population of more than 1,700. The warden took action on none of them. At the same time, the prison racked up 191 positive cases.  Likewise at Forrest City, a two-prison complex in Arkansas where more than 700 men fell ill, officials reported only three applications by the end of May.  All three were approved.

For more than a dozen institutions, including all 11 of the privately run federal prisons, the bureau listed no compassionate release requests at all.  “The numbers seem incorrect,” said Somil Trivedi, a senior staff attorney with the American Civil Liberties Union, who has helped coordinate lawsuits against federal prisons. “I just don’t feel like they’re counting them all.  This has to be an undercount because of the informal nature of the process.”

I am very pleased to see the Marshall Project seek to marshal this data, and I would have been shocked if the data showed anything else about how federal prison officials responded to compassionate release requests.  Congress through the FIRST STEP Act wisely altered the process for these requests to authorize prisoners to directly motion courts for a sentence reduction (often called "compassionate release") because federal prison officials had so badly failed for decades to effectively discharge their "compassionate release" responsibilities.   In the past, many hundreds of inmates had died before prison officials would even respond to requests, and Congress should be widely praises for its wise decision to now allow prisoners to motion courts directly after first making the request to prison officials.

That said, the challenges of collecting these data and keeping them updated serves as a reminder that the FIRST STEP Act did not fix everything.  As long known by those involved in this system, the federal BOP still needs to be subject to considerably more independent oversight and reporting requirements.  BOP's overall lack of accountability and transparency was bad enough in normal times, especially since the BOP has been the nation's largest incarcerator for the better part of two decades.  In the COVID era, the federal prisons bureau should be doing a whole lot better and that really seem to now require significant structural change.

That all said, any doom and gloom about federal prison officials can and should be tempered by the broader success stories in the arena of sentence reductions (often called "compassionate release") under 3582(c), and this overall success is usefully documented in real time by the BOP.  Though the BOP does not discuss motions denied of any particulars, the BOP does helpfully report at this FSA page the total number of granted post-FIRST STEP Act "Compassionate Releases / Reduction in Sentences."  As of this writing, that number stands at 1752 (and is up over 250 in just the last month since I blogged on this topic here). 

As detailed in this post, the US Sentencing Commission has reported that in the year before FIRST STEP only 24 persons got their sentenced reduced; in the year after FIRST STEP became law, that number of sentence reductions rose to 145.  Doing the math, this all means that in the COVID era there have already been over 1600 sentence reduction motions granted (meaning roughly 80 times as many as pre-FIRST STEP and 11 times as many as post FIRST STEP/Pre-COVID)!  

A few of many prior related posts:

October 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Should we be rooting for or against some criminal justice discussions during the VP debate?

The question in this title of this post is my sincere question as I think about tonight's scheduled debate between the 2020 vice presidential candidates, current VP Mike Pence and Senator Kamala Harris.  Especially after the many ugly dimensions of last week's Prez election debate, I find myself wondering too much about whether we can even have effective civil discourse in this nation.  That depressing fundamental concern aside, it is perhaps worth recalling that almost exactly four years ago at the last VP debate, then-Gov Pence advocated for national criminal reform in this exchange (as reported in my Oct 2016 blog posting with my emphasis added):

[Moderator] QUIJANO:  Your fellow Republican, Governor Pence, Senator Tim Scott, who is African-American, recently spoke on the Senate floor.  He said he was stopped seven times by law enforcement in one year....  He said, "I have felt the anger, the frustration, the sadness, and the humiliation that comes with feeling like you're being targeted for nothing more than being just yourself."  What would you say to Senator Scott about his experiences?

PENCE:  Well, I have the deepest respect for Senator Scott, and he's a close friend.  And what I would say is that we — we need to adopt criminal justice reform nationally.  I — I signed criminal justice reform in the state of Indiana, Senator, and we're very proud of it.  I worked when I was Congress on a second chance act.  We have got to do a better job recognizing and correcting the errors in the system that do reflect on institutional bias in criminal justice.

I would love a four-years-later follow up question to now-VP Pence that explores whether he thinks the Trump Administration has been doing "a better job recognizing and correcting the errors in the system that do reflect on institutional bias in criminal justice."  That said, if there are questions focused on criminal justice issues in this VP debate, we might expect that they may be first directed toward Senator Harris given her long (and somewhat controversial) record on these issues resulting in part from her service as a local prosecutor and then Attorney General in California.

In this post some weeks ago, I made a pitch for an entire Prez debate focused on criminal justice issues.  Now I am finding myself just hoping for a debate that does not make me sick. The question in the title of this post is driven by the fact that I am sincerely not sure if the candidates ignoring or discussing these issues tonight are more or less likely to be nauseating.

A few prior recent related posts:

October 7, 2020 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (0)

Notable perspectives from the Prairie State on "Principles to Build a More Equitable Criminal Justice System"

I just noticed, and found quite notable, this new press release from yesterday coming from the Illinois Governor's office.  The document is fully titled "Gov. Pritzker Proposes Principles to Build a More Equitable Criminal Justice System: Criminal Justice Reform Principles Aim to Modernize Criminal Code, End Cycles of Recidivism, and Increase Police Accountability."  I'd recommend the lengthy document in full, and here is the statement of "seven principles for an equitable criminal justice system" that are at the heart of the document (with bolding in the original):

The seven principles for an equitable criminal justice system are the following:

• End the use of the cash bail system and limit pretrial detention to only those who are a threat to public safety. The governor remains committed to ending a system that disproportionately forces low-income families and people of color into a disruptive cycle of unearned detention and instability.  The cash bail system would be replaced by a risk assessment to determine the likelihood of a defendant's appearance at trial and if there is a threat to public safety posed by a defendant's pre-trial release.
 
• Modernize sentencing laws on theft and drug offenses and use a public health approach to address mental health and addiction. Illinois will decrease unnecessary admissions into prison, match modernized sentencing standards across the country, and limit criminal justice system involvement for non-violent offenders who need and would benefit from a public health intervention. 
 
• Reduce excessive lengths of stay in prison by providing pathways for people to earn opportunities for rehabilitation. The state will increase access to sentence credit and time-limited supervised release while limiting penalty enhancements and short-term commitments that disproportionately trap low-income families and people of color in generational cycles of incarceration.
 
• Prioritize rehabilitation and reduce the risk of recidivism by increasing access to housing and healthcare for returning residents.  The state is committed to expanding opportunities, supports, and services for people who are exiting the prison system so that they are set up to succeed upon return to their communities, and which will save taxpayers money by reducing the number of people trapped in a cycle of recidivism. 
 
• Increase police accountability and transparency for police officers and police departments. Illinois will set the standard for the nation in professionalizing and setting statewide standards for police officers.  We will advocate for licensing of police officers, strengthen the role of the State Police Merit Board, work alongside police departments to ensure compliance and proper use of body-worn cameras, create a state-level avenue to investigate systemic police misconduct, and remove barriers for civilians to report officer misconduct, like the signed affidavit requirement.
 
• Update and strengthen statewide standards for use of force by police officers. Illinois is committed to modernizing the legal standard for use of force and implementing common sense policies and trainings that are consistent with best practices and will improve police-community relations.  This includes requiring police officers to apply first aid after using force, prohibiting no-knock search warrants, requiring the use of de-escalation techniques, and requiring officers  to intervene and report when excessive force is used by another officer. 
 
• Improve interactions with police by decriminalizing minor non-violent offenses, improving police response to crowd control, and increasing language and disability access.  By decriminalizing minor non-violent offenses, creating policies and trainings for police response to non-violent crimes and protests, and increasing language and disability access for civilians, Illinois will establish a framework to improve community safety and trust.  

October 7, 2020 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Tuesday, October 06, 2020

Feds officially seek SCOTUS certiorari to review First Circuit's reversal of Boston Marathon bombers death sentence

As reported in this Boston Globe piece, "Federal prosecutors on Tuesday formally filed their request for the US Supreme Court to review an appeals court ruling in July that threw out the death penalty in the case against Boston Marathon bomber Dzhokhar Tsarnaev." Here is more (links from the original):

The 424-page request, known as a writ of certiorari, raises two questions for the high court to consider.

First, it asks whether the District Court should have allowed “evidence that respondent’s older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted.”

Second, the document asks whether the federal appeals court that overturned Tsarnaev’s death sentence made a mistake in concluding that the District Court should have asked “each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard, or seen about respondent’s case.”...

The move by prosecutors comes after the US Court of Appeals for the First Circuit on July 31 issued a 182-page ruling that infuriated some survivors, finding that George A. O’Toole Jr., who presided over Tsarnaev’s high-profile 2015 trial in US District Court in Boston, “did not meet the standard” of fairness while presiding over jury selection....

With their filing Tuesday, prosecutors formally asked the Supreme Court to take up the matter. If the high court, which agrees to hear only a fraction of the cases submitted to the panel for review each year, does review the case, it could affirm the appellate decision or reverse it, reinstating Tsarnaev’s death sentence.  Tsarnaev, now 27, remains incarcerated at a federal supermax prison in Colorado. 

Prior recent related posts:

October 6, 2020 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

New AP report details lack of diversity in Trump Administration's picks for US Attorneys

The role and significance of prosecutors has become an area of growing interest and analysis among criminal justice scholars and advocates.  So this new AP piece, headlined "Trump’s top federal prosecutors are overwhelmingly white men," should be of interest for many reasons and to many people.  Here are a few excerpts:

The nation’s top federal prosecutors have become less diverse under President Donald Trump than under his three predecessors, leaving white men overwhelmingly in charge at a time of national demonstrations over racial inequality and the fairness of the criminal justice system.

The Associated Press analyzed government data from nearly three decades and found that a persistent lack of diversity in the ranks of U.S. attorneys has reached a nadir in the Trump administration.  Eighty-five percent of his Senate-confirmed U.S attorneys are white men, according to AP’s analysis, compared with 58% in Democratic President Barack Obama’s eight years, 73% during Republican George W. Bush’s two terms and at most 63% under Democrat Bill Clinton.

White men lead 79 of the 93 U.S. attorney’s offices in a country where they make up less than a third of the population. Nine current U.S. attorneys are women.  Two are Black, and two Hispanic....

The enduring imbalance leaves U.S. attorneys looking less like the people they serve, and is in stark contrast to the population of federal prisons, where a disproportionate share of those incarcerated are Black....

White House spokesman Judd Deere did not answer questions about the diversity of U.S. attorneys under Trump’s watch, but said in a statement that the administration has “worked closely with U.S. Senators to identify the best candidates to serve as the chief law enforcement officer in their districts back home, and we are very proud of the work that they are doing to keep all Americans safe.”...

A lack of diversity has long been an issue throughout the federal law enforcement and criminal justice systems.  In some places it’s grown more acute under Trump.  Then-FBI Director James Comey said in 2016 that the bureau’s failure to recruit more minorities had become “a crisis.” In the U.S. Drug Enforcement Administration, recent court filings show 8% of the agency’s more than 4,000 special agents are Black while about 77% are white.

An AP analysis also found nearly 86% of the 206 federal judges confirmed to lifetime positions under Trump have been white — the highest rate of white judicial appointments since George H.W. Bush’s presidency.  Two-thirds of Trump’s judicial appointees have been white men; fewer than a quarter have been women.

And at the top of the Justice Department, Trump’s two attorneys general — Barr and Sessions — are also white.  That compares with the past three administrations in which Black people, a Latino man and the first female attorney general served as the nation’s top law officer.

October 6, 2020 in Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Collateral Consequences Resource Center releases "The Reintegration Report Card"

The title of this post is the title of this notable new report by Margaret Love and David Schlussel of the Collateral Consequences Resource Center.  Here is this detailed report's introduction:

This Report Card supplements our recently published 50-state report, “The Many Roads to Reintegration,” a survey of U.S. laws aimed at restoring rights and opportunities after arrest or conviction.  That report includes topical essays covering voting and firearms rights, an array of record relief remedies, and consideration of criminal record in employment and occupational licensing.

The “Many Roads” report assigned to each state, D.C., and the federal system a grade for nine different types of restoration laws:

  1. loss and restoration of voting rights
  2. pardon
  3. felony expungement, sealing & set-aside (“felony relief”)
  4. misdemeanor expungement, sealing & set-aside (“misdemeanor relief”)
  5. non-conviction relief
  6. deferred adjudication
  7. judicial certificates of relief
  8. employment
  9. occupational licensing.

Using these grades, we produced an overall ranking of the states and D.C. In this Report Card we provide the grades and rankings in an easily digestible form.

We also provide a brief narrative summary of how each state’s law stacks up in the different categories.  Our hope is that these summaries will suggest ways in which a state might improve its laws and hence its ranking. An appendix collects all the grades and rankings.

Finally, we emphasize once again that our grades are based solely on the text of each state’s law, leaving more nuanced judgments about their actual operation to practitioners, researchers, and the law’s intended beneficiaries.  We expect to look more closely at the operation of some of the record relief laws in the near future, and welcome comments and suggestions from those who have experience with them.  In the meantime, we hope our grades will challenge, encourage, and inspire additional reforms in the months and years ahead.

For more details and legal citations for each state, see the Restoration of Rights Project.  For essays surveying each topic, consult “The Many Roads to Reintegration.”

October 6, 2020 in Collateral consequences, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)