Thursday, August 13, 2020

"Making Sense of Risk"

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

Although actuarial risk prediction tools are widely used in the American criminal justice system, the lawyers, judges, and correctional workers who consult these products in making decisions often misunderstand fundamental aspects of how they work and what information they provide.  This article suggests that the best way to ensure risk assessment tools are being used in ways that are just and equitable is to ensure that those who use them better understand three key aspects of what information they do — and do not — reveal.  Doing so requires clarifying what risk is being predicted, explaining what risk levels signify, and enumerating how risk-related information is and is not relevant to specific criminal justice decisions.

August 13, 2020 in Procedure and Proof at Sentencing, Technocorrections, Who Sentences | Permalink | Comments (0)

"'Con Air' Is Spreading COVID-19 All Over the US Prison System"

The title of this post is the title of this notable new article from VICE News and The Marshall Project. Here is an excerpt:

The U.S. Marshals Service is responsible for moving people into, out of, and among far-flung federal prisons, handling most long-distance transfers and newly sentenced prisoners. It doesn’t put people in quarantine or give them virus tests before transporting them around the country.  As a result, federal prisoners in Marshals custody are being shipped around the U.S. by plane, van, and bus with no way to know if they are carrying the virus, exposing other prisoners, staff, and possibly the public along the way.

According to whistleblower complaints obtained by VICE News and The Marshall Project, federal prisoners infected with the coronavirus have been shipped as far as Puerto Rico in recent weeks, and to federal lock-ups in Alabama and Florida.  Bureau of Prisons employees say prisoners have also tested positive after being shuffled around to facilities in Colorado, Illinois, Texas, Oklahoma, Pennsylvania, and Louisiana.

“It’s horrible,” said Anthony Koeppel, a local official with the staff union at Pollock. “It’s putting staff at risk, it’s putting inmates at risk, and it’s putting the community at risk. We’re talking about lives here. This is an extremely dangerous situation.”

The Marshals say they aren’t required to do any testing because “an agreement was made” that the Bureau of Prisons would handle tests and quarantines once prisoners are transferred into its lock-ups. The BOP did not respond to requests for comment.  A spokesperson for the Justice Department, which oversees both agencies, said they “have taken, and will continue to take, aggressive steps to protect the safety and security of all staff, inmates, visitors, and members of the public.”

Transferring prisoners who turn out to be sick has been a problem at prisons across the country.  In California, the San Quentin State Prison went from zero coronavirus infections in late May to more than 2,200 confirmed cases and 26 deaths in early August after prisoners were moved in from a known hotspot without being tested.

Staff and prisoners have blamed transfers for helping the coronavirus wreak havoc across the Bureau of Prisons, killing 111 prisoners and at least one staff member, and infecting over 10,000 prisoners and 1,200 workers in America’s largest network of prisons and jails. The agency officially halted most movement of prisoners in March in an effort to limit the spread of the virus; when it does transfer prisoners itself, it requires them to undergo coronavirus testing and a 14-day quarantine before and after being moved.

But the Marshals don’t abide by those rules — and they keep moving people.  While transfers have slowed — down 76% from April to July compared to the same period last year, according to the Marshals — they never truly stopped. That’s partly due to federal courts and law enforcement agencies pumping thousands of new people into the system.

August 13, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Prez Trump finally announces full slate of (unlikely to be confirmed?) new nominees for the US Sentencing Commission

As many readers may know, the US Sentencing Commission has lacked a full slate of Commissioners for the entirety of Trump Administration.  With only two (of seven) Commissioners in place since the start of 2019, the USSC has lacked a quorum and thus cannot complete any formal work (including a lot of work that should and needs to be done in response the the FIRST STEP Act).  Part of the problem, as I have covered in this space, was that at least one of the four nominees that Prez Trump put forward back in March 2018 was of great concerns to a great many.

Against this backdrop, I was intrigued to see two months ago this NPR report (which was blogged here) about a new slate of potential nominees, more than a few of which were considered controversial for their perceived punitiveness.  At that time, I speculated that I was unsure if even an uncontroversial slate of USSC nominees could get confirmed by the US Senate in the run up to the November election (or in the lame-duck period thereafter).   Not having heard anything on this front for two more months, I was unsure if the Trump Administration was even going to try to fill these spots in 2020. 

But yesterday brought this White House announcement, titled "President Donald J. Trump Announces Intent to Nominate and Appoint Individuals to Key Administration Posts."

Today, President Donald J. Trump announced his intent to nominate the following individuals to key positions in his Administration:

Judge K. Michael Moore, of Florida, as Chairman of the United States Sentencing Commission.

Judge Michael Moore serves as the Chief Judge of the United States District Court for the Southern District of Florida, a post which he has held since 2014.   Judge Moore was appointed to the Southern District of Florida by President George H. W. Bush in 1992.  Before his appointment to the Federal bench, Judge Moore served as the Director of the United States Marshals Service and as the United States Attorney for the Northern District of Florida.  Judge Moore also spent over a decade of service as an Assistant United States Attorney.

Judge Claria Horn Boom, of Kentucky, as a Commissioner of the United States Sentencing Commission. 

Judge Claria Horn Boom serves as a United States District Judge for the Eastern and Western Districts of Kentucky.  Judge Boom was appointed to the Eastern and Western Districts of Kentucky in 2019 by President Donald  J. Trump.  Before her appointment to the Federal bench, Judge Boom served as an Assistant United States Attorney in the Eastern and Western Districts of Kentucky and was in private practice in Lexington, Kentucky and Atlanta, Georgia.

Judge Henry E. Hudson, of Virginia, as a Commissioner of the United States Sentencing Commission. 

Judge Henry Hudson serves as a Senior United States District Judge for the Eastern District of Virginia.  Judge Hudson was appointed to the United States District Court bench in 2002 by President George W. Bush.  Before his appointment to the Federal bench, Judge Hudson served as a Virginia Circuit Judge for Fairfax County, Director of the United States Marshals Service, as the United States Attorney for the Eastern District of Virginia, and as the Commonwealth’s Attorney for Arlington County, Virginia.

John G. Malcolm, of the District of Columbia, as a Commissioner of the United States Sentencing Commission. 

John Malcolm is Vice President for the Institute for Constitutional Government and the Director of the Meese Center for Legal & Judicial Studies at the Heritage Foundation.  Mr. Malcolm also serves as a Member of the Board of Directors of the Legal Services Corporation.  Mr. Malcolm previously served as the General Counsel at the United States Commission on International Religious Freedom, as a Deputy Assistant Attorney General in the Criminal Division of the Department of Justice, and as an Assistant United States Attorney for the Northern District of Georgia.

Judge Luis Felipe Restrepo, of Pennsylvania, as a Commissioner of the United States Sentencing Commission. 

Judge Phil Restrepo serves as a Circuit Judge of the United States Court of Appeals for the Third Circuit.  Judge Restrepo was appointed to the Third Circuit in 2016 by President Barack Obama.  Prior to his elevation to the Third Circuit, Judge Restrepo served as a United States District Judge for the Eastern District of Pennsylvania, a post to which he was also nominated by President Obama.  Prior to his service on the United States District Court, Judge Restrepo served for seven years as a United States Magistrate Judge, practiced privately, and served as an Assistant Federal Public Defender in the Eastern District of Pennsylvania.

Though I am always pleased to see the US Sentencing Commission getting some needed attention, I find this announcement puzzling and troublesome for various reasons.  For the most elemental of starters, the US Sentencing Commission is a judicial branch agency and not part of an executive administration.  Thus, I find it puzzling that this announcement speaks of Prez Trump's USSC nominations as involving "key positions in his Administration."  This is a small point, but I think a telling one, about both the importance and independence of the USSC (or lack thereof).

Next, I am troubled by the lack of diversity in these picks.  The NPR story a few months ago included a fitting quote on this front: "'The administration has put forth a slate that is all white, mostly male, and lacking in diverse experiences or backgrounds,' said Sakira Cook, director of the justice reform program at the Leadership Conference on Civil and Human Rights."  Moreover,  all but one of the new nominees are sitting federal judges when the two current USSC members are also both judges.  There is a remarkable irony here, I suppose, given that the GOP pushed during the Bush Administration to change the USSC's statutory charter so that instead of requiring at least three judges it allowed no more than three judges among the USSC's seven members (this composition requirement was changed back in later years).  Now, with Prez Trump as the head of the GOP, it seems he wants almost exclusively judges at the USSC. 

Last but not least, the USSC's statutory charter still states that "not more than four of the members of the Commission shall be members of the same political party."  These biographies suggest that four of these five nominees may be members of the GOP, even though there is already one GOP member on the USSC.  Of course, people can and do change party membership all the time for all sorts of reasons, but this political history still further aggravates my worry that this slate of nominees would not help create a diverse and balanced and dynamic US Sentencing Commission. 

Again, I am inclined to believe that it is unlikely for any slate of USSC nominees to get confirmed by the US Senate in 2020.  But now that it seems these nominations have been officially made, it would seem there is now a chance. 

Prior related posts:

UPDATE: A helpful exchange on Twitter allowed me to understand why these nominations are not quite a "full slate" for the USSC even though this slate has are five nominees and there are two current USSC members (Judges Charles Breyer and Danny Reeves).  I was told that current Commissioner Reeves will be leaving that role in October, so there will be one more open slot in a couple of months for another nominee.  And, consistent with the statutory need for "not more than four of the members of the Commission shall be members of the same political party," it would seem this nominee would need to be a Democrat.

August 13, 2020 in Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (3)

Tuesday, August 11, 2020

Am I crazy to think Joe Biden's pick of Senator Kamala Harris for his running mate bodes well for federal criminal justice reform?

Images (6)As reported in this AP piece, headlined "Biden selects California Sen. Kamala Harris as running mate," Joe Biden has finally made his VP choice. And, perhaps unsurprisingly, my Twitter feed is already chock full of criminal justice reform advocates lamenting various aspects of Senator Harris's criminal justice reform record.  Though I understand the basis for these criticisms, I have been rooting for Harris to get the nod because I think she may have the greatest interest and greatest ability to help advance federal criminal justice reform of any of the folks Biden was seriously considering for the VP slot.

Though many had hoped she would be significantly more progressive while serving as California's Attorney General, Harris's track record and experience in that role will surely give her considerable insights and credibility on various issues if and whenever she gets a chance to advance reforms from the VP's office.  Moreover, since her time in the U.S. Senate, Harris has been quite vocal about the need for criminal justice reform and has likely built many relationships with Senators on both sides of the aisle that might enable her to play an important role in building bipartisan support for various reform initiatives.

Most fundamentally, I want to believe that Senator Harris is likely to be among those most likely to be seriously committed to making progress on criminal justice reform. Someone like Susan Rice would likely be most concerned with foreign affairs in the VP role, and someone like Elizabeth Warren would likely to be most concerned with economic issues.  Harris surely will be and will need to be concerned with lots of issues if she is elected as VP, but I have an inkling that she will really want to help advance some form of federal criminal justice reform early in her tenure.

Last but not least, I can think of at least one notable former California AG who ended up having an extraordinary impact on criminal justice reform (and lots more) after being picked for an important nation position.

Some prior posts on Kamala Harris:

August 11, 2020 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (3)

Can someone send Prez candidate Kanye West the Booker ruling making the federal sentencing guidelines advisory?

Maxresdefault (1)The question in the title of this post is part of my reaction to seeing the criminal justice items appearing on this quirky 10-point platform coming from quirky presidential candidate Kanye West.  Though I am inclined to dismiss West's candidacy as a stunt, i believe he will be appearing on some state ballots.  And so here are two of his platform points addressing criminal justice concerns:

5. Reform the legal system to provide true justice, equitable for all citizens, regardless of race or ability to defend oneself in court.  Recognize the disparity in verdicts and prison sentences, caused by the lack of financial resources or legal assistance.

There will not be differing weights and differing measures.  Proverbs 20:10

6. Reform the approach to policing in a manner that treats all Americans the same, regardless of race, color, or ethnicity.  Refocus police forces on real crime.  Eliminate federal sentencing guidelines that tie the hands of judges, resulting in ridiculous sentences for the most minor offenses.

We will speak for those who cannot speak for themselves.  Proverbs 31:8

If the reference here to "federal sentencing guidelines" was instead to "federal mandatory minimum statutes" it would be accurate to lament how they can "tie the hands of judges, resulting in ridiculous sentences for the most minor offenses."  Recall, for example, the case of Edward Young serving a 15-year mandatory minimum Armed Career Criminal Act sentence for the crime of possessing seven shotgun shells in a drawer.  But, as most readers surely know, since the 2005 Booker ruling made the federal sentencing guidelines advisory, these guidelines no longer formally "tie the hands of judges" (though they certainly still influence lots of judges at sentencing).

August 11, 2020 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (3)

"Prosecutors' Vital Role in Reforming Criminal Justice"

The title of this post is the headline of this recent Governing commentary authored by Lucy Lang.  Here are excerpts:

The nation's criminal-justice system is at a pivotal moment. With rising public revulsion at the brutality inflicted on Black Americans by law enforcement, racial-justice groups have brought conversations around racial disparities and the justice system into the mainstream.

Prosecutors have played a historic role in exacerbating these racial disparities, and they have an equally vital role to play in the systemic reforms that are needed to turn an unfair system around.  To ensure that reforms are set up to succeed, it is incumbent on modern prosecutors to collect as much relevant data as they can and analyze it to measure disparities and evaluate policies that seek to create a more-just system.  To that end, prosecutors will benefit from a careful review of a recently published report from the Council on Criminal Justice (CCJ) in seeking to divert more cases successfully out of the system.

Promisingly, this national study of data from 2000 to 2016 reveals a significant reduction in racial disparities across most facets of the criminal-justice system.  The numbers show that during that period crime declined and, consistent with public demand, so did arrests.  In addition to shrinking the system's impact overall, the CCJ report reflects that front-end policies designed to reduce arrests and divert cases from criminal prosecution early in the process also reduced differences in treatment across race.

Seeking to further these front-end decreases, a new set of materials from the Institute for Innovation in Prosecution and Criminal Law Practitioner about prosecutor-led diversion details data-collection processes in different district attorneys' offices and how data can inform diversion programs for low-level crimes....

A vital area for data analysis related to the potential for diversion programs for violent crime is the role that a charged person's criminal history should play in indictment, sentencing and release decisions.  A person who has prior convictions often faces ever-increasing penalties for new crimes, subject to the exercise of prosecutorial discretion.  A first-time arrest for a felony may result, for example, in the offer of a pre-indictment misdemeanor plea by the prosecutor, while a second or third felony arrest is more likely to result in an indictment.  At the pleading stage, someone with no prior convictions facing a felony indictment is more likely to avoid incarceration compared to a person with prior convictions.

This undermines the notion that once someone has done his or her time, they have repaid whatever debt to society the crime purportedly incurred.  Given the uneven application of the system across demographic categories, such practices may contribute to racially disparate sentence recommendations from prosecutors as well as disparate denials of release by parole boards.

Criminal-justice reformers face some hard questions. Chief among these are how to appropriately respond to crimes of violence and whether racial disparities might be reduced by removing the criminal history of a person charged with a crime as a substantial factor during sentencing. It is incumbent upon prosecutors to look carefully at their data and consider diversion options at each stage of their decision-making.

August 11, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Monday, August 10, 2020

What should we make of a "significant decline" in white-collar criminal enforcement during the Trump Administration?

The question in the title of this post is prompted by this new Bloomberg article, headlined "Trump Oversees All-Time Low in White Collar Crime Enforcement," which I find puzzling in many ways.  Here are excerpts:

Donald Trump calls himself the “law and order” president, but when it comes to white collar crime, he has overseen a significant decline in enforcement.  The prosecution of securities fraud, antitrust violations and other such crimes has hit a record low as the pandemic slows the courts, according to one tracking service. But even before the coronavirus, the numbers were falling under the Trump administration.

The average annual number of white collar defendants was down 26% to 30% for Trump’s first three years in office from the average under President Barack Obama, according to data from the Justice Department and Syracuse University, respectively.  The trend also shows up in fines on corporations, which fell 76% from Obama’s last 20 months to Trump’s first 20 months, according to Duke University law professor Brandon Garrett. 

“Mr. Trump sets the tone,” said John Coffee, a professor at Columbia Law School whose new book, “Corporate Crime and Punishment: The Crisis of Underenforcement,” analyzes the decline.  Trump’s Justice Department has even presided over a plunge in deferred-prosecution agreements, Coffee said.  In a DPA, a company is charged with a crime but prosecutors agree to drop the case later if it admits wrongdoing, pays a penalty and makes required reforms.  The administration has also brought fewer white collar racketeering and money-laundering cases, crimes that carry harsher penalties, he said. “All that is an indication that white collar crime is not a priority,” Coffee said....

The Justice Department says it hasn’t eased up at all.  Prosecutors “continue to bring federal charges in white collar and other cases according to facts, the law and the principles of federal prosecution,” said Peter Carr, who was a spokesman for the department’s Criminal Division until moving recently to the Department of Homeland Security. The Department of Justice “can’t vouch for TRAC’s methodology,” Carr said, referring to Syracuse University’s Transactional Records Access Clearinghouse, which monitors trends in federal law enforcement and whose records reflect a decline of about 30% in prosecutions under Trump....

DOJ spokesman Matt Lloyd said the Criminal Division’s Fraud Section, which focuses on white collar crime, “has achieved record numbers of individual and corporate criminal cases and resolutions over the past three years,” including a 59% increase in individuals charged between 2016 and 2019 and a jump of more than a quarter in those convicted.  He didn’t comment specifically on the 26% decline reflected in the data published by the U.S. attorney offices nationwide, which cover a much larger set of white collar prosecutions, but called the Fraud Section’s achievements “a key indicator of the department’s commitment” to the issue.

Prosecutions have been declining for the past decade but have never been so low.  The Justice Department under Trump has shifted its focus from traditional white collar cases, like big securities prosecutions, to immigration and the sort of corporate espionage targeted by the DOJ’s China Initiative, said Robert Anello, a white collar defense lawyer in New York....

The Internal Revenue Service's ... Criminal Investigation division helps send people to prison for crimes such as tax evasion, money laundering and identity theft.  The agency saw a 36% decrease in new criminal investigations from fiscal 2015 to 2019, IRS records show.

One factor in the decline in traditional white collar prosecutions is an important change to what’s known as the Yates memo.  In 2015, under Obama, Deputy Attorney General Sally Yates required companies seeking leniency to help develop evidence against their employees and turn over possible suspects.  In 2018, under Trump, the Justice Department softened the criteria. 

So is there an on-going white-collar crime "crisis"?  How would we know?  Why is it that we now see a whole lot of media reporting increases in shootings in urban areas, but we do not see any media looking at possible increases in securities fraud in suburban areas?  I ask these questions not to be cheeky, but rather to note how much more we generally focus upon and tend to better understand "crime in the streets" rather than "crime in the suites."

August 10, 2020 in Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Sunday, August 09, 2020

"Supervised Release Is Not Parole"

The title of this post is the title of this notable new paper authored by Jacob Schuman just posted to SSRN. Here is its abstract:

The United States has the largest prison population in the developed world.  Yet outside prisons, there are almost twice as many people serving terms of criminal supervision in the community — probation, parole, and supervised release.  At the federal level, this “mass supervision” of convicted offenders began with the Sentencing Reform Act of 1984, which abolished parole and created a harsher and more expansive system called supervised release.  Last term in United States v. Haymond, the Supreme Court took a small step against mass supervision by striking down one provision of the supervised release statute as violating the right to a jury trial.  But the Justices did not consider all the differences between parole and supervised release, which have far broader consequences for the constitutional law of community supervision.

The current consensus among the courts of appeals is that supervised release is “constitutionally indistinguishable” from parole and therefore governed by the same minimal standard of due process.  Closer inspection, however, reveals three significant differences between parole and supervised release.  First, parole was a relief from punishment, while supervised release is an additional penalty. Second, parole revocation was rehabilitative, while supervised release revocation is punitive.  Finally, parole was run by an agency, while supervised release is controlled by courts.  Because of these differences, revocation of supervised release should be governed by a higher standard of due process than revocation of parole.  In particular, defendants on supervised release deserve more protection against delayed revocation hearings, which may deny them the opportunity to seek concurrent sentencing.

August 9, 2020 in Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Friday, August 07, 2020

Effective review of messiness of federal compassionate releases amidst COVID

BuzzFeed News has this great lengthy new piece on the messy realities of federal compassionate release realities during the pandemic. The full headline of the piece, which I recommend in full, provides a summary: "'I Had Hit The Lottery': Inmates Desperate To Get Out Of Prisons Hit Hard By The Coronavirus Are Racing To Court: With little legal precedent for a global pandemic, judges are deciding on a case-by-case basis how to weigh the risks of COVID-19 in prisons."  Here is an excerpt:

A BuzzFeed News review of more than 50 cases filed in the federal district court in DC showed that with little precedent for a flood of release requests during a pandemic, decisions about who gets out of prison and who does not can appear arbitrary. Prisoner advocates and defense lawyers say these cases can come down to the luck of the draw, with some judges proving to be more sympathetic than others.

Judges are making medical assessments about how much of a threat COVID-19 poses to an individual inmate and then deciding how to balance that against the public safety risk of sending that person back into the community; inmates are usually released to home confinement or under the supervision of a probation officer. And judges are reaching different conclusions about how to measure an inmate’s risk of exposure in state and federal prisons, which have seen some of the worst clusters of COVID-19 cases nationwide.

Boykin is one of more than 800 inmates who have been granted compassionate release by a federal judge since March, according to data from the Federal Bureau of Prisons. Another 7,000 federal inmates have been released by the BOP to home confinement in the same period, after Attorney General Bill Barr directed the bureau to prioritize using its own release power for eligible inmates to minimize the spread of COVID-19. More than 150,000 federal inmates remain incarcerated.

Thousands of inmates are still exploring options to get out. Families Against Mandatory Minimums, just one of the groups that connect inmates with pro bono legal assistance, has fielded more than 3,000 requests for help since the start of the pandemic. They’ve been able to match approximately 1,200 inmates and family members with lawyers.

“We were hoping ... that judges would not want to be a party to this ongoing, slow massacre in the prisons. And they’re not, and that’s good,” said FAMM President Kevin Ring. However, he said, when it comes to how judges are analyzing release requests, “it’s not consistent across jurisdictions — there are some judges who have been stricter and some who have been more lenient.”

August 7, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, August 06, 2020

"Man is Opposed to Fair Play': An Empirical Analysis of How the Fifth Circuit Has Failed to Take Seriously Atkins v. Virginia"

The title of this post is the title of this notable new article now on SSRN authored by Michael L. Perlin, Talia Roitberg Harmon and Sarah Wetzel.  Here is its abstract:

In 2002, for the first time, in Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court found that it violated the Eighth Amendment to subject persons with intellectual disabilities to the death penalty.  Since that time, it has returned to this question multiple times, clarifying that inquiries into a defendant’s intellectual disability (for purposes of determining whether he is potentially subject to the death penalty) cannot be limited to a bare numerical “reading” of an IQ score, and that state rules based on superseded medical standards created an unacceptable risk that a person with intellectual disabilities could be executed in violation of the Eighth Amendment.

Atkins provides a blueprint, but the question remains as to whether it will, in the long run, be more than a “paper victory.”  Until these issues are carefully considered, the true legacy of Atkins and its progeny will not be at all clear, and it will similarly not be clear if the case’s revolutionary potential will be fulfilled.  In this paper, we seek to answer this question: to what extent has the Fifth Circuit given meaningful life to Atkins and its progeny?  Our research reveals that, in the universe of 70 “Atkins cases” (that is, cases in the Fifth Circuit in which colorable Atkins-based arguments had been raised by defendants on habeas corpus applications), in only nine cases (12%) was any actual and meaningful relief granted to defendants (their sentences being commuted to life in prison, with one of those defendants having a parole hearing scheduled).  In 40 of the 70 cases (57%), the Circuit affirmed a decision below, in most cases, denying applications for writs of habeas corpus. Eight cases (11%) are still pending, that is, there was a remand from the Fifth Circuit or a grant of a certificate of appealability, and further proceedings are currently taking place or being scheduled.  In 13 cases (18.5%), although preliminary relief had been granted, defendants were ultimately unsuccessful; as of the writing of this paper, ten have been executed, one defendant’s execution has been stayed because of Covid-related reasons, one died in prison and one remains on death row. In short, if every one of the defendants in pending cases is successful (an outcome that, based on the Fifth Circuit’s global track record, is certainly not likely), that will mean that Atkins’ claims were successful in just 24% of all cases.

Our findings also revealed important patterns of why certain defendants were successful, and the majority were unsuccessful. It was more likely that at least preliminary relief was granted in those cases in which defendants were able to rebut allegations that they were “malingering,” in which effort to raise the so-called “Flynn effect” were prevalent, and in which the WAIS IQ test was relied upon; if all three were present, that seemed to heighten the likelihood of success.  On the other hand, the findings also revealed that it was less likely that a defendant would be successful if the WISC IQ test were used, if there was no rebuttal for malingering claims or if the subsequently-discredited testimony of one forensic psychologist was used by the state.

Our roadmap is this: First, we discuss the Atkins case and the significance of how post-Atkins cases modified and reinforced some of Atkins’ most salient points.  Following this, we will examine the universe of Fifth Circuit cases applying (often, misapplying) Atkins, explaining our methodology and revealing our findings.  We then consider this entire area of law and policy through the lens and filter of therapeutic jurisprudence, and then subsequently apply that doctrine’s principles to the database of the cases in question.  We conclude by offering some modest suggestions focusing on how we can finally, some 17 years after one of us used this phrase in a title of another law review article about Atkins, “giv[e] life” to this case.

August 6, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, August 05, 2020

Iowa Gov, via executive order, restores voting rights to thousands with felony convictions

As reported in this lengthy local article, headlined "Gov. Kim Reynolds signs executive order restoring felon voting rights, removing Iowa's last-in-the-nation status," fans of democracy has some good news to celebrate today out of the great state of Iowa.  Here are the details:

Thousands of Iowans with felony convictions who have served their sentences can now participate in November's presidential election after Gov. Kim Reynolds signed an executive order Wednesday restoring their voting rights.

Reynolds, a Republican, signed the executive order Wednesday morning in her office at the Iowa Capitol, flanked by a group of local leaders and legislators.  "Quite simply, when someone serves their sentence and pays the price our justice system has set for their crimes, they should have their right to vote restored, automatically, plain and simple," she said.

Iowa was the last state in the nation that still banned all people with felony convictions from voting — even after the completion of their sentences — unless they applied individually to the governor's office to have their rights restored.

Reynolds has spent the past two years advocating for the Iowa Legislature to pass a constitutional amendment that would restore voting rights but had resisted calls to sign an executive order, saying she believes a constitutional amendment is the best solution because it can't be changed by a future governor.  This summer, after Republicans in the Iowa Senate did not pass the amendment and after George Floyd's death prompted increased advocacy on racial justice issues, she announced she would sign the order.

Iowa's felon voting ban was estimated to affect tens of thousands of people.  The Iowa Department of Corrections has discharged an average of 5,000 people with felony convictions annually in recent years, according to Sam Langholz, the governor's legal counsel.  A 2016 report from The Sentencing Project found that the ban affected nearly one in 10 African-American adults....

Reynolds' order states that felons must have discharged their sentence, including any parole and probation, before their voting rights will be restored.  Anyone still serving a prison sentence for a felony conviction will not be able to vote.

The order does not automatically grant voting rights to people convicted of felonies outlined in Iowa Code chapter 707, which includes murder and manslaughter.  People convicted of serious sexual abuse crimes will need to complete any special sentences before their voting rights are restored.  Those special sentences last either 10 years or for life, depending on the crime, meaning people convicted of the most serious sexual crimes will never automatically regain their voting rights. Those whose voting rights are not automatically restored under the order can still petition the governor individually to have them restored.

The executive order does not require people with felony convictions to fully pay back any restitution payments owed to their victims before regaining their rights, as was included in a bill introduced by Republicans in the Iowa Senate earlier this year. But the order does not relieve them from making their payments.  Nearly one in four Iowa felony convictions in the last two years came with a judgment ordering restitution to be paid to victims.  The average tab for those nearly 4,000 convictions is $11,607....

Matthew Bruce, an organizer with Des Moines Black Lives Matter, said he didn't agree with how the executive order prevents automatic restoration for people on probation or parole.  But he said he was encouraged to see that the order doesn't require payment of restitution.  "I was very glad about the restitution piece, and I thought that was the biggest victory out of all of this," he said.

In her remarks, Reynolds again emphasized her commitment to eventually restoring voting rights through a constitutional amendment. “Let me be clear, an executive order is at best a temporary solution,” she said.  “It can be changed with the stroke of a pen by the next governor, which is not good enough.  Something that is fundamentally right should not be based on the benevolence of a single elected official.”

August 5, 2020 in Collateral consequences, Who Sentences | Permalink | Comments (1)

By 5–4 vote, Supreme Court stays Orange County jail to implement certain COVID safety measures

This evening the Supreme Court, voting 5-4 along the "usual" lines, issued a stay to block an order requiring a local jail in California to implement certain safety measures to provide greater COVID protection to inmates.  The majority's order is just a paragraph and includes no reasoning, but Justice Sotomayor's eight-page dissent has a lot to say.  Here is how it starts and ends:

Today, this Court steps in to stay a preliminary injunction requiring Sheriff Don Barnes and Orange County (collectively, the Orange County Jail, or Jail) to implement certain safety measures to protect their inmates during the unprecedented COVID–19 pandemic.  The injunction’s requirements are not remarkable.  In fact, the Jail initially claimed that it had already implemented each and every one of them.  Yet, apparently disregarding the District Court’s detailed factual findings, its application of established law, and the fact that the Court of Appeals for the Ninth Circuit has twice denied a stay pending its review of the District Court’s order, this Court again intervenes to grant a stay before the Circuit below has heard and decided the case on the merits....  The Jail’s application does not warrant such extraordinary intervention.  Indeed, this Court stays the District Court’s preliminary injunction even though the Jail recently reported 15 new cases of COVID– 19 in a single week (even with the injunction in place), even though the Jail misrepresented under oath to the District Court the measures it was taking to combat the virus’ spread, and even though the Jail’s central rationale for a stay (that the injunction goes beyond federal guidelines) ignores the lower courts’ conclusion that the Jail’s measures fell “well short” of the Centers for Disease Control and Prevention (CDC) Guidelines...

At the time of the injunction, there were nearly 3,000 inmates still in the Jail’s care, 488 of whom were medically vulnerable to COVID–19.  “[H]aving stripped them of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials” must “‘take reasonable measures to guarantee the[ir] safety.’”  Farmer, 511 U.S., at 832–833; see also Valentine v. Collier, 590 U.S. ___, ___–___ (2020) (statement of SOTOMAYOR, J.) (slip op., at 6–7) (“It has long been said that a society’s worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm”).  The District Court found that, despite knowing the severe threat posed by COVID–19 and contrary to its own apparent policies, the Jail exposed its inmates to significant risks from a highly contagious and potentially deadly disease.  Yet this Court now intervenes, leaving to its own devices a jail that has misrepresented its actions to the District Court and failed to safeguard the health of the inmates in its care.  I respectfully dissent.

August 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

ACLU launches "The Redemption Campaign - Embracing Clemency" seeking release of 50,000 from state prisons via clemency

This new press release reports on a notable new national clemency initiative.  Here are the highlights and links:

The American Civil Liberties Union today launched The Redemption Campaign -- Embracing Clemency, a first of its kind nationwide effort to release 50,000 people from state prisons over the next five years by executing state-level campaigns that push governors to use their existing clemency powers in new and transformational ways.  The campaign will work with governors to confront mass incarceration and racial injustice by granting commutations to large groups of people who are unjustifiably imprisoned.

A poll released by the ACLU today finds widespread support for governors to use their clemency authority to correct past injustices.  Eighty percent of voters support ending or shortening the prison sentences of certain people in prison. This includes 80 percent of Democrats, 73 percent of Republicans, and 81 percent of independents. Among those who have personally been a victim of a crime, 82 percent support clemency.

The ACLU’s efforts will initially focus on urging governors to release: 

  • People who, if convicted under current laws, would serve a lesser sentence than what they are currently serving;
  • People convicted of drug distribution and possession offenses, regardless of underlying substance;
  • People incarcerated for technical probation or parole violations; and
  • Older incarcerated people.

In the coming months, the ACLU will launch state-level campaigns to ensure governors use their clemency powers to release people in their states.  This will include direct candidate engagement and voter education in upcoming gubernatorial races as well as mobilization of constituents in states across the nation....

The ACLU will kick off the campaign with a live town hall event featuring leading activists who have received clemency, Cyntoia Brown Long and Jason Hernandez.  The town hall will begin at 7:00 p.m. ET on August 5, 2020 and will discuss the need for our leaders to recognize the power of clemency in correcting the harms caused by the decades long war on drugs and tough-on-crime era.

Racial disparities in prison populations are rampant.  Black and Latinx people make up 57 percent of the state prison populations despite comprising just 29 percent of the overall population, and those disparities exist across various convictions and sentences.  Nearly 50 percent of people serving life sentences, and nearly 60 percent of people serving life without parole, are Black.

Freeing 50,000 people is readily achievable.  Of the 1.3 million people in state prisons, nearly 165,000 people are over the age of 55, and the number of older incarcerated people continues to grow.  Further, there are 280,000 people imprisoned for supervision violations as probation and parole have failed to divert people out of the system and have instead become primary drivers of the mass incarceration crisis.  It is clear from any metric that far too many people are being harmed by the brutal excesses of the criminal legal system — serving sentences that serve no purpose other than to punish and degrade.

The ACLU/BPI poll is here 

A blog post by Jason Hernandez, detailing his experience with clemency, is here

The Corrective Compassion trailer video is here

A blog by former prosecutor Preston Shipp on clemency is here

August 5, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Advocacy groups urge Congress to include provisions to safeguard incarcerated persons in latest COVID bill

COVID19-State-Prisons-5AUG20-2048x1152A variety of leading advocacy groups sent this detailed letter to congressional leaders yesterday to advocate for "critical provisions to protect the health and safety of incarcerated individuals in the COVID-19 response package currently being negotiated."  Here is a portion of the first part of the six-page letter:

While the Coronavirus Aid, Relief, and Economic Security (CARES) Act expanded the Federal Bureau of Prison’s (BOP) authority to release individuals to home confinement, BOP and the Department of Justice (DOJ) have failed to exercise this authority. BOP and DOJ have been negligent in meeting Congress’ charge to quickly and safely reduce the prison population and minimize the spread and harm of COVID-19 for incarcerated persons and correctional staff.  Therefore, more is urgently required to address the alarmingly high infection rates occurring in correctional facilities across the nation.

As Congress works to provide additional relief for individuals impacted by the pandemic, it has a moral obligation to extend that relief to all of our most vulnerable — the elderly, the sick, those without medical care, and those unable to protect themselves from the virus — including those who are incarcerated.  We urge you to prioritize the health and wellbeing of incarcerated people and their families by incorporating the five recommendations outlined below in the next stimulus package.

The letter closes with detailed advocacy for these five action items:

It is therefore absolutely critical that Congress act swiftly to address the issues facing incarcerated individuals in the next COVID-19 relief package.  At a minimum, such legislation should include:

1. Provisions that will dramatically reduce pretrial and prison populations....

2. An expansion of court authority to release individuals in BOP Custody....

3. Increases in the availability of home detention for elderly people....

4. Provisions that facilitate essential communication with counsel....

5. Additional support at the federal, state, and local level to prevent, prepare for, and respond to coronavirus....

UPDATE: I just saw this notable new posting by The Council of State Governments Justice Center which highlights the continued urgency of these issues (and has the graphic I have added to this post).  The analysis is titled "COVID-19 Cases in State Prisons Grew by 12 Percent Every Week Last Month," and here is how it begins:

A new analysis by The Council of State Governments Justice Center shows that states are continuing to battle the growing spread of COVID-19 in their correctional facilities, with the number of positive cases in prisons rising 12 percent each week over the last month.

While states with some of the largest prison populations — such as Texas, California, Florida, Georgia, and Ohio—are seeing cases increase, Arkansas, Tennessee, and Delaware appear to have the highest proportion of COVID-19 infections among people incarcerated in their state prisons.

The following graph shows how the total number of cases is growing in state prisons across the country, and the maps below offer state-by-state data on how the virus is taking shape in these facilities.

August 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Tuesday, August 04, 2020

Noting some of McGirt's early and uncertain echoes

Just under a month ago, the Supreme Court, via a 5-4 vote, decided in McGirt v. Oklahoma, No. 18–9526 (S. Ct. July 9, 2020) (available here), that a huge part of the state of Oklahoma "remains an Indian reservation for purposes of federal criminal law."  The start of Chief Justice Roberts' dissent expressed concern about the potential fall-out from this ruling, and a number of recent press pieces are starting to address this story in detail.  Here is a recent round-up:

From the ABA Journal, "After SCOTUS tribal decision, inmates file appeals, prosecutors hand off cases"

From the Marshall Project, "Half of Oklahoma Is Now Indian Territory.  What Does That Mean for Criminal Justice There? Tribal courts and federal prosecutors face a flood of new cases after the Supreme Court ruling."

From the McAlester News-Capital, "Batton: 'More questions than answers' after McGirt ruling"

From the New York Times, "A Historic Supreme Court Ruling Upends Courts in Oklahoma. Local prosecutors are referring criminal cases to the federal and tribal courts, which are now flooded with new cases."

From the Tulsa World, "McGirt ruling 'not a get out of prison free card,' Oklahoma AG says in request for court's guidance"

August 4, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, August 03, 2020

"Is Death Different to Federal Judges?"

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

Legal commentators have long believed that federal judges treat capital appeals more favorably than noncapital appeals.  However, due to the bifurcated nature of capital trials and the complexity of the ensuing appeals, no empirical research to date has proven that the guilt-phase claims of capital defendants are more likely to succeed on federal habeas review than the claims of other defendants. 

This Note addresses that gap in the literature.  The Author analyzed 1,368 votes cast by federal appellate judges between 2013 and 2017 in murder cases heard on habeas review.  In each of those cases, the defendant was under a sentence of either death or life in prison. Exploiting this unique dataset, this Note finds that federal appellate judges are significantly more likely to grant guilt-phase relief to capital defendants than they are to similarly situated noncapital defendants.  It then rules out alternative explanations for this finding of a “sentencing effect,” such as differential attorney investment or dissimilarity between capital and noncapital defendants.  After establishing that federal appellate judges do in fact behave differently in capital cases, the Note considers the normative implications of this finding.  It ultimately concludes that the behavior of federal judges on habeas review is consistent with a generally shared principle of capital jurisprudence: preventing the execution of innocents.

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

Important reminders that federal prisons remain problematic and deadly COVID hotspots

Today my inbox got two dispiriting reminders that federal prisons are still struggling in many awful ways with the coronavirus pandemic.  One reminder came from this new Washington Post piece headlined "Frail inmates could be sent home to prevent the spread of covid-19.  Instead, some are dying in federal prisons." I recommend the full piece (which discusses numerous compassionate release cases), and here are excerpts:

The Bureau of Prisons said 25 people have died in its custody this year while their requests for sentence reduction were under consideration, including 18 since March 1, around the time the coronavirus began spreading in U.S. communities.

To fight the virus’s spread, Attorney General William P. Barr in late March directed federal prisons to send vulnerable, low-risk inmates to home confinement or release them outright. According to the Bureau of Prisons website, about 7,000 inmates, or about 4 percent of its 160,000-inmate population, have been sent home since.

But the bureau has largely disregarded one method it has to release inmates, a procedure that seems ideally suited for the coronavirus pandemic — compassionate release. Part of bipartisan legislation passed in 2018, compassionate release was intended as a way to swiftly grant release to inmates who are terminally ill or for other “extraordinary and compelling reasons.” Yet even as it has released some prisoners to home confinement, the bureau routinely has opposed or not responded to requests for compassionate release.

In 50 cases decided in early July, for example, the bureau opposed 38 compassionate release requests or did not respond to them, and the requests were denied by courts, which make the final decision. The bureau also opposed 10 cases that courts eventually granted. Only in two cases did the agency agree to a release before a court intervened. In an email, bureau spokesman Justin Long said the bureau “has been proceeding expeditiously” on compassionate release requests....

The ACLU and other advocates for prisoners sued the bureau in May, seeking the release of as many Butner inmates as needed to allow for social distancing. “What’s alarming in all these institutional cases is how slow and sluggish the system has been to respond,” said Jonathan Smith of the Washington Lawyers’ Committee, which joined the lawsuit.

In a court document dated June 11, bureau officials said that since Barr’s guidance was released, 42 inmates at Butner — about 1 percent of the prison’s population — were transferred to home confinement, and nine were transferred to halfway houses. The number of compassionate releases from Butner was not readily available, BOP said.

A second reminder came in the form of this new fact sheet from the Federal Public Community Defenders titled "The Worsening COVID-19 Crisis in Federal Detention."  This two-page document (with lots of links) should also be read in full, and here is its opening paragraphs:

COVID-19 is ripping through the Federal Bureau of Prisons (BOP), infecting incarcerated individuals at a rate 5.95 times higher than the general population.  This crisis is occurring in a system that, due to structural racism, is disproportionately populated by Black and Hispanic people.  And Attorney General Barr and BOP are using a risk assessment tool (PATTERN) — that likely has an outsized negative impact on Black men — to prioritize eligibility for home confinement. The Department of Justice (DOJ) has not provided demographic data on the individuals BOP has approved for home confinement, despite congressional demands, and the only public data it has provided on PATTERN indicate just 7% of Black men qualify compared to 30% of white men. As the public rises to demand a reckoning with institutional racism, we cannot allow these conditions to persist.

On June 2, BOP Director Carvajal told Congress “We are beginning to flatten the curve.”  He was wrong.  BOP reports at least 107 deaths of incarcerated individuals.  The highest number of deaths in BOP prisons have occurred in Texas (currently the site of the three worst federal prison outbreaks in the country), North Carolina, California, Ohio, Kentucky, and Louisiana.  Some of these deaths were surely preventable.  BOP’s press releases reveal that the majority of these individuals — 83 — were known to be at higher risk of complications from COVID-19.  Over a quarter of the people who have died in BOP’s care were seventy years old or older. But they were never moved to a place of safety. And at least five died after asking — and some even being approved — for compassionate release or home confinement

August 3, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Study details how Georgia execution rate is "substantially greater" for those convicted of killing white victims than for those convicted of killing black victims

This New York Times article, headlined "A Vast Racial Gap in Death Penalty Cases, New Study Finds," highlights new research on the intersection of race and the death penalty.  Here are excerpts from the press piece with a few of the original links to the original research:

Black lives do not matter nearly as much as white ones when it comes to the death penalty, a new study has found.  Building on data at the heart of a landmark 1987 Supreme Court decision, the study concluded that defendants convicted of killing white victims were executed at a rate 17 times greater than those convicted of killing Black victims.

There is little chance that the new findings would alter the current Supreme Court’s support for the death penalty. Its conservative majority has expressed impatience with efforts to block executions, and last month it issued a pair of 5-to-4 rulings in the middle of the night that allowed federal executions to resume after a 17-year hiatus.

But the court came within one vote of addressing racial bias in the administration of the death penalty in the 1987 decision, McCleskey v. Kemp. By a 5-to-4 vote, the court ruled that even solid statistical evidence of race discrimination in the capital justice system did not offend the Constitution....

The McCleskey decision considered a study conducted by David C. Baldus, a law professor who died in 2011.  It looked at death sentences rather than executions, and it made two basic points.  The first was that the race of the defendant does not predict the likelihood of a death sentence.  The second was that the race of the victim does.  Killers of white people were more than four times as likely to be sentenced to death as killers of Black people, Professor Baldus found.

The new study, published in The Harvard Civil Rights-Civil Liberties Law Review, examined not only death sentences but also whether defendants sentenced to death were eventually executed. “The problematic sentencing disparity discovered by Baldus is exacerbated at the execution stage,” wrote the study’s authors, Scott Phillips and Justin Marceau of the University of Denver. Professor Baldus’s study examined more than 2,000 murders in Georgia from 1973 to 1979, controlling for some 230 variables.

Though some have argued that Professor Baldus did not consider every possible variable, few question his bottom-line conclusion, and other studies have confirmed it. In 1990, the General Accounting Office, now called the Government Accountability Office, reviewed 28 studies and determined that 23 of them found that the race of the victim influenced “the likelihood of being charged with capital murder or receiving a death sentence.” “This finding was remarkably consistent across data sets, states, data collection methods and analytic techniques,” the report said. A 2014 update came to a similar conclusion.

One factor Professor Baldus could not analyze, given the decades that often pass between sentencings and executions, was whether the race of the victim correlated to the likelihood of the defendant being put to death. The new study, the product of exhaustive research, supplied the missing information. It found that 22 of the 972 defendants convicted of killing a white victim were executed, as compared with two of the 1,503 defendants convicted of killing a Black victim.

The new study also confirmed just how rare executions are. Of the 127 men sentenced to death in the Baldus study, 95 left death row thanks to judicial action or executive clemency; five died of natural causes; one was executed in another state; one escaped (and was soon beaten to death in a bar fight); and one remains on death row.

A more general and less granular 2017 study compared two sets of nationwide data: homicides from 1975 to 2005 and executions from 1976 to 2015. Its conclusions were similarly striking. About half of the victims were white, that study found, but three-quarters of defendants put to death had killed a white person. About 46 percent of the victims were Black, but only 15 percent of defendants who were executed had killed a Black person.

Eric M. Freedman, a law professor at Hofstra, said courts and lawmakers had failed to confront the question of racial bias in the administration of capital punishment. “The continuing adherence of the Supreme Court to McCleskey is a continuing statement that Black lives do not matter,” he said. “The continuing failure of Congress and the state legislatures to remedy the situation is a continuing admission that the states are unable to run racially unbiased death penalty systems.”

I always find in-depth exploration of the Baldus study and McClesky so interesting and important, in part because David Baldus discovered that even in Georgia in the 1970s, it appears that the race of the defendant had relatively little or no impact on who was ultimately sentenced to death.  That strikes me as itself a remarkable and encouraging finding, even though he reached the corresponding and discouraging finding that the race of the victim did have a huge impact on who was ultimately sentenced to death.  But, as Prof Randall Kennedy astutely explored in this terrific article published right after the McClesky decision, one logical response to these kinds of race-of-the-victim disparity studies is to call for far more executions of persons who kill black victims to signal in this context that black lives matter as much as white ones.

According to my quick searching using the DPIC database, it appears that only 3 of 25 persons executed in the United States in 2018 had black victims, whereas in 2019 there were 6 of 22 persons executed in the US who had black victims.  Should we be "celebrating" that black lives mattered more than twice as much in the operation of the US machinery of death in 2019 than in 2018?  Circa 2020 when the feds are now poised to be the most active of executioners, should we all be urging Attorney General Barr, as he continues adding names to the list of condemned to now be marched into the federal death chamber, to be working harder to pick from federal death row those killers with black victims?

My point here is just to recall in this context Prof Kennedy's important insight that the most ready response to these kinds of race-of-the-victim disparities may be to encourage more (capital) punishment, especially if we end up talking about these disparities in terms of certain victims not getting equal justice.   I would also add that I wish there was a lot more of this kind of race-of-the-victim sentencing disparity conducted concerning non-capital crimes.  I suspect and fear that there may be even more pernicious individual and community harms resulting from persistently unequal sentencing for those who commit sexual or property offenses with black victims.  

August 3, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Sunday, August 02, 2020

US Department of Justice sets two execution dates for late September

As I have mentioned before, in this recent post I wondered aloud "How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?".  My central point in that post was that, after the completion of three federal executions earlier this month thanks to SCOTUS lifting lower court stays, there is every reason to believe that AG Barr will be able to complete however many executions he decides to set in the near future.

Thereafter, as reported in this post, DOJ set the execution of Lezmond Mitchell for August 26, 2020.  And late Friday, as detailed in this DOJ press release, AG Barr has decided that he wants to move forward with at least two more executions in 2020.  This release includes these particulars:

Attorney General William P. Barr ... directed the Federal Bureau of Prisons to schedule the executions of two federal death-row inmates who were each convicted of murder.

  • William Emmett LeCroy raped and murdered Joann Lee Tiesler, a 30-year-old nurse, in 2001.  LeCroy had previously served 10 years in federal and state prison for, among other crimes, aggravated assault, burglary, child molestation, and statutory rape.  After his release to supervised probation, LeCroy began planning to flee the country.  In furtherance of that plan, LeCroy broke into Tiesler’s home in Gilmer County, Georgia.  Once she returned home, LeCroy attacked her, bound her hands behind her back, strangled her with an electrical cord, and raped her.  Then he slashed her throat with a knife and stabbed her in the back five times.  LeCroy then stole Tiesler’s vehicle and drove to the Canadian border, where he was arrested....  LeCroy’s execution is scheduled for Sept. 22, 2020.
  • Christopher Andre Vialva murdered youth ministers Todd and Stacie Bagley in 1999.  While stopping to use a payphone in Killeen, Texas, Todd Bagley agreed to give a ride to Vialva and two of his accomplices.  In the victims’ car, Vialva pulled out a gun, forced the Bagleys into the trunk, and drove the vehicle for several hours, stopping at ATMs to withdraw money from the couple’s bank account and trying to pawn Stacie Bagley’s wedding ring.  While locked in the trunk, the couple spoke with their abductors about God and pleaded for their lives.  Vialva eventually parked at a remote site on the Fort Hood, Texas, military reservation, where an accomplice doused the car with lighter fluid as the couple sang and prayed.  Vialva then shot Todd Bagley in the head, killing him instantly, and shot Stacie Bagley in the face, knocking her unconscious and leaving her to die of smoke inhalation after an accomplice set the car on fire.... Vialva’s execution is scheduled for Sept. 24, 2020.

A few of many recent prior related posts:

August 2, 2020 in Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Saturday, August 01, 2020

Noticing problems with crack sentence reduction retroactivity, especially when certain judges are discretionarily disinclined

The New York Times has this effective new article highlighting the ugly underbelly of the FRIST STEP Act's efforts to make sure the Fair Sentencing Act's reduction of crack sentences was fully retroactive.  The headline and subheadline of the piece serves as a summary: "Law to Reduce Crack Cocaine Sentences Leaves Some Imprisoned: Critics say the First Step Act is being applied too arbitrarily by judges who are taking a hard line when it comes to revisiting nonviolent drug sentences."  Here are excerpts from a piece worth reading in full:

By and large, the First Step Act has met its goal of reducing federal sentences for nonviolent drug offenders, addressing a longstanding disparity in which crack cocaine convictions in particular led to far harsher penalties than other drug offenses and disproportionately increased imprisonment of Black men.

Thousands of inmates across the country, predominantly people of color, have been released or resentenced under a provision of the new law that allowed changes to the sentencing provisions to be applied retroactively.  As of January, 2,387 inmates had their sentences reduced under the provision that allows some crack cocaine offenders to be resentenced, out of 2,660 that the United States Sentencing Commission estimated in May 2018 were eligible.

But the law gives judges discretion in reducing sentences, leaving some inmates like Mr. Maxwell without much recourse when their applications are rejected. In those cases, activists and defense lawyers worry that the First Step Act gives too much authority to judges to determine who does and does not deserve early release.  “It’s like the luck of the draw,” said Sarah Ryan, a professor at Wesleyan University who has analyzed hundreds of First Step Act resentencing cases.  “You’ve got people sitting in prison during a pandemic, and it’s not supposed to come down to who your judge is.  It’s supposed to come down to the law.”

The simple enactment of the bill was no guarantee for inmates.  This provision of the bill did not mandate that the judges must resentence eligible offenders; Congress specified that “nothing in this section shall be construed to require a court to reduce any sentence.”...

The section of the act that governs resentencing for crack cocaine convictions is just four sentences long.  It made retroactive the 2010 Fair Sentencing Act, which reduced sentencing disparities between crack and powder cocaine.  Courts have been relatively slow to determine some of the ambiguities of the act, including whether to consider behavior behind bars or other concurrent charges as factors in the decision.

Many public defenders — who handle most of these applications — in the toughest districts declined to speak on the record for fear of upsetting the judges who oversee their cases. Parks Small, a federal public defender in Columbia, S.C., said an imperfect First Step Act was still better than nothing, calling the bill a “godsend” for many inmates.  He added that judges varied as to the importance they placed on the original offense or the inmate’s behavior behind bars.  “You give it to different judges, they’re going to come up with different opinions,” Mr. Small said.  “It’s frustrating.”

August 1, 2020 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Friday, July 31, 2020

First Circuit panel reverses death sentence of Boston Marathon bomber Dzhokhar Tsarnaev

Roughly five years after a jury handed down a death sentence to the Boston Marathon bomber Dzhokhar Tsarnaev back in May 2015, today a First Circuit panel reversed the sentence while affirming his convictions.  This local NPR piece provides the basics and some context:

A federal appeals court has overturned the death sentence of admitted Boston Marathon bomber Dzhokhar Tsarnaev, saying the trial judge didn't do enough to ensure an unbiased jury.

The First Circuit Court of Appeals Friday ordered a new penalty phase of the trial, where a new set of jurors would decide whether to sentence Tsarnaev to life or death.  "A core promise of our criminal-justice system is that even the very worst among us deserves to be fairly tried and lawfully punished," Judge O. Rogeriee Thompson wrote in her 182-page opinion.

The federal appeals court said that Judge George O'Toole didn't do enough to make sure jurors were not tainted by pretrial publicity.... "But as to 9 of the 12 seated jurors, the judge fell short on this front," Thompson wrote. "The judge qualified jurors who had already formed an opinion that Dzhokhar was guilty — and he did so in large part because they answered 'yes' to the question whether they could decide this high-profile case based on the evidence."

But by not having the jurors identify exactly what they already knew about the case, the judge couldn’t determine whether they were actually fit to serve. The First Circuit Court of appeals issued its decision Friday, after hearing arguments in the case in December 2019.

Tsarnaev and his older brother Tamerlan killed three and injured more than 260 people near the finish line of the marathon in 2013, then murdered a police officer several days later. Tamerlan was killed during the manhunt for the brothers. In 2015, a jury convicted Dzhokhar Tsarnaev of all 30 counts against him, and then handed down six death sentences.

Liz Norden, whose two sons J.P. and Paul each lost their right leg in the bombing, supported the death penalty for Tsarnaev. In an interview with WBUR Friday, she said the appeals court decision made her “sick to her stomach.” She said she’s sad at the prospect of a new penalty phase of the trial, but having sat through the first trial, is willing to do it again....

Bombing survivor Michelle L’Heureux said she was "sad and frustrated" by the decision. "We had closure. And now that’s gone," she said. "This is going to take a toll on so many of the survivors and the families of those who never made it home. I, fortunately, through my own recovery, have gained strength and have found ways to cope with the trauma of what I and so many suffered on that fateful day in April 2013. This is a step back for many. And that is a disgrace."

The family of Martin Richard, the youngest victim of the bombing at 8 years old, declined to comment. But they pointed to a letter they wrote in 2015, just after Tsarnaev was convicted but before he was sentenced. "To end the anguish, drop the death penalty," they wrote.

Instead of another sentencing phase, prosecutors and defense attorneys could agree to life in prison for Tsarnaev, avoiding another high-profile, weeks-long session in front of a new jury. Tsarnaev's attorneys admitted his guilt at the start of the trial in 2015, and sought a plea deal before going to trial....

Among the factors at play in what happens next is a new U.S. Attorney, Andrew Lelling, who replaced Carmen Ortiz, the U.S. Attorney who oversaw the Tsarnaev trial. Lelling on Friday said his office was reviewing the decision. Tsarnaev's federal public defenders said in a statement they were grateful for the court's straightforward and fair decision....

Tsarnaev is now 27 and remains at the federal supermax prison in Florence, Colorado. Thompson noted twice in her decision that the court's ruling does not mean Tsarnaev will ever be released from prison. "Make no mistake: Dzhokhar will spend his remaining days locked up in prison, with the only matter remaining being whether he will die by execution," she wrote. With another trial, however, he will be back in a Massachusetts courtroom.

The full opinion in this case is available at this link, and I welcome help from readers to identify the good, the bad and the ugly of this notable and very lengthy ruling.  I am especially interested in speculation about whether the feds will seek review with the full First Circuit or SCOTUS.  If they do, it could be years before we even know if there will be a need for a retrial.

July 31, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Big new ACLU and HRW report details "How Probation and Parole Feed Mass Incarceration in the United States"

The quoted portion of the title of this post is part of the title of this huge new report by Human Rights Watch and the American Civil Liberties Union fully titled "Revoked: How Probation and Parole Feed Mass Incarceration in the United States." This important 200+ page report includes these passages in its "summary":

Probation, parole, and other forms of supervision are marketed as alternatives to incarceration in the United States. Supervision, it is claimed, will keep people out of prison and help them get back on their feet.

Throughout the past 50 years, the use of probation (a sentence often imposed just after conviction) and parole (served after incarceration) has soared alongside jail and prison populations. As of 2016, the last year for which supervision data is available, 2.2 million people were incarcerated in United States jails and prisons, but more than twice as many, 4.5 million people — or one in every 55 — were under supervision.  Supervision rates vary vastly by state, from one in every 168 people in New Hampshire, to one in every 18 in Georgia.

Over the past several decades,arbitrary and overly harsh supervision regimes have led people back into US jails and prisons — feeding mass incarceration.  According to the Bureau of Justice Statistics (BJS), in the late 1970s, 16 percent of US state and federal prison admissions stemmed from violations of parole and some types of probation.  This number climbed to a high of 36 percent in 2008, and, in 2018, the last year for which data is available, was 28 percent.  A different set of data for the previous year from the Council of State Governments, which includes all types of probation violations — but is limited to state prison populations — shows that 45 percent of all US state prison admissions stemmed from probation and parole violations.  These figures do not include people locked up for supervision violations in jails, for which there is little nationwide data.  Black and brown people are both disproportionately subjected to supervision and incarcerated for violations.

This report documents how and why supervision winds up landing many people in jail and prison — feeding mass incarceration rather than curtailing it.  The extent of the problem varies among states, and in recent years multiple jurisdictions have enacted reforms to limit incarceration for supervision violations.  This report focuses on three states where our initial research indicated that — despite some reforms — the issue remains particularly acute: Georgia, Pennsylvania, and Wisconsin.

Drawing on data provided by or obtained from these states, presented here for the first time, and interviews with 164 people incarcerated for supervision violations, family members, government officials, practitioners, advocates, and experts, we document the tripwires in these states leading to incarceration.  These include burdensome conditions imposed without providing resources; violations for minor slip-ups; lengthy incarceration while alleged violations are adjudicated; flawed procedures; and disproportionately harsh sentences for violations.  The report shows that, nationwide,most people locked up for supervision violations were not convicted of new offenses — rather, they were incarcerated for breaking the rules of their supervision, such as for using drugs or alcohol, failing to report address changes, or not following the rules of supervision-mandated programs.  Of those who were incarcerated for new offenses, in our focus states, many were for conduct like possessing drugs; public order offenses such as disorderly conduct or resisting arrest; misdemeanor assaultive conduct; or shoplifting....

The root causes of these violations, the report documents, are often a lack of resources and services, unmet health needs, and racial bias.The report also draws attention to marked racial disparities in who is subjected to supervision and how authorities enforce it. In practice, supervision in many parts of the US has become a system to control and warehouse people who are struggling with an array of economic and health-related challenges, without offering meaningful solutions to those underlying problems.

July 31, 2020 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Thursday, July 30, 2020

US Department of Justice sets another execution date for last week of August

In this recent 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 three federal executions earlier this month thanks to SCOTUS lifting lower court stays, it would now seem that AG Barr is likely to be able to complete how ever many executions he decides to set.

Yesterday, via this press release, we learned that AG Barr wants to see at least one more execution in 2020.  This release, titled  "Execution Rescheduled for Federal Inmate Convicted of Brutally Murdering a Grandmother and her Nine-Year-Old Granddaughter" states:

Attorney General William P. Barr today directed the Federal Bureau of Prisons to reschedule the execution of Lezmond Mitchell, a federal death-row inmate who was convicted more than 17 years ago of the brutal murders of a grandmother and her nine-year-old granddaughter.  The execution, initially scheduled for last December, is now scheduled to occur on August 26, 2020, at the U.S. Penitentiary in Terre Haute, Indiana.

In October 2001, Mitchell murdered Alyce Slim, a 63-year-old grandmother, and her nine-year-old granddaughter as part of a carjacking in Arizona.  After getting a ride from Slim in her pickup truck, Mitchell and an accomplice stabbed her 33 times and threw her body into the backseat beside her granddaughter.  Mitchell then drove the truck 30-40 miles into the mountains, ordered the girl “to lay down and die,” slit her throat twice, and crushed her head with rocks. Mitchell and his accomplice proceeded to sever the heads and hands of the victims’ bodies and burn their clothes. Mitchell later confessed to the murders.  In May 2003, a jury in the U.S. District Court for the District of Arizona found him guilty of numerous federal crimes — including first-degree murder, felony murder, and carjacking resulting in death — and he was sentenced to death.  His convictions and sentence were affirmed on appeal, and his claims for collateral relief were denied by every court that considered them.

Mitchell’s execution was initially scheduled for December 2019, but the U.S. Court of Appeals for the Ninth Circuit entered a stay of execution while it resolved an additional appeal by Mitchell.  The court of appeals unanimously rejected Mitchell’s claim in April 2020 and denied his request for full-court rehearing earlier this month. When the Ninth Circuit stay formally concludes, no legal impediments will bar the execution, and it can occur without further delay.

This Arizona Republic article provides more details on Mitchell's crime and notes that he is the only Native American on federal death row.

Recent prior related posts:

July 30, 2020 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Fascinating Oklahoma initiative seeking to block non-violent prior convictions from enhancing statutory range of punishment qualifies for ballot

The COVID pandemic has derailed various ballot initiatives in various jurisdictions, but I am very pleased to see this news about the success of one criminal justice reform effort in at least making it to the ballot in Oklahoma.  Here are the details and some background:

The Oklahoma Supreme Court ruled Wednesday that enough voter signatures were collected to put a question regarding sentence enhancements for nonviolent offenders on the ballot on November 3.

More than 248,000 Oklahomans signed an initiative petition to get State Question 805 on the ballot.

Sentence enhancements allow courts to widen the range of years they can sentence a person to prison if that person has been convicted of another felony in the past.  The state question will ask voters to take that power away from courts when they’re sentencing people who have never been convicted of a violent felony.

A recent analysis from the Oklahoma Council for Public Affairs suggests ending enhancements for nonviolent offenders could cut the state’s prison population more than eight percent in 10 years and save the state up to $186 million.

The Oklahoma Department of Corrections questions some of the study’s findings.

A 2017 report from a task force established by former Governor Mary Fallin found that sentence enhancements were a large contributor to Oklahoma’s disproportionately high prison population.

Because I am not an expert on Oklahoma's current politics around sentencing reforms, I do not have a keen sense of whether this initiative has a real chance of passage.  But I do sense this initiative could and should engender an important national conversation about often out-sized impact of (even minor) criminal history at sentencing.  And in light of this OCPA report stressing the fiscal savings of this reform, it will be quite interesting to see how debates over public safety and state spending play out in a very red state circa fall 2020.  The OCPA report has this summary and concluding thoughts providing its accounting of what State Question 805 might achieve:

Oklahoma criminal statutes typically provide a sentencing range for each offense. A separate law allows even longer sentences—sometimes including life in prison—for persons with prior felony convictions. People convicted of non-violent property and drug offenses are the most likely to receive enhanced penalties under this law and also receive the harshest sentence increases.

State Question 805 would limit this sentence enhancement to crimes that the legislature considers violent.  This should reduce Oklahoma’s prison population by 8.5% over the next 10 years. That would reduce state expenses between $45 million and $186 million, with expected savings of at least $142 million. Taxpayer savings of up to $27 million per year would continue indefinitely into the future.  These funds could be directed to substance abuse and mental health services, victim’s services, reentry programs, or other public safety priorities....

With all of these changes, however, SQ 805 would still only reduce Oklahoma to the fourth-most incarcerated state in the nation.  Rather than the radical reductions opponents claim, this is a common-sense, limited adjustment to drug and property sentence lengths that will make Oklahoma’s failing criminal justice system more efficient and more fair.

Prior related post:

July 30, 2020 in Offender Characteristics, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Wednesday, July 29, 2020

Council on Criminal Justice launches "National Commission on COVID-19 and Criminal Justice"

Half-reverseThe Council on Criminal Justice (CCJ) — which is a favorite new organization in part because they asked me to take a close look at the 1994 Crime Bill's sentencing provisions and because they recently produced a great report urging criminal justice reforms — announced via this press release yesterday that they are launching an important and impressive new commission.  Here are the details:

The Council on Criminal Justice (CCJ) today launched a national commission to assess the impacts of COVID-19 on the criminal justice system, develop strategies to limit outbreaks, and produce a priority agenda of systemic policy changes to better balance public health and public safety.

Led by former U.S. Attorneys General Alberto Gonzales and Loretta Lynch, the National Commission on COVID-19 and Criminal Justice will:

  • Evaluate the pandemic’s impact on the four major sectors of the justice system (law enforcement, courts, corrections, and community programs);
  • Identify the most effective ways to minimize the spread of COVID-19 and the impact of future pandemics on the proper functioning of the justice system, and on the people who work in and are served by it; and
  • Establish a priority agenda of policies and practices that should change, or remain changed, based on what the pandemic and response have revealed about the system’s fairness and effectiveness, particularly for communities of color.

Given the serious health and safety risks created by the novel coronavirus, the Commission intends to work quickly, producing multiple interim reports before issuing final recommendations by the end of 2020.  The Commission also welcomes and will seek input from a wide variety of outside experts and stakeholders.  To submit written testimony, please visit the Commission’s website here [and here].  Opportunities to give oral testimony will be provided at later date.

“Our response to the pandemic will shape society and the justice system for generations. It’s critical that we learn from this crisis and make the right choices as we move ahead,”said Commission Co-Chair Gonzales, who served as Attorney General under President George W. Bush. “I look forward to working with Gen. Lynch and my other Commission colleagues to develop solutions that can make a difference immediately and well into the future.”

“Our nation’s criminal justice system has not been exempt from the devastating impact of COVID-19, with longstanding issues and concerns rising to the fore,” said Commission Co-Chair Lynch, who served as Attorney General under President Barack Obama. “Now, more than ever, we need solutions anchored in facts, science, sound judgment, and trusted experience, and the widely respected members of this Commission are ideally qualified to produce them.”

The Commission’s 14 members represent a diverse range of perspectives and experience.  Commissioners include current and former justice system leaders, elected officials, advocates, a leading incarceration researcher, a directly impacted individual, and a top public health specialist....

At its opening meeting today, the Commission was presented with the first in a series of reports presenting new research on COVID-19 and criminal justice.  The study by Richard Rosenfeld and Ernesto Lopez of the University of Missouri-St. Louis [available here], examined crime trends from 27 cities leading up to the pandemic and through June. It found that:

  • Property and drug crime rates fell significantly, coinciding with stay-at-home mandates and business closings.  Residential burglary dropped by 20% between February and June 2020. Larceny and drug offenses decreased by 17% and 57%, respectively, between March and June 2020.  These declines reflect quarantines (residential burglary), business closings (larceny), and reduced police and street activity (drug offenses).
  • One exception to the drop in property crime was commercial burglary, which spiked by 200% for a single week beginning in late May.  The spike is likely associated with the property damage and looting at the start of nationwide protests following the killing of George Floyd.
  • Rates of violent crime showed little change early in the pandemic but began to increase significantly in late May.  Homicides (37%) and aggravated assaults (35%) rose significantly in late May and June.  The increases could be tied to diminished police legitimacy in the wake of protests after Floyd’s killing.
  • Robbery rose significantly — by 27% — between March and June 2020.
  • Domestic violence also rose, but the increase was not significantly greater than in previous years.  In addition, the finding was based on data from only 13 of the cities studied, and thus requires further examination.

“The impacts of COVID-19 on the criminal justice system require rapid but rigorous analysis by a set of seasoned leaders and community stakeholders who understand the significance of this moment for the future well-being of our nation,”said Commission Director Thomas Abt, a CCJ senior fellow who served as Deputy Director of Public Safety for New York State and as chief of staff to the U.S. Department of Justice Office of Justice Programs.“It’s essential that we provide justice system leaders wrestling with COVID-19’s impacts with a roadmap based on evidence, data, and the wisdom of top experts. No organization is better positioned than CCJ to lead this vital effort.”

UPDATE: Paul Cassell has a new lengthy post here at The Volokh Conspiracy under the title "What Explains Why Homicides Are Increasing Significantly Across the Country Since Late May?".  This post takes a deep dive into this new CCJ report, and I recommend the post in full for its effort to fully understand and account for developing crime data.  Here is a paragraph from the latter part of the post:

Researchers should continue to investigate why homicides have been spiking in Chicago and other major cities across the country. If the answer is that de-policing is linked to rising gun violence (as some earlier studies would suggest), further limiting police efforts to aggressively deter gun crimes will tragically lead to more shootings and more homicides. And the victims of those crimes will likely come disproportionately from African-American communities—communities that, in some instances, may want more aggressive police efforts to combat gun crimes.

July 29, 2020 in Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Tuesday, July 28, 2020

Notable criminal justice reform discussion in draft 2020 Democratic Party Platform

As reported in this NPR piece, "Democrats met remotely Monday afternoon to approve a lengthy policy platform that seeks to balance the interests of the Democratic Party's more moderate and liberal factions."  Here is a bit more about the meeting and its product:

The virtual meeting came three weeks ahead of what will be one of the strangest party conventions in U.S. history: No delegates and few Democratic dignitaries will travel to Milwaukee to nominate former Vice President Joe Biden to be the party's standard-bearer. Instead, the convention will be held mostly remotely, with only Biden and a few other speakers appearing from Milwaukee.

The draft platform, released last week, draws heavily from a report issued this month by joint task forces organized by Biden and his onetime campaign rival, Vermont Sen. Bernie Sanders. It tries to bridge the gap between Sanders' progressive politics and Biden's more moderate approach to governing.

The criminal justice discussion and recommendations, which appear at pp. 32 to 35 of this 80-page draft DNC platform, includes a number of reform proposals that track ideas and language emerging from the 110-page Biden-Sanders Unity Task Force recommendations discussed here.  Here are some sections that should be of special interest to sentencing fans:

Democrats know we can end the era of mass incarceration and dramatically reduce the number of Americans held in jails and prisons while continuing to reduce crime rates, which have fallen steadily from their peak nearly three decades ago....

A growing number of states have recognized it is unjust — and unjustifiable — to punish children and teenagers as harshly as adults. We believe that if you aren’t old enough to drink, you aren’t old enough to be sentenced to life without parole. The federal government will incentivize states to stop incarcerating kids, and develop community-based alternatives to prison and detention centers for youth and invest in after-school programs, community centers, and summer jobs to provide opportunities for young people at risk....

It is past time to end the failed “War on Drugs,” which has imprisoned millions of Americans — disproportionately people of color — and hasn’t been effective in reducing drug use. Democrats support policies that will reorient our public safety approach toward prevention, and away from over-policing — including by making evidence-based investments in jobs, housing, education, and the arts that will make our nation fairer, freer, and more prosperous....

Substance use disorders are diseases, not crimes.  Democrats believe no one should be in prison solely because they use drugs.  Democrats will decriminalize marijuana use and reschedule it through executive action on the federal level.  We will support legalization of medical marijuana, and believe states should be able to make their own decisions about recreational use.  The Justice Department should not launch federal prosecutions of conduct that is legal at the state level.  All past criminal convictions for cannabis use should be automatically expunged.  And rather than involving the criminal justice system, Democrats support increased use of drug courts, harm reduction interventions, and treatment diversion programs for those struggling with substance use disorders....

Sentencing decisions should be based on the facts of each case, including the severity of the offense and individuals’ circumstances. Democrats support allowing judges to determine appropriate sentences, which is why we will fight to repeal federal mandatory minimums, incentivize states to do the same, and make all sentencing reductions retroactive so judges can reconsider past cases where their hands were tied.  We believe it is long past time to end the federal sentencing disparity between crack and powdered cocaine, which has contributed to the disproportionate imprisonment of people of color.  And Democrats continue to support abolishing the death penalty....

Democrats are proud that the Obama-Biden Administration commuted the sentences of more than 1,700 people serving unjust sentences following thorough review of their individual cases, and we support the continued use of the President’s clemency powers to secure the release of those serving unduly long sentences.  We denounce President Trump’s inappropriate use of clemency to help his friends and political cronies avoid justice.  We also support establishing an independent clemency board to ensure an appropriate, effective process for using clemency, especially to address systemic racism and other priorities.

Democrats support ending the use of private prisons and private detention centers, and will take steps to eliminate profiteering from diversion programs, commercial bail, electronic monitoring, prison commissaries, and reentry and treatment programs.  Democrats believe prisoners should have a meaningful opportunity to challenge wrongful convictions and unconstitutional conditions in prisons. We also believe that too many of our jails and prisons subject people to inhumane treatment, and will work to end practices like solitary confinement for adults and juveniles and ban the use of restraints on pregnant federal inmates.  Incarcerated people must not be denied access to vital medical care or unnecessarily exposed to disease, as they have been during the COVID-19 pandemic.  And Democrats will pursue a holistic approach to rehabilitation, increasing support for programs that provide educational opportunities, including pursuing college degrees, for those in the criminal justice system, both in prison and upon release.

Democrats believe in redemption.  We must deepen our commitment to helping those who have served their time re-enter society, earn a good living, and participate in our democracy as the full citizens they are.  We will aim to ensure access to transitional housing for returning citizens, support expanded access to mental health and substance use treatment, and will stop the practice of reincarcerating people for technical violations of probation or parole. Democrats support federal and state efforts to “ban the box” and will make it easier for returning citizens to access work opportunities through the Job Corps.  The formerly incarcerated should not be blocked from exercising their voting rights or accessing public services, including Pell Grants and nutrition assistance, available to other free citizens of the United States.  Continuing to punish a person after they have rejoined the community is both cruel and counterproductive.

There are lots of consequential (and politically and practically challenging) reforms being proposed here, ranging from pledging to try to do away with the death penalty and all mandatory minimum sentencing provisions to significant marijuana reforms to the creation of a clemency board to making "all sentencing reductions retroactive."  If the Democrats could achieve even a portion of what's called for in this document in the coming years, it would make for a truly historic period in federal criminal justice reform.

And yet, though I like a lot of what I see here, I am still sad some of the most interesting aspects of the Biden-Sanders Unity Task Force recommendations being left out.  Specifically, that document called, inter alia, for "issu[ing] new federal guidelines that advise prosecutors not to overcharge cases in order to coerce plea deals, or to pursue harsher sentences in order to penalize citizens for exercising their right to a jury trial"; for "encourag[ing] states to invest tax revenue from legal marijuana industries to repair damage to Black and brown communities hit hardest by incarceration"; for "task[ing] the U.S. Sentencing Commission with conducting a comprehensive review of existing sentencing guidelines and statutory sentencing ranges, with the goal of generating legislative recommendations, promulgating new guidelines, and issuing formal guidance to reduce unreasonably long sentences and promote rehabilitation"; for "creat[ing] 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." 

A number of progressives were concerned that the Biden-Sanders Unity Task Force recommendations were too moderate on a number of matters, and it seems that this draft 2020 Democratic Party Platform is reining in the reform vision and ambition still further at least in the criminal justice arena.  That said, both the language and the proposals of this document are far more far-reaching and reform-minded than any comparable document in recent decades.  Though not as bold as some might hope, the fundamental boldness of this draft platform should not be underappreciated.

Prior related post:

July 28, 2020 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

New poll highlights how quickly many have rising concerns about rising crime

Watching live television these days in central Ohio means seeing lots of campaign ads, and those now running most often are the Trump campaign's ads claiming crime will surge if Joe Biden were elected.  Seeing all these ads (and noticing that we no longer hear Prez Trump going after Biden for his support of the tough 1994 Crime Bill), I keep thinking the Trump campaign must have some internal polls indicating that crime and fear messages will play well with many voters across the political spectrum. 

Now, via this Hill piece headlined "Poll: Majority say they are concerned about rising crime in US cities," I see there is a public poll highlighting how many are really concerned about rising crime.  Here are excerpts:

A majority of Americans say they are concerned about rising crime in U.S. cities, according to a new Harvard CAPS/Harris poll released exclusively to The Hill on Monday. Seventy-seven percent of respondents say they are concerned that crime is rising in the nation’s cities, while 46 percent of respondents said they were concerned about rising crime in their own communities.

"At the same time they see an increase of violence and crime and are concerned that prosecutors are not prosecuting the crimes — they blame the protests and the high unemployment when asked what is responsible for the spike in violence," said Harvard CAPS/Harris polling director Mark Penn. "They also single out social media for being used to coordinate violence and in their view not doing much to curb it."

A New York Times analysis published earlier this month showed that overall crime down is done 5.3 percent in 25 large U.S. cities in relation to last year.  Violent crime was down 2 percent, according to the findings. However, murder in the same 25 cities is up 16.1 percent compared to 2019, according to the Times.  New York's homicide rate for the first half of 2020 is up 23 percent over 2019, according to the city's police department.

New York police reported 205 citywide shooting incidents in June 2020, compared to 89 in June 2019, marking a 130.3 percent increase.  Burglary in the city also increased, with 1,783 incidents reported in June 2020 compared to 817 in June 2019. In Chicago, homicides rose 39 percent between the last week of June and the first week of July of this year, according to the city's police department.

The development come as calls to defund police departments amid nationwide protests over racial injustice grow louder. The Trump administration, in turn, has touted a staunch "law and order" message.  President Trump announced last week that he would send federal law enforcement officers into Chicago and Albuquerque, N.M., as part of his crackdown on what he has called an unchecked surge of violence in Democratic-run cities....

The Harvard CAPS/Harris Poll online survey of 1,932 registered voters was conducted on July 21-23.  It is a collaboration of the Center for American Political Studies at Harvard University and The Harris Poll.  The Hill will be working with Harvard CAPS/Harris Poll throughout 2020. Full poll results will be posted online later this week.

Notably, this prepared testimony of Attorney General William Barr for today's scheduled House Judiciary Committee hearing also makes such of rising crime and the need for "law and order."  This polling confirms my suspicion that we will be hearing a lot more on these topics in the next three months as a big election approaches. 

July 28, 2020 in National and State Crime Data, Who Sentences | Permalink | Comments (0)

At resentencing, Senator Rand Paul's attacker gets additional 13 months (eight to be served in federal prison, six in home confinement)

This local article, headline "KY man who tackled U.S. Sen. Rand Paul sentenced to another 13 months confinement," provides some details from a high-profile resentencing that took place yesterday and included a number of interesting elements:

The neighbor who lost his temper and attacked Republican U.S. Sen. Rand Paul in 2017, breaking six of his ribs, has been sentenced to an additional 13 months confinement.  A federal judge initially sentenced Rene Boucher to 30 days in jail for the November 2017 attack, along with 100 hours of community service and a $10,000 fine.

During a video hearing Monday, U.S. District Judge Matthew F. Leitman handed down the new sentence against Boucher — eight months in prison and six months on home confinement.  However, Leitman gave Boucher credit for the 30 days he already served, so he will have seven more months behind bars.

Prosecutors had appealed the initial sentence for Boucher, arguing it was unreasonably light, and won the right to try to get a longer sentence.  That led to Monday’s hearing.  The new sentence for Boucher still wasn’t as long as the government wanted.  Assistant U.S. Attorney Brad Shepard objected to the sentence, which could lead to yet another appeal by the government for stiffer sentence for Boucher.

The attack made national news because of Paul’s position, but prosecutors have acknowledged it had nothing to do with politics.  Rather, Boucher, who lived next door to Paul in a gated community in Bowling Green, attacked Paul because he got angry over Paul stacking limbs and other yard waste near their shared property line, according to the court record....

Police first charged Boucher with misdemeanor assault in state court, but the federal government stepped in and prosecuted him under a law barring assaults on members of Congress.  Under advisory guidelines, Boucher faced a potential sentence of 21 to 27 months. Federal judges can impost sentences below those guidelines.

In handing down a lower sentence, U.S. District Judge Marianne O. Battani cited Boucher’s military service, his involvement in his church and her belief that the attack was out of character for Boucher.  However, the U.S. 6th Circuit Court of Appeals ruled that Battani didn’t give sufficient weight to the seriousness of Paul’s injuries or the need for deterrence, and didn’t sufficiently address the issue of the big difference in Boucher’s sentence and others involving federal assault cases.

Shepard renewed a call for a 21-month sentence for Boucher because of the severity of Paul’s injuries.  The punishment also should to be tough enough deter similar attacks, Shepard said.  “The court I think needs to send the message . . . that we cannot continue as a society to resort to violence,” Shepard said.

Paul and his wife, Kelly, submitted written statements about the attack the first time Boucher was sentenced, but spoke in person during the video hearing Monday.  Paul said he’d never had cross words with Boucher and so had no idea he was unhappy before Boucher blindsided him.  Paul described the intense pain and his struggles to breathe after the attack, as well as the history of physical problems since, including bouts with pneumonia, night sweats and fever; coughing up blood; surgery to remove part of his scarred lung; and still more surgery to drain infected fluid.  Paul said his lung capacity will likely be reduced the rest of his life, and he has chronic pain.  “I don’t know what a night without pain is like, or a day without pain,” Paul said....

Boucher’s attorney, Matthew J. Baker, said Boucher is “profoundly sorry” for the attack, but argued against any additional time for Boucher, a physician.  Baker said Boucher’s initial sentence was appropriate, and that he had faced additional punishment by way of a judgment of more than $600,000 in a state civil lawsuit Paul filed against him over the attack.  That judgment included $375,000 in punitive damages, which by definition are to punish a defendant....

Lietman said it was heartbreaking to hear Paul and his wife describe the fallout from the attack. But the judge said he was choosing a sentence below the guideline range for several reasons, including Boucher’s long record of work with his church, his eight years as a U.S. Army doctor, the fact that the attack was out of character, and the damage to his reputation from the crime.  Leitman said $375,000 punitive damage award in state court also figured into his decision. “That’s a lot of punishment,” he said.

Leitman did not set a date for Boucher to begin the sentence.

I would be surprised if the feds go through with another appeal, and I would be even more surprised if they would prevail on a second appeal.  The Sixth Circuit panel opinion reversing the initial 30-day sentence made much of the original "dramatic downward variance" from a guideline minimum of 21 months, and Judge Lietman seems to have addressed some of the panel's chief concerns when imposing a longer sentence closer to the bottom of the advisory range.  And Judge Lietman's reliance on the civil punishment from the sizable punitive damage award would seem to be a distinctive additional factor supporting the reasonableness of a sentence below the guideline range.

Prior related posts:

July 28, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, July 27, 2020

Deputy AG defends federal executions that "operated entirely within the law"

Deputy Attorney General Jeffrey Rosen took to the pages of the New York Times to publish this piece defending the Justice Department's successful effort to move forward with three federal executions earlier this month.  Here are excerpts:

The death penalty is a difficult issue for many Americans on moral, religious and policy grounds.  But as a legal issue, it is straightforward.  The United States Constitution expressly contemplates “capital” crimes, and Congress has authorized the death penalty for serious federal offenses since President George Washington signed the Crimes Act of 1790.  The American people have repeatedly ratified that decision, including through the Federal Death Penalty Act of 1994 signed by President Bill Clinton, the federal execution of Timothy McVeigh under President George W. Bush and the decision by President Barack Obama’s Justice Department to seek the death penalty against the Boston Marathon bomber and Dylann Roof.

The recent executions reflect that consensus, as the Justice Department has an obligation to implement the law.  The decision to seek the death penalty against Mr. Lee was made by Attorney General Janet Reno (who said she personally opposed the death penalty but was bound by the law) and reaffirmed by then-Deputy Attorney General Eric Holder.  Mr. Purkey was prosecuted during the George W. Bush administration, and his conviction and sentence were vigorously defended throughout the Obama administration. The former judge who imposed the death sentence on Mr. Honken, Mark Bennett, said that while he generally opposed the death penalty, he would not lose any sleep over Mr. Honken’s execution.

In a New York Times op-ed published on July 17, two of Mr. Lee’s lawyers criticized the execution of their client, which they contend was carried out in a “shameful rush.”  That objection overlooks that Mr. Lee was sentenced more than 20 years ago, and his appeals and other permissible challenges failed, up to and including the day of his execution.  Mr. Lee’s lawyers seem to endorse a system of endless delays that prevent a death sentence from ever becoming real.  But his execution date was announced almost a year ago, and was initially set for last December. It was delayed when his lawyers obtained six more months of review by unsuccessfully challenging the procedures used to carry out his lethal injection....

[I]f the United States is going to allow capital punishment, a white-supremacist triple murderer would seem the textbook example of a justified case.  And if death sentences are going to be imposed, they cannot just be hypothetical; they eventually have to be carried out, or the punishment will lose its deterrent and retributive effects.

Rather than forthrightly opposing the death penalty and attempting to change the law through democratic means, however, Mr. Lee’s lawyers and others have chosen the legal and public-relations equivalent of guerrilla war.  They sought to obstruct by any means the administration of sentences that Congress permitted, juries supported and the Supreme Court approved.  And when those tactics failed, they accused the Justice Department of “a grave threat to the rule of law,” even though it operated entirely within the law enacted by Congress and approved by the Supreme Court.  The American people can decide for themselves which aspects of that process should be considered “shameful.”

A few of many recent prior related posts:

July 27, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Looking for broader relief and reforms for elderly prisoners in wake of Roger Stone clemency

In recent posts here and here, I have stressed the fact that Prez Trump's explained his decision to commute Roger Stone 's prison sentence in part by stressing that he "is a 67-year-old man, with numerous medical conditions" who "would be put at serious medical risk in prison" and "has already suffered greatly."  Those sound sentencing considerations could and should help justify releasing from prison many more (lower-profile) elderly offenders these days, and the latest issue of the Federal Sentencing Reporter highlights the humanitarian and fiscal reasons why the aging of our prison populations was a pressing concern even well before anyone had heard of COVID-19.

I note these posts and points again because of this effective new Law360 piece headlined "After Stone Clemency, Activists Rally For Elder Parole."  I recommend the piece in full, and here are excerpts:

While Democrats and even some Republicans have questioned the ethics of Trump's decision [to commute Stone's prison term], others have highlighted how the same logic should be applied to thousands of other aging people, many of whom have actually served years and even decades of their sentences.... Roughly 288,800 people over age 50 currently live in state and federal prisons, and an estimated 70% of them have a current chronic illness or serious medical condition, according to the Alliance for Safety and Justice.

Older people make up the fastest-growing population within U.S. state and federal prisons, which have become hot spots for the viral contagion that is increasingly deadly the older its host.  A recent study found that people in prison are 550% more likely to get COVID-19 and 300% more likely to die from it.  So far, at least 625 imprisoned people have died from the virus.

Criminal justice reformers aiming to decrease the country's world-leading incarceration rate have advocated for years that aging people should be considered for early release or parole, considering the often inadequate health care available in correctional facilities as well as the fact that, generally speaking, the older you are, the less likely you are to commit another crime. Older people also cost more, per capita, to incarcerate.

Those calls have been amplified in the wake of widespread protests against racial injustice in the legal system. Last week, hundreds of New Yorkers marched in Manhattan to demand the state Legislature pass a package of bills, including one that would make people who've served at least 15 years eligible for parole at age 55. A related bill would grant parole to anyone eligible unless there is "a current and unreasonable risk" the person would break laws if released....

One of the easiest methods of releasing people, including the elderly, from dangerous prisons is the executive clemency power, which some governors have wielded more widely during the pandemic.  Illinois Gov. J.B. Pritzker, for example, has commuted more than 20 state prisoners' sentences since March.  In his first year in office, he commuted just three sentences.  In April, New Mexico Gov. Michelle Grisham commuted the sentences of 46 people convicted for low-level crimes who were within 30 days of being released; Oklahoma Gov. Kevin Stitt commuted 450 sentences that same month.

But while some governors have been actively exercising clemency powers, Trump's commutation for Stone marked his first since declaring a pandemic.  Stone reportedly has asthma and a history of respiratory conditions that makes him vulnerable to COVID-19; in late June, he posted social media videos saying "incarceration at a facility with COVID-19 during a pandemic is a deep state death sentence."...

Instead of granting more people clemency, Trump's response to the threat COVID-19 poses to people in prison has come via U.S. Department of Justice policies.  In March, his administration instructed the Bureau of Prisons to release more people to home detention and to consider the medical risks of holding people in pretrial detention amid rising prison COVID-19 infection counts.  According to a BOP spokesperson, 6,997 people have been placed on home confinement in response to the COVID-19 pandemic — approximately 4% of the federal prison system's 158,838-person population.

Another method of release during the pandemic has been "compassionate release," a sentence reduction typically reserved for the terminally ill or severely medically compromised.  The 2018 First Step Act, Trump's signature criminal justice achievement, made it easier to seek such releases, but only about 150 people were able to take advantage over the first 14 months of the law.  During the pandemic, that number has more than quadrupled as incarcerated people, judges and even prosecutors have mobilized to decrease prison populations, but the grand total of 776 is still a fraction of of the BOP's 158,838-person population — 20% of which is people over age 51, four months into a deadly pandemic....

Judges, for their part, have "definitely been more willing to grant compassionate release due to COVID-19," according to Amy Povah, a formerly incarcerated activist who runs Can-Do Clemency. But she added that some judges are still denying release, even in cases where people are particularly at risk of infection. "We're extremely concerned about medically compromised people who cannot socially distance in prison," she said. "They don't have the proper personal protective equipment.  Most of them, from what I understand, do not have hand sanitizer.  A lot of them are improvising by cutting up T-shirts because there's not enough masks."... Povah, who is advocating for clemency for Riojas and dozens of others, said the Stone commutation was a signal that the president is aware of the plight aging people in prison face amid the pandemic. "It gives me hope," she said.

I am not as hopeful as Amy Povah that Prez Trump is giving much thought to the plight aging people in prison face amid the pandemic.  That said, though I continue to want to (foolishly?) imagine that Prez Trump might recall the adulation he received after his clemency grant to Alice Marie Johnson and then seek some positive press by granting clemency to, say, lifer marijuana offenders assembled at the Life for Pot website.  

Wanting to be hopeful, I think about the possibility that the new bill from Senators Durbin and Grassley, the COVID-19 Safer Detention Act, could get incorporated into the latest COVID response legislation working its way through Congress.  This bill would give both BOP and federal judges broader discretion to send elderly prisoners home earlier; this authority makes sense even without an on-going pandemic and is even more important and urgent now.

A few of many prior related posts:

July 27, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, July 26, 2020

A century after his birth, just a few choice quotes to celebrate Marvin Frankel, father of sentencing reform

81p9ffvBF7LA kind reader pointed out for me that exactly 100 years ago today, the late great Marvin Frankel was born.  Though he served in many roles through his career, I think of this historic figure as Judge Frankel because of his service on the US District Court and especially because he was a judge when he wrote his most famous book, Criminal Sentences: Law Without Order.  This book's criticisms of "lawless" sentencing practices played a huge role in the emergence of structured sentencing systems, and Judge Frankel has been frequently and widely described as the "father of sentencing reform."

Though there are many reasons not to love the form of certain reforms (like the federal sentencing guidelines) that Judge Frankel helped engender, there are no reasons not to love Criminal Sentences: Law Without Order.  The book is less than 125 pages, and seemingly every page is full of shrewd insights and rhetorical flourishes.  In addition to being among the most influential books of legal scholarship, Criminal Sentences: Law Without Order is simply a great (and still timely) read.  Though it is hard to put together a fitting tribute to Judge Frankel, it is easy to find quotes from his book to provide a flavor of his contributions a century after his birth. So, a taste:

at page 5: "[T]he almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the rule of law."

at pages 17-18: "Conditioned in the direction of authoritarianism by his daily life in court, long habituated as a lawyer to the stance of the aggressive contestant, and exercising sentencing powers frequently without practical limits, the trial judge is not discouraged from venting any tendencies toward righteous arrogance. The books and the reliable folklore are filled with the resulting horror stories — of fierce sentences and denunciatory attacks upon defendants."

at page 21: "[S]weeping penalty statutes allow sentences to be 'individualized' not so much in terms of defendants but mainly in terms of the wide spectrums of character, bias, neurosis, and daily vagary encountered among occupants of the trial bench."

at page 39: "The question “Why?” states a primitive and insistent human need. The small child, punished or deprived, demands an explanation. The existence of a rationale may not make the hurt pleasant, or even just. But the absence, or refusal, of reasons is a hallmark of injustice.... The despot is not bound by rules. He need not account for what he does. Criminal sentences, as our judges commonly pronounce them, are in these vital aspects tyrannical."

at page 103: "The arbitrary cruelties perpetrated daily under our existing sentencing practices are not easy to reconcile with the cardinal principles of our Constitution.  The largely unbridled powers of judges and prison officials stir questions under the clauses promising that life and liberty will not be denied except by 'due process of law.'  The crazy quilt of disparities — the wide differences in treatment of defendants whose situations and crimes look similar and whose divergent sentences are unaccounted for — stirs doubts as to whether the guarantee of the 'equal protections of the laws' is being fulfilled."  

Final paragraphs concluding with a call for the creation of a "Commission on Sentencing":

The uses of a commission, if one is created, will warrant volumes of debate and analysis.  For this moment and for this writer, the main thing is to plead for an instrumentality, whatever its name or detailed form, to marshal full-time wisdom and power against the ignorance and the barbarities that characterize sentencing for crimes today....

Lawyers and judges, tending to be human, are not likely to greet with rampant enthusiasm demands for change in their settled ways.... So to any reader who has come to this concluding paragraph — but perhaps somewhat especially to the lay reader — I would urge that you not close the topic along with the book.  The topic has to do with monstrous evils perpetrated daily for all of us, and with our implicit or express acquiescence.  The need for change is clear.  Our justly proud awareness that "we the people" have the power should carry with it a corollary sense of duty.  It is our duty to see that the force of the state, when it is brought to bear through the sentences of our courts, is exerted with the maximum we can muster of rational thought, humanity, and compassion.

July 26, 2020 in Federal Sentencing Guidelines, Recommended reading, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Saturday, July 25, 2020

Is consideration of gender a must or a no-no in risk assessment tools?

The question in the title of this post is prompted by this latest new article in the on-going terrific Law.com/Legaltech News series unpacking modern risk assessment tools.  The headline and full subheadline of the piece reveals why it prompts this question: "Constitutional Brawl Looms Over How Risk Assessment Tools Account for Gender: Researchers say that scoring men and women differently is essential to account for risk assessment tools’ inherent gender bias.  But it’s an open question whether these adjustments are violating state or constitutional law."  I recommend the piece in full, and here are excerpts:

While there’s been a lot of focus on how risk assessment tools treat different racial demographics, little attention has been paid to another issue that may be just as problematic: how gender factors into risk scores. Researchers say accounting for the differences in gender ensures that risk assessments are more accurate, but exactly how they do so may run into constitutional challenges.

Legaltech News found one gender-specific risk assessment tool currently implemented in at least two states: the Women’s Risk and Needs Assessment (WRNA), which like the the Ohio Risk Assessment System (ORAS), was created by the University of Cincinnati. Kansas uses the WRNA to assess parolees’ risk in a women’s prison in Topeka, while Montana deploys it for women on probation or parole throughout its Department of Corrections....

The reason WRNA is needed in the first place is because most risk assessment instruments are validated (i.e. created) on a population that is majority male, in large part due to current gender imbalance in the criminal justice system (i.e. more men than women commit crimes and become incarcerated).

Dr. Teresa May, department director of the Community Supervision & Corrections Department in Harris County, Texas, also notes that on a whole, men have higher recidivism risk than women. “What we know is when you look at gender, almost always—and in fact I don’t know of an exception—the average rearrest rate [for women] is always much lower than men.”  Without accounting for these differences, a risk assessment could end up scoring women as higher risk than they actually are....

There’s an ongoing debate over whether using  gender as a risk factor, or assigning different cutoff risk levels to both males and females, violates the 14th Amendment. “Basically the Supreme Court of the U.S. has pursued what’s called an anti-classification approach to the equal protection law, which prohibits explicit use of factors like gender and race in making decisions,” says Christopher Slobogin, professor of law at the Vanderbilt University Law School.  He adds, “It is permissible, constitutionally, to use race or gender if there is a compelling state interest in doing so. But generally speaking, the use of race and gender is unconstitutional to discriminate between groups.”

However, in Slobogin’s own opinion, he does not think the “Constitution is violated simply because a risk assessment arrives at different results for similarly situated men and women.” He argues that a tool that uses gender as a risk factor and one that has different cutoff scores for genders are functionally the same, adding in those adjustments makes the instruments more accurate.

But others see it differently. Sonja Starr, professor of law at the University of Michigan Law School, for example, recently told the Philadelphia Inquirer that “use of gender as a risk factor plainly violates the Constitution.” 

July 25, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Technocorrections, Who Sentences | Permalink | Comments (0)

Friday, July 24, 2020

Never-ending New Jersey drunk driving case highlights fundamental reason why sentencing is so dang hard

9889228-0-image-a-67_1550300070445I am fond of saying "sentencing is dang hard."  (A version of a speech I gave with this title appears in the February 2020 issue of the Federal Sentencing Reporter and also is available here via SSRN.)  An appellate ruling this  week in a high-profile New Jersey case has me recalling this point; this local press piece, headlined "Amy Locane will be sentenced for a fourth time on fatal 2010 DWI charge," provides part of the backstory (with a little emphasis added):

A state appellate court ruled Wednesday that actress Amy Locane, convicted in connection with a fatal drunken driving accident a decade ago in Montgomery, must be sentenced for a fourth time because the first three times were either illegal sentences or sentences imposed outside the state's criminal code.

In a 41-page decision, the appellate court ruled that the latest sentence in the case, handed down by Superior Court Judge Kevin Shanahan in February 2019, was "illogical" based on an "unauthorized sentencing theory" that weighed on what he called "the yin and yang" of the case's facts....

James Wronko, Locane's attorney, said he will ask the state Supreme Court to review the decision. "I don't know what society gains by putting the mother of two back in jail," Wronko said.

Shanahan sentenced Locane to five years in prison, but stayed the sentence because he did not consider her a flight risk. The Somerset County Prosecutor's Office argued the sentence should not be stayed and appealed the judge's decision.

Locane previously had been sentenced to three years in state prison on charges of vehicular homicide and assault by auto in connection with the death of Helene Seeman in the crash.  Her husband, Fred, was severely injured in the crash as the couple were turning into their driveway of their weekend home at 9 p.m. on June 27, 2010.  Locane is an actress who starred with Johnny Depp in “Cry-Baby” and was a featured actress on the TV series “Melrose Place.”...

The Somerset County Prosecutor's Office first appealed the the three-year sentence that was handed down by retired Superior Court Judge Robert Reed who presided over the trial.  Locane served 85 percent of that sentence at the Edna Mahan Correctional Facility for Women in Hunterdon County.  She also successfully completed the conditions of her parole a year ago, Wronko said.  "She's led an exemplary life since her release," Wronko said....

In handing down the five-year sentence, Shanahan said that imposing a higher sentence "would have been an exercise in bad judgment, just like all the others."  Shanahan also said that he was not bound by previous Appellate Court rulings in the case.

"Clearly, changes in (Locane's) personal circumstances warrant divergence," the Appellate Court wrote in the decision, "but it is rudimentary that a trial judge is bound by our prior decision. (Shanahan) ignored the prior findings, while seemingly giving them lip service."

So, in a sad drunk driving case involving a fatal result, New Jersey courts have now been trying and failing to figure out Amy Locane's "right" sentence for now a full decade.  In that time, the defendant has served out a three-year ("wrong") prison sentence (and also paid $1.5 million of a nearly $5 million civil settlement).  I can only speculate about how many (mostly taxpayer) resources have been expended in all these court proceedings trying to get to the "right" sentence, and I wonder whether the surviving victims are really eager to start another decade of wrangling over finding the "right" sentence.

Of course, I keep putting "right" in quotes when discussing this matter because there obviously is no clear right sentence in this case (or most cases).  Sentencing is so dang hard in part because it lacks a clear right/wrong metric no matter what sentencing philosophies one is inclined to adopt.  Moreover, this case especially spotlights the fundamental challenge balancing aggravating offense factors (especially a victim's death) with mitigating offender factors (addiction and lack of criminal history).  The latest appellate opinion (available here) showcases how sentencing judges here have generally focused on the offender, while the appellate judges have focused on the offense (at p. 36):

In this case, the focus has repeatedly shifted away from the crime defendant committed to her individual characteristics at the expense of imposing a just sentence reflective of her offense and the harm she caused.  That she was struggling with addiction did not authorize the court to close its eyes to the harm she inflicted on the victims, the victims' family, and the community.  That harm will never dissipate.  The loss of a loved one, and serious physical injury to another, can never be compensated.

Ironically, another round of resentencing strikes me as a fool's errand in part because I agree with this court's sentiment that the harm caused by Amy Locane "will never dissipate" and "can never be compensated."  Because there is no way the law through any form of punishment can make this kind of harm go away, I struggle to see what is likely to be achieved when the state uses more taxpayer resources to  try, yet again, to add still more years to Locane's sentence.

Notably, there is no mention in this latest appellate opinion of just what the victims of this now-long-ago offense might now want.  I hope for their sake that starting another decade of wrangling over Locane's sentence does not rub salt into their wounds.  I also wonder if some kind of restorative justice efforts have been tried or might now be started to enable the victims and the defendant here to get some measure of peace and resolution that the New Jersey courts have been unable so far to provide.

Prior related post:

July 24, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Thursday, July 23, 2020

Federal judge rules Michael Cohen must be released back into home confinement

As reported in this CNBC piece, a "federal judge on Thursday ordered the release from prison of President Donald Trump’s former lawyer and fixer Michael Cohen by Friday afternoon."  Here is why:

Judge Alvin Hellerstein found that Cohen was sent back to prison on July 10 in retaliation for failing to agree a day earlier to not to publish a book about Trump as one of multiple conditions for serving the remainder of his three-year prison term on home confinement.  Cohen had been furloughed from prison in late May due to concerns about the coronavirus pandemic.  Shortly before being taken into custody he had been posting on social media about his upcoming book, which is going to be critical of Trump.

“I’ve never seen such a clause, in 21 years in being a judge,” Hellerstein said at a Manhattan federal court hearing, where he questioned the condition that Cohen not publish a book while in home confinement.  “How can I take any other inference but that it was retaliatory? “the judge asked at the hearing, which was held in response to Cohen suing to win his re-release from prison.

During the hearing, the judge was highly skeptical to arguments by a federal prosecutor that Cohen was not locked up in retaliation for the book, or that the condition of not writing a book was not sought for a specific reason.  At one point, when another prosecutor tried to come to the aid of the prosecutor who was answering the judge’s questions, Hellerstein angrily cut him off, reminding him of the rule that only one lawyer argued for each side in a case.

Cohen, who has been in quarantine in the prison in Otisville, N.Y., since his arrival there, will be released by 2 p.m. after begin tested for the coronavirus, and will be driven back to his home on Manhattan’s Upper East Side by his son, Hellerstein said. After his release into home confinement, he will be subject to a number of restrictions on his movement and employment and contact with other people.  But the restriction sought by federal Probation officials that he not speak to reporters, post on social media, or publish a book, is likely to be largely gutted.

Cohen’s lawyer and a prosecutor will in coming days negotiate the issue of any restrictions on Cohen dealing with the media.  Hellerstein suggested it would be inappropriate for Cohen to host a press conference in his apartment with a large number of reporters to discus his book while at the same time still serving his criminal sentence....

Hellerstein noted that court filings by both prosecutors and Cohen’s lawyers agree on a key point: that Cohen and his lawyer, after taking issue with at least one of the conditions, about the book, were left in a room along at some time by a Probation officer, and then confronted by Bureau of Prison officials who arrived to take him into custody.  Hellerstein also repeatedly said that Probation officials had not given Cohen a warning that if he did not agree to all the conditions presented to him at a July 9 meeting with his lawyer that he would be sent back to prison.  “Mr. Cohen was never given a chance to say, ‘If this is it, I will sign,’ ” Hellerstein said.

Prior Michael Cohen posts:

July 23, 2020 in Celebrity sentencings, Impact of the coronavirus on criminal justice, Prisons and prisoners, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, July 22, 2020

A midsummer reminder of all persons that Prez Trump has granted clemency to during the COVID-19 pandemic

Drum-roll please....:

Roger Stone

Sadly, that one name amounts to the full list of persons to receive a clemency grant from Prez Trump during the period in which, as detailed on this BOP page, nearly 100 federal prisoners have died and nearly 10,000 have been infected by COVID-19. 

I am not really surprised that Prez Trump has entirely failed to deliver on his promise back in March to look at freeing elderly "totally nonviolent" offenders from federal prisons amid the  pandemic.  But I figure now is as good a time as any to highlight again that Prez Trump could and should, via just a stroke of a pen, bring clemency relief to the many, many federal prisoners who, like Roger Stone, are older, medically vulnerable and present no clear risk to public safety. 

Because Prez Trump seems now eager to do some things differently in response to his sagging poll numbers, perhaps he should consider focusing in this realm on something a lot more popular than he is.  Specifically, I am talking about marijuana, while imagining the positive press Prez Trump would likely garner by granting clemency to the lifer marijuana offenders assembled at the Life for Pot website.  Prez Trump seems to like the adulation he received after his clemency grant to Alice Marie Johnson two years ago, and I am suggesting he might really get some political juice if he granted clemency to a number of older marijuana offenders.  (Notably, a number of voters in a number of swing states like Arizona and Florida and Michigan seemingly care a lot about marijuana issues.)

I fear that Prez Trump is unlikely to improve his clemency record anytime soon.  But that will not keep me from using this setting to urge him to see the value in trying to do so.

Prior related posts:

July 22, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"How To Assess Whether Your District Attorney Is A Bona Fide Progressive Prosecutor"

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

This article serves as a surgeon general’s warning that not all progressive prosecutors are alike and provides a “weighted constellation” framework that advocates can use to assess which district attorneys deserve the progressive name. Although the justice system’s structural landmines inhibit district attorneys’ efforts to substitute law-and-order policies with more forward-thinking approaches, local prosecutors still wield enormous power; they can reduce incarceration and more equitably enforce the law.  Participants in local politics should elect and support district attorneys who effect authentically progressive policies.  Because not all seemingly progressive district attorneys are in fact pursuing meaningful criminal justice reform, this article aims to help advocates separate the bona fide progressives from those in sheep’s clothing. Those keen to assess their district attorney can use this article’s proposed analytical framework, which accounts for the totality of each district attorney’s circumstances but draws clear lines between progressive and non-progressive prosecution practices.

This article presents fourteen buckets of prosecutorial policies that further a more dignified and fair American justice system. Advocates should use these fourteen buckets to evaluate a district attorney and — depending on the history of the prosecutor’s office and the local justice system — assign weights to each of the metrics.  Advocates should then examine the district attorney’s performance for each metric, including whether the prosecutor falls outside the metric’s outer bounds, the distance between the prosecutor’s policies and the theoretically most progressive iteration of the metric, and the prosecutor’s policies compared with their peers’ policies.  To aid with the last analytical step, this article provides a comparative analysis of twenty-one prosecutors’ performance against a subset of seven of the metrics — the death penalty, bail reform, decarceration and the New Jim Crow, non-prosecution and diversion, wrongful convictions, police accountability, and prosecutorial accountability.

July 22, 2020 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Tuesday, July 21, 2020

"Open Risk Assessment"

The title of this post is the title of this recent paper authored by Brandon Garrett and Megan Stevenson. Here is its abstract:

As criminal justice actors increasingly seek to rely on more evidence-informed practices, including risk assessment instruments, they often lack adequate information about the evidence that informed the development of the practice or the tool.  Open science practices, including making scientific research and data accessible and public, have not typically been followed in the development of tools designed for law enforcement, judges, probation, and others.  This is in contrast to other government agencies, which often open their processes to public notice and comment.

Lack of transparency has become pressing in the area of risk assessment, as entire judicial systems have adopted some type of risk assessment scheme.  While the types of information used in a risk tool may be made public, often the underlying methods, validation data, and studies are not.  Nor are the assumptions behind how a level of risk gets categorized as “high” or “low.”  We discuss why those concerns are relevant and important to the new risk assessment tool now being used in federal prisons, as part of the First Step Act.  We conclude that a number of key assumptions and policy choices made in the design of that tool are not verifiable or are inadequately supported, including the choice of risk thresholds and the validation data itself.  Unfortunately, as a result, the federal risk assessment effort has not been the hoped-for model for open risk assessment.

July 21, 2020 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?

The question in the title of this post has been in my head in the wake of last week's three federal executions and the clear signal sent by five members of the Supreme Court that they will not allow lower courts to get in the way of the Attorney General's execution plans.  As highlighted in posts last week here and here, the Supreme Court by 5-4 votes vacated a series of lower court stays and injunctions to enable the Justice Department to complete the scheduled executions of Daniel Lewis Lee and Wesley Ira Purkey.  By the end of the week, the pro-execution momentum was so strong that the third person executed, Dustin Lee Honken, apparently did not even pursue any final legal claims up to the Supreme Court.

Recall that it was only a month ago that AG Barr ordered the scheduling of these execution dates for last week (as well as one more set for August 28 for Keith Dwayne Nelson).  This reality suggests to me that AG Barr could, at just about any time for just about any reason, order the scheduling of one or many executions and have them carried our within a month's time.  There are 59 condemned persons on federal death row (full list here via DPIC), and I suspect at least a couple dozen of these death row defendants have exhausted the standard appellate and post-conviction remedies so that no legal impediments would currently prevent their executions.  Consequently, it would seem their fates now lie squarely and only in the hands of AG Barr and will turn on how he now decides to exercise his discretion in the setting of execution dates.

In DOJ statements concerning the setting of executions dates (here and here), AG Barr has repeatedly stated that "we owe it to the victims and their families to carry forward the sentence imposed by our justice system."  If AG Barr really believes this, will he be actively trying to set more execution dates (perhaps many more) in the weeks and months ahead?  Notably, former Vice President Joe Biden is campaigning for Prez on a promise to "Eliminate the death penalty": "Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example."  If AG Barr really believes that justice calls for executing those now currently on federal death row, should he be seeking to complete as many executions as possible in 2020 just in case a new administration might not want to carry out these sentences in 2021? 

Recent prior related posts:

July 21, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Monday, July 20, 2020

"Forgotten by the Fair Sentencing Act and the First Step Act: Federal Methamphetamine Sentencing Reform"

The title of this post is the title of this new paper recently posted on SSRN and authored by Quincy Ferrill.  Here is its abstract:

This paper explores the issue of sentencing guidelines based on outdated premises and unfair treatment and the potential impacts of drug sentencing laws and enhancements not based on empirical data.  To address this problem, this paper proposes a bill, similar to the First Step Act, to both retroactively and prospectively lessen the effect of these capricious drug sentencing guidelines.

July 20, 2020 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (2)

Sunday, July 19, 2020

"American Roulette: The Social Logic of Death Penalty Sentencing Trials"

9780520344396The title of this post is the title of this recently published book authored by Sarah Beth Kaufman which now seem especially timely in light of the federal government's return to operating its machinery of death.  Here is the book description on the website of the publisher, University of California Press:

As the death penalty clings to life in many states and dies off in others, this first-of-its-kind ethnography takes readers inside capital trials across the United States.  Sarah Beth Kaufman draws on years of ethnographic and documentary research, including hundreds of hours of courtroom observation in seven states, interviews with participants, and analyses of newspaper coverage to reveal how the American justice system decides who deserves the most extreme punishment.  The “super due process” accorded capital sentencing by the United States Supreme Court is the system’s best attempt at individuated sentencing.  Resources not seen in most other parts of the criminal justice system, such as jurors and psychological experts, are required in capital trials, yet even these cannot create the conditions of morality or justice.  Kaufman demonstrates that capital trials ultimately depend on performance and politics, resulting in the enactment of deep biases and utter capriciousness.  American Roulette contends that the liberal, democratic ideals of criminal punishment cannot be enacted in the current criminal justice system, even under the most controlled circumstances.

The 15-page introduction to the text is available here, and here is an excerpt:

It would be sensible to assume that those who face capital punishment have committed the most atrocious murders and that their executions might serve as the strongest deterrent to others.  But these are not the criteria that determine who is “death-worthy” in the United States; ... Zacarias Moussaoui, who conspired to plan the 9/11 attacks, and Gary Ridgway, who was convicted of killing forty-nine women, for example, were both sentenced to life imprisonment.  Corinio Pruitt and Corey Wimbley each committed single robbery-murders and were sentenced to death by execution.  In the twenty-first century United States, between 14,000 and 17,000 homicides are committed each year, yet fewer than a hundred result in a sentence of death.  Those so chosen, according to prosecutors, judges, and legislators, are meant to be the “worst of the worst.”  During the past two decades, death sentencing has steadily decreased from its peak of 315 cases in 1996 to fewer than 50 in 2018....  This is a meaningful trend, but the capital punishment system continues to provide fodder for politicians touting “tough on crime” positions, feeding the myth that the capital punishment system identifies and punishes those most evil in American society.  Whether for or against the death penalty, few people are satisfied with the current system....

I came to think of the trials I witnessed as games of Russian roulette, unnecessary sport where someone would inevitably die, and that I had no power to stop.  Criminal defendants arrive at capital trials through a series of structuring logics ordained by racial classification and state power.  In part I, I take readers through the first major structuring logic: the construction of capital homicide.  From a vast backdrop of millions of human deaths a year, courts, legislatures, police forces, and prosecutors define some deaths as homicide — the result of malicious human intent — before settling on those worthy of being considered capital.  What I refer to as the “narrowing structure” of the capital punishment field is not unproblematic.  The cultural and legal norms that determine who eventually is tried by a capital jury follow confusing and often contradictory logics....  Importantly, the stages of capital narrowing are unknown to most of the parties involved.  Though I worked in capital sentencing for years, I had little idea about the mechanisms determining who was tried capitally.  Capital jurors, I will argue, are likewise and necessarily uninformed.  When they agree to participate in the capital sentencing process, they are assured that they are the last in a series of people who systematically ensure that those tried for capital murder are the worst society has to offer.

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

Friday, July 17, 2020

"A Vision for the Modern Prosecutor"

The title of this post is the title of this intriguing new five-page document produced by the Executive Session of the Institute for Innovation in Prosecution at John Jay College. Here is the piece's introduction and some key elements:

In the wake of unprecedented and overdue attention on the criminal legal system and its role in our Nation’s legacy of racial injustice, as elected prosecutors and members of the Institute for Innovation in Prosecution’s Executive Session on the Role of the Prosecutor, we believe that it is possible to describe and call for an emerging vision for the role of a modern prosecutor.  In doing so, we find it necessary to contrast this vision with a description of the traditional ways that prosecutors have carried out their responsibilities.  In this paper we describe this contrast between traditional practice and a vision of the future by comparing their conceptions of justice, modes of operation, culture, accountability, and metrics. In making these contrasts, we celebrate the power and potential of the current wave of prosecutorial reform that we are witnessing around the country. We have high hopes that this movement will support the broader re-examination of our society’s response to crime and aspiration for justice.

Conceptions of Justice

Traditionally: Prosecutors have defined their role principally as part of a larger criminal justice system that operates with a primary focus on case processing....

We believe the future of prosecution requires that: Prosecutors explicitly set aside this notion of the criminal justice system as a case processing apparatus.... 

 

Modes of Operation

Traditionally: Prosecutors have been largely reactive....

We believe the future of prosecution requires that: Prosecutors no longer regard themselves as recipients of other actors’ cases or as limited by existing system options with respect to dispositions of those cases....

 

Culture

Traditionally: Prosecutors have been acculturated to consider themselves to be the “us,” and the “good guys,” in an “us vs. them” and “good vs. bad” world....

We believe the future of prosecution requires that: Prosecutors recognize the complexity of the people with whom they engage and of the matters to which they attend....

 

Accountability and Metrics

Traditionally: Prosecutors have relied on internal, narrow, and often ill-defined standards for judging their performance....

We believe the future of prosecution requires that: Prosecutors develop broad, explicit and transparent standards and expectations for their actions and outcomes....

Prosecutors must make violence and violence prevention a top priority.

July 17, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Thursday, July 16, 2020

Via 6-3 vote, SCOTUS refuses to vacate Eleventh Circuit stay that prevents certain persons with felony convictions from registering to vote

As reported in this CNBC piece, headlined "Supreme Court leaves in place Florida ‘pay-to-vote’ law aimed at felons," the Court this afternoon left in operation "a Florida law requiring those with felony convictions to pay fines before they may vote, potentially blocking about three-quarters of a million otherwise-eligible voters from the polls."  Here is more of the legal essentials: 

The case concerned an a 2018 ballot initiative in which voters in the state ended the permanent disenfranchisement of felons who had completed “all terms of sentence including parole or probation.”  The legislature defined the phrase the following year to include fines, restitution and other fees. Gov. Ron DeSantis, a Republican, signed the bill in June 2019. 

After civil rights groups challenged the legislature’s move, a federal judge blocked the law from going into effect, but that decision was halted by the 11th U.S. Circuit Court of Appeals, which is continuing to consider the matter.

The American Civil Liberties Union, the Southern Poverty Law Center, and Campaign Legal Center asked the top court to reverse the 11th Circuit’s decision.  The groups argued in court papers that most of the 750,000 potential voters could not afford what they owed, and that many had no way of knowing how much they were required to pay.  In court papers, they urged the justices to block the law so that the August and November elections would not be “undermined by chaos and disenfranchisement.”

Attorneys for DeSantis argued that states were “under no obligation to reenfranchise felons at all.” They argued that “all Floridians will be irreparably harmed” if the court allowed “hundreds of thousands of ineligible voters to take part in the upcoming elections.”

Paul Smithvice president of the Campaign Legal Center, said in a statement on Thursday that the Supreme Court’s order was “deeply disappointing.”

“Florida’s voters spoke loud and clear when nearly two-thirds of them supported rights restoration at the ballot box in 2018,” Smith said. “The Supreme Court stood by as the Eleventh Circuit prevented hundreds of thousands of otherwise eligible voters from participating in Florida’s primary election simply because they can’t afford to pay fines and fees.”

Technically, all that SCOTUS did today via this order was turn down an application to vacate the stay that the Eleventh Circuit had put in place. This order was via 6-3 vote, with Justice Sotomayor authoring a dissent joined by Justices Ginsburg and Kagan that starts and ends this way:

This Court’s order prevents thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor.  And it allows the Court of Appeals for the Eleventh Circuit to disrupt Florida’s election process just days before the July 20 voter-registration deadline for the August primary, even though a preliminary injunction had been in place for nearly a year and a Federal District Court had found the State’s pay-to-vote scheme unconstitutional after an 8-day trial.  I would grant the application to vacate the Eleventh Circuit’s stay....

This Court’s inaction continues a trend of condoning disfranchisement.  Ironically, this Court has wielded Purcell as a reason to forbid courts to make voting safer during a pandemic, overriding two federal courts because any safety-related changes supposedly came too close to election day.  See Republican National Committee v. Democratic National Committee, 589 U.S. ___ (2020) (per curiam).  Now, faced with an appellate court stay that disrupts a legal status quo and risks immense disfranchisement — a situation that Purcell sought to avoid — the Court balks.

July 16, 2020 in Collateral consequences, Fines, Restitution and Other Economic Sanctions, Who Sentences | Permalink | Comments (4)

Federal execution déjà vu: after SCOTUS votes 5-4 to vacate injunction, feds complete another morning lethal injection

As reported here earlier this week, the federal government completed the execution of Daniel Lewis Lee, which had been scheduled for Monday, around 8am on Tuesday morning after a divided  Supreme Court around 2am vacated lower court ruling that were blocking the execution.  It was déjà vu all over again today:  sometime not long after 2am this morning, the US Supreme Court issued this order vacating the injunction, with four Justices in dissent and Justices Breyer and Sotomayor writing up the basis for their disagreement.  This new AP article reports on the execution and some of the legal wrangling that preceded it:

The United States on Thursday carried out its second federal execution this week, killing by lethal injection a Kansas man whose lawyers contended he had dementia and was unfit to be executed.

Wesley Ira Purkey was put to death at the Federal Correctional Complex in Terre Haute, Indiana. Purkey was convicted of kidnapping and killing a 16-year-old girl, Jennifer Long, before dismembering, burning and dumping her body in a septic pond. He also was convicted in a state court in Kansas after using a claw hammer to kill an 80-year-old woman who had polio....

As the lethal chemical was injected, Purkey took several deep breaths and blinked repeatedly, laying his head back down on the gurney. His time of death was 8:19 a.m. EDT. His spiritual adviser was in the room, wearing a face mask and a surgical mask and appeared to be praying, his gloved hands held together at the palms.

The Supreme Court cleared the way for the execution to take place just hours before, ruling in a 5-4 decision. The four liberal justices dissented, like they did for the first case earlier this week. Justice Sonia Sotomayor wrote that “proceeding with Purkey’s execution now, despite the grave questions and factual findings regarding his mental competency, casts a shroud of constitutional doubt over the most irrevocable of injuries.” She was joined by Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.

It was the federal government’s second execution after a 17-year hiatus. Another man, Daniel Lewis Lee, was put to death Tuesday after his eleventh hour legal bids failed. Both executions were delayed into the day after they were scheduled as legal wrangling continued late into the night and into the next morning....

Purkey’s lawyers had argued his condition had deteriorated so severely that he didn’t understand why he was being executed. They said he was repeatedly sexually assaulted as a child and had been diagnosed with schizophrenia, bipolar disorder and other mental health conditions....

The Supreme Court also lifted a hold placed on other executions set for Friday and next month. Dustin Honken, a drug kingpin from Iowa convicted of killing five people in a scheme to silence former dealers, was scheduled for execution Friday.

We may see this pattern play out one more time this week, as I suspect that Honken still has some legal claims to press to try to block his execution tomorrow and that the Supreme Court will eventually turn away those claims so that his execution goes forward. DPIC has this webpage trying to track all the legal developments in all these cases, though it looks like they all are going to end the same way.

Some prior recent related posts:

UPDATE: Over at SCOTUSblog here, Amy Howe has an extended post with more details on the litigation and rulings leading up to Purkey's execution this morning under the headline "Justices allow second federal execution to proceed (updated)."

July 16, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, July 15, 2020

Notable new polling and report on juve sentencing and punishment

I just saw that the folks at Data for Progress, The Justice Collaborative Institute, and Fair and Just Prosecution have produced this notable new report titled "A Majority of Voters Support an End to Extreme Sentencing for Children," on which the CFSY was consulted and offered support. The report discusses findings from two national polls indicating much of the public supports significant reform in juvenile sentencing and punishment. Here is part of its executive summary:

Extreme sentences have contributed to the United States being the number one incarcerator in the world — disparately impacting and devastating communities of color — and juvenile life-without-parole sentences are among the most draconian ongoing practices in our country.  These sentences essentially abandon young people to die in prison, despite the fact that children have great potential for rehabilitation and are deserving of second chances.

While a series of Supreme Court decisions in the past decade has altered the landscape of juvenile life-without-parole sentences, there are still too many men and women looking at spending the rest of their lives in prison for acts they committed as youth.  Juvenile life-without-parole sentences also contribute to the racial disparities in the criminal legal system overall: 80 percent of people serving life sentences for crimes they committed as youth are non-white.  More than 50 percent are Black.

But public discourse is shifting.  Reform that ends juvenile life-without-parole sentences is both popular with the public and simple common sense. Community members across the ideological spectrum understand that young people have the capacity to change, and want the justice system to rehabilitate young people, rather than imprison them for life.  Two recent national polls conducted by Data For Progress found that a majority of voters believe no one who committed a crime as a child should be sentenced to life in prison without the hope or the opportunity for a second chance.  Fewer than a third of voters disagree.

As the public conversation considers the future of policing and the meaning of public safety, criminal justice leaders must use this as an opportunity to think more broadly about the entire criminal justice system and make critical changes, especially changes that are sensible, supported by science, and in furtherance of racial equity.  There is no better place to begin than to give young people a chance at redemption and end juvenile life-without-parole.

July 15, 2020 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

An ever-timely offer for compassionate release help from one who was recently released

I suspect a number of readers know the name Chad Marks, perhaps from these prior recent posts about his case:

As the second of this posts details, Chad secured a significant sentence reduction this year, allowing him to leave prison last month.  My understanding that Chad quite selflessly helped a number of his fellow prisoners with legal claims and filings while he was incarcerated, and I saw from this new Facebook posting that he is eager to continue to do so:

With COVID-19 ramping back up in our prison system if you and your loved ones need help with preparing a 3582 motion, or if you need help with a 2255 contact me at www.myfreedomfighters.com

Posted by Chad Marks on Wednesday, July 15, 2020

Because I get a lot of inquiries about getting help with compassionate release motions, I wanted to here be able to share this important and insightful human resource.  Chad welcomed my suggestion of posting his Facebook offer, and I am grateful he has.

July 15, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

DC District Judge blocks today's scheduled federal execution based on Ford claim of incompetency

As detailed in this new AP piece, this morning a DC District Judge "halted the execution of a man said to be suffering from dementia, who had been set to die by lethal injection in the federal government’s second execution after a 17-year hiatus." Here is more:

Wesley Ira Purkey, convicted of a gruesome 1998 kidnapping and killing, was scheduled for execution Wednesday at the U.S. Penitentiary in Terre Haute, Indiana, where Daniel Lewis Lee was put to death Tuesday after his eleventh-hour legal bids failed.

U.S. District Judge Tanya Chutkan in Washington, D.C., imposed two injunctions on Wednesday prohibiting the federal Bureau of Prisons from moving forward with Purkey’s execution. The Justice Department immediately appealed in both cases. A separate temporary stay was already in place from the 7th U.S. Circuit Court of Appeals.

The early morning legal wrangling suggests a volley of litigation will continue in the hours ahead of Purkey’s scheduled execution, similar to what happened when the government executed Lee, following a ruling from the Supreme Court. Lee, convicted of killing an Arkansas family in a 1990s plot to build a whites-only nation, was the first of four condemned men scheduled to die in July and August despite the coronavirus pandemic raging inside and outside prisons.

Purkey, 68, of Lansing, Kansas, would be the second, but his lawyers were still expected to press for a ruling from the Supreme Court on his competency. “This competency issue is a very strong issue on paper,” said Robert Dunham, executive director of the Death Penalty Information Center. “The Supreme Court has halted executions on this issue in the past. At a minimum, the question of whether Purkey dies is going to go down to the last minute.”

Chutkan didn’t rule on whether Purkey is competent but said the court needs to evaluate the claim. She said that while the government may disagree with Purkey’s lawyers about his competency, there’s no question he’d suffer “irreparable harm” if he’s put to death before his claims can be evaluated.

Lee’s execution went forward a day late. It was scheduled for Monday afternoon, but the Supreme Court only gave the green light in a narrow 5-4 ruling early Tuesday.

The issue of Purkey’s mental health arose in the runup to his 2003 trial and when, after the verdict, jurors had to decide whether he should be put to death in the killing of 16-year-old Jennifer Long in Kansas City, Missouri. Prosecutors said he raped and stabbed her, dismembered her with a chainsaw, burned her and dumped her ashes 200 miles (320 kilometers) away in a septic pond in Kansas. Purkey was separately convicted and sentenced to life in the beating death of 80-year-old Mary Ruth Bales, of Kansas City, Kansas.

But the legal questions of whether he was mentally fit to stand trial or to be sentenced to die are different from the question of whether he’s mentally fit enough now to be put to death. Purkey’s lawyers argue he clearly isn’t, saying in recent filings he suffers from advancing Alzheimer’s disease. “He has long accepted responsibility for the crime that put him on death row,” one of this lawyers, Rebecca Woodman, said. “But as his dementia has progressed, he no longer has a rational understanding of why the government plans to execute him.”

Purkey believes his planned execution is part of a conspiracy involving his attorneys, Woodman said. In other filings, they describe delusions that people were spraying poison into his room and that drug dealers implanted a device in his chest meant to kill him.

While various legal issues in Purkey’s case have been hashed, rehashed and settled by courts over nearly two decades, the issue of mental fitness for execution can only be addressed once a date is set, according to Dunham, who teaches law school courses on capital punishment. A date was set only last year. “Competency is something that is always in flux,” so judges can only assess it in the weeks or days before a firm execution date, he said.

In a landmark 1986 decision, the Supreme Court ruled the Constitution prohibits executing someone who lacks a reasonable understanding of why he’s being executed. It involved the case of Alvin Ford, who was convicted of murder but whose mental health deteriorated behind bars to the point, according to his lawyer, he believed he was pope.

Purkey’s mental issues go beyond Alzheimer’s, his lawyers have said. They say he was subject to sexual and mental abuse as a child and, at 14, was diagnosed with schizophrenia, bipolar disorder, major depression and psychosis. Last week, three mental health organizations urged U.S. Attorney William Barr to stop Purkey’s execution and commute his sentence to life in prison without possibility of parole. The National Alliance on Mental Illness, Mental Health America and the Treatment Advocacy Center said executing mentally ailing people like Purkey “constitutes cruel and unusual punishment and does not comport with ‘evolving standards of decency.’”

The mother of the slain teenager, Glenda Lamont, told the Kansas City Star last year she planned to attend Purkey’s execution. “I don’t want to say that I’m happy,” Lamont said. “At the same time, he is a crazy mad man that doesn’t deserve, in my opinion, to be breathing anymore.”

US District Judge Chutkan’s 14-page ruling granting a preliminary injunction to  halt the execution can be accessed here.  I was able to accurately guess at this time two days ago that Judge Chutkan's order blocking Daniel Lewis Lee's execution would get vacated on appeal.  But the nature of Purkey's claim make (as well as other litigation he has afoot) leads me to think it somewhat more likely that Purkey's scheduled execution will not go forward today.  But as I said before and will surely say again, one really never knows just what will happen when it comes to last-minute capital litigation.

July 15, 2020 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, July 14, 2020

"The United States of Risk Assessment: The Machines Influencing Criminal Justice Decisions"

The title of this post is the title of this very useful Law.com/Legaltech News article and related research project by Rhys Dipshan, Victoria Hudgins and Frank Ready. The subtitle of the piece provides an overview: "In every state, assessment tools help courts decide certain cases or correctional officers determine the supervision and programming an offender receives. But the tools each state uses varies widely, and how they're put into practice varies even more."  This companion piece, titled "The Most Widely Used Risk Assessment Tool in Each U.S State," provides this introduction:

There are dozens of risk assessment tools in use in local criminal justice systems around the country.  Not all have a far reaching impact, such as those specialized to a specific risk like domestic violence or those assessing risk for a certain demographic like juvenile offenders.  Tools that have the broadest impact and deployment, however, are ones that look at recidivism pretrial risk in adult populations.

Below, we highlight these specific tools in use in each state, and the criminal justice decisions point they influence.  These findings are part of a broader research project examining how jurisdictions implement risk assessment tools, and how they determine they accurately work and are implemented as intended.  The project also dives into how risk assessment tools generate their scores and the debate around whether these instrument exacerbate or mitigate bias in criminal justice decision making.

July 14, 2020 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, State Sentencing Guidelines, Technocorrections, Who Sentences | Permalink | Comments (2)

SCOTUS, by 5-4 vote, vacates new injunction that had been blocking scheduled federal executions ... UPDATE: execution of Daniel Lewis Lee now completed

As noted in this post yesterday, a DC District Court in the morning had entered an order blocking yesterday scheduled federal execution as well as the others planned for this week. That ruling stayed in place through a DC Circuit appeal. But at around 2am this morning, the US Supreme Court decided in this per curiam opinion to "vacate the District Court’s preliminary injunction so that the plaintiffs’ executions may proceed as planned." This AP article provides context and more details:

The Trump administration was moving ahead early Tuesday with the execution of the first federal prison inmate in 17 years after a divided Supreme Court reversed lower courts and ruled federal executions could proceed.

Daniel Lewis Lee had been scheduled to receive a lethal dose of the powerful sedative pentobarbital at 4 p.m. EDT Monday.  But a court order issued Monday morning by U.S. District Judge Tanya Chutkan prevented Lee’s execution.  A federal appeals court in Washington refused the administration’s plea to step in, leaving the hold in place, before the Supreme Court acted by a 5-4 vote.  Still, Lee’s lawyers insisted the execution could not go forward after midnight under federal regulations.  With conservatives in the majority, the court said in an unsigned opinion that the prisoners’ “executions may proceed as planned.” The four liberal justices dissented.

Lee’s execution was scheduled for about 4 a.m. EDT Tuesday, according to court papers. There was another delay when the government asked for an emergency ruling related to an old stay that had been issued in the case, but that wasn’t expected to derail the execution. The Bureau of Prisons had continued with preparations even as lower courts paused the proceedings....

Lee was convicted in Arkansas of the 1996 killings of gun dealer William Mueller, his wife, Nancy, and her 8-year-old daughter, Sarah Powell. “The government has been trying to plow forward with these executions despite many unanswered questions about the legality of its new execution protocol,” said Shawn Nolan, one of the attorneys for the men facing federal execution.

The decision to move forward during a global health pandemic that has killed more than 135,000 people in the United States and is ravaging prisons nationwide, drew scrutiny from civil rights groups as well as family of Lee’s victims.

Some members of the victims’ family argued they would be put at high risk for the coronavirus if they had to travel to attend, and sought to delay the execution until it was safer to travel. Those claims were at first granted but also eventually overturned by the Supreme Court. [NOTE: It was the Seventh Circuit that overturned these claims, but SCOTUS upheld that decision.]

Critics argue that the government is creating an unnecessary and manufactured urgency for political gain. The developments are also likely to add a new front to the national conversation about criminal justice reform in the lead-up to the 2020 elections.

Two more executions are scheduled this week, though one, Wesley Ira Purkey, was on hold in a separate legal claim. Dustin Lee Honken’s execution was scheduled for on Friday. A fourth man, Keith Dwayne Nelson, is scheduled to be executed in August.

In an interview with The Associated Press last week, Attorney General William Barr said the Justice Department has a duty to carry out the sentences imposed by the courts, including the death penalty, and to bring a sense of closure to the victims and those in the communities where the killings happened.

But relatives of those killed by Lee strongly oppose that idea. They wanted to be present to counter any contention that it was being done on their behalf. “For us it is a matter of being there and saying, `This is not being done in our name; we do not want this,’” said relative Monica Veillette....

Executions on the federal level have been rare and the government has put to death only three defendants since restoring the federal death penalty in 1988 — most recently in 2003, when Louis Jones was executed for the 1995 kidnapping, rape and murder of a young female soldier. In 2014, following a botched state execution in Oklahoma, President Barack Obama directed the Justice Department to conduct a broad review of capital punishment and issues surrounding lethal injection drugs. The attorney general said last July that the Obama-era review had been completed, clearing the way for executions to resume.

The Supreme Court's per curiam opinion runs three pages, and separate dissents by Justice Breyer and Justice Sotomayor are of similar lengthy and hit their usual notes of complaint about the death penalty. And Justice Breyer's dissent seemed resigned to a particular outcome, as its first sentence states plainly: "Today, for the first time in 17 years, the Federal Government will execute an inmate, Daniel Lewis Lee."

Notably, though the AP report suggested that the Lee execution was still to go forward in the early hours of this morning, as of this writing (just after 8 am on July 14) there is no report that the execution has been completed.

Prior recent related posts:

UPDATE: I suppose I should have waited a few minutes to complete this post, as this Fox News piece now has this updated headline: "Daniel Lewis Lee executed for torturing, killing Arkansas family in 1996, first federal execution 17 years." Here is the start of the piece:

A white supremacist who tortured and killed an Arkansas family-- including an 8-year-old girl-- was executed early Tuesday morning in Indiana. Daniel Lewis Lee, 47, was injected with a lethal dose of pentobarbital at 8:07 a.m., just hours after the Supreme Court greenlighted the first federal execution to take place since 2003.

July 14, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, July 13, 2020

"Abolishing Private Prisons: A Constitutional and Moral Imperative"

The title of this post is the title of this new paper authored by andré douglas pond cummings and Robert Craig available via SSRN. Here is part of the paper's abstract:

President Richard Nixon declared a “War on Drugs” in 1971. President Ronald Reagan federalized and militarized this “war” in the 1980s.  Shortly after the War on Drugs was declared, federalized, and militarized, a private for-profit company in Tennessee sprang up calling itself the Corrections Corporations of America (CCA).  The creation of this private prison corporation ushered in a new carceral era where the traditional government function of adjudicating crime, punishment, and imprisonment became intertwined with the corporate governance principles and goals of profit maximization for shareholders; executive compensation based on profits and share price; forward-looking statements forecasting more robust prison populations; and increased profit levels built almost solely on human misery and degradation....

Private prison executives and lobbyists seek to increase privatization of the industry by promising that their prisons are run more efficiently at lower costs, with greater safety records, improved facilities, and with greater outcomes for prisoners.  However, studies and reports now show that these declarations by private prison executives and lobbyists are deceitful.  Private prisons are increasingly being shown to cost contracting governments’ more, not less, are less safe, and less economical.  The exchange of taxpayer funds from governments and municipalities into the hands of corporate shareholders and executives is nothing more than an unabashed transfer of taxpayer monies into the personal accounts of those with a stake in private prisons — which are being shown to provide no real benefit in return.  Private incarceration makes no sense morally, and it is increasingly apparent that the industry makes no sense economically and, in fact, is likely unconstitutional....

This article will show: first, that mixing profit with the core governmental function of incarceration leads to damaging consequences for prisoners, employees (of both private and public prisons), and the public at large while benefiting a small group of executives and shareholders; second, that the implementation of for-profit incarceration in the United States hampers access to justice, particularly for already marginalized groups; and third, that the serious constitutional concerns noted by Professor Robbins have been borne out, and they now deserve consideration by the United States Supreme Court.

July 13, 2020 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

DC District Judge issues new stay, based on Eighth Amendment claims, to block this week's scheduled federal executions

As detailed in this new AP piece, a "district judge on Monday ordered a new delay in federal executions, hours before the first lethal injection was scheduled to be carried out at a federal prison in Indiana. The Trump administration immediately appealed to a higher court, asking that the executions move forward." Here is more:

U.S. District Judge Tanya Chutkan said there are still legal issues to resolve and that “the public is not served by short-circuiting legitimate judicial process.” The executions, pushed by the administration, would be the first carried out at the federal level since 2003. Chutkan said the inmates have presented evidence showing that the government’s plan to use only pentobarbital to carry out the executions “poses an unconstitutionally significant risk of serious pain.”

Chutkan said the inmates produced evidence that, in other executions, prisoners who are given pentobarbital suffered ”flash pulmonary edema,” which she said interferes with breathing and produces sensations of drowning and strangulation. The inmates have identified alternatives, including the use of an opioid or anti-anxiety drug at the start of the procedure or a different method altogether, a firing squad, Chutkan said.

The Justice Department immediately appealed to the U.S. Court of Appeals for the District of Columbia Circuit. The new hold on executions came a day after a federal appeals court lifted a hold on the execution of Daniel Lewis Lee, of Yukon, Oklahoma, which is scheduled for 4 p.m. EDT on Monday at the federal prison in Terre Haute, Indiana. He was convicted in Arkansas of the 1996 killings of gun dealer William Mueller, his wife, Nancy, and her 8-year-old daughter, Sarah Powell....

In an interview with The Associated Press last week, Attorney General William Barr said the Justice Department has a duty to carry out the sentences imposed by the courts, including the death penalty, and to bring a sense of closure to the victims and those in the communities where the killings happened.

But relatives of those killed by Lee strongly oppose that idea. They wanted to be present to counter any contention that it was being done on their behalf. “For us it is a matter of being there and saying, `This is not being done in our name; we do not want this,’” said relative Monica Veillette....

Barr said he believes the Bureau of Prisons could “carry out these executions without being at risk.” The agency has put a number of additional measures in place, including temperature checks and requiring witnesses to wear masks. On Sunday, the Justice Department disclosed that a staff member involved in preparing for the execution had tested positive for the coronavirus, but said he had not been in the execution chamber and had not come into contact with anyone on the specialized team sent to the prison to handle the execution.

The victim’s family hopes there won’t be an execution, ever. They’ve asked the Justice Department and President Donald Trump not to move forward with the execution and have long asked that he be given a life sentence instead.

The three men scheduled to be executed this week had been scheduled to be put to death when Barr announced the federal government would resume executions last year, ending an informal moratorium on federal capital punishment as the issue receded from the public domain. A fourth man is scheduled to be put to death in August. The Justice Department had scheduled five executions set to begin in December, but some of the inmates challenged the new procedures in court.

Executions on the federal level have been rare and the government has put to death only three defendants since restoring the federal death penalty in 1988 — most recently in 2003, when Louis Jones was executed for the 1995 kidnapping, rape and murder of a young female soldier.

In 2014, following a botched state execution in Oklahoma, President Barack Obama directed the Justice Department to conduct a broad review of capital punishment and issues surrounding lethal injection drugs. The attorney general said last July that the Obama-era review had been completed, clearing the way for executions to resume. He approved a new procedure for lethal injections that replaces the three-drug combination previously used in federal executions with one drug, pentobarbital. This is similar to the procedure used in several states, including Georgia, Missouri and Texas, but not all.

US District Judge Chutkan’s 22-page ruling granting this stay can be accessed here. I would be inclined to guess that this stay will be vacated on appeal, but one never knows when it comes to last-minute capital litigation.

July 13, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)