Sentencing Law and Policy

RFK's assassin, Sirhan Sirhan, denied parole after 17th California parole board hearing

As reported in this New York Times article, a "California panel on Wednesday denied parole for Sirhan B. Sirhan, the man convicted in the 1968 assassination of Senator Robert F. Kennedy, in its first review of the case since Gov. Gavin Newsom decided last year that Mr. Sirhan, 78, should not be released." Here is more:

The parole board’s latest decision, which followed a hearing via videoconference from the state prison in San Diego, where Mr. Sirhan has been held, was the second time in three years that Mr. Sirhan’s release had been considered.  He has spent more than a half-century behind bars for shooting Mr. Kennedy, then a candidate for president, inside the Ambassador Hotel in Los Angeles at the end of a campaign appearance in 1968.  At the time, Mr. Sirhan was 24.

His lawyers have argued that he is not a danger to the public and should be released.  In 2021, a panel of the parole board agreed. But after an extraordinary chain of events, the governor overruled the panel last year, charging that Mr. Sirhan had not yet been rehabilitated.

On Wednesday, after Mr. Sirhan’s 17th parole hearing, the new recommendation was made by a commissioner and a deputy commissioner who were not part of the review panel in 2021. Governor Newsom had no comment....

By 2021, California law required the parole board, when making a determination on releasing an inmate, to consider the inmate’s advanced age and his relative youth at the time a crime was committed.  After 15 prior denials, a panel of commissioners granted him parole that year.  They noted then that Mr. Sirhan had improved himself by taking classes in prison. Two of Mr. Kennedy’s sons had also urged leniency.

But most of the family was adamant that Mr. Sirhan remain behind bars and pleaded with Mr. Newsom to exercise his power under California law to reject the panel’s recommendation.  In January 2022, after more than four months of review, the Democratic governor — who has long spoken of Mr. Kennedy as a role model — granted that plea.

“After decades in prison, he has failed to address the deficiencies that led him to assassinate Senator Kennedy,” the governor wrote last year. “Mr. Sirhan lacks the insight that would prevent him from making the same types of dangerous decisions he made in the past.”

Mr. Sirhan’s lawyer, Angela Berry, has since asked a Los Angeles Superior Court judge to reverse Mr. Newsom’s 2022 parole denial. With that petition pending, she said on Wednesday that she believed the panel’s latest decision had been influenced by the governor’s rejection last year.

Prior related posts:

• Notably high-profile cases now the focus of parole decision-making 
• RFK killer. Sirhan Sirhan, recommended for parole after decades of denials 
• "If Democrats don't think Robert Kennedy’s assassin deserves parole, do they really support criminal justice reform?" 
• California Gov Newsom reverse parole grant to Sirhan Sirhan, RFK's assassin 

An interesting (and dubitante) SCOTUS argument in Dubin

I flagged in this post from last November the Supreme Court's cert grant in Dubin v. United States, which concerns the reach of the federal criminal law that adds a mandatory two-year prison term for using another person’s identity in the process of committing another crime.  That statute, 18 U.S.C. § 1028A, is titled "Aggravated identity theft," but the statutory language would seem to cover a whole lot more conduct than what most think of as identify theft.  In fact, the government seem to be claiming that waiter who adds for himself an unauthorized $1 tip when swiping a patron's credit card would be guilty of credit card fraud and an additional two-year mandatory prison term under § 1028A.  

This matter was argued before the Supreme Court yesterday and the lengthy argument had all sorts of interesting elements.  (The transcript, running over 100 pages, is available here; the audio is available here.)  As detailed in the pieces linked below, it seems nearly all the Justices believe there have to be some limiting principles for application of this statute.  But while the Justices seem to generally doubt the government's broad statutory reading, it is unclear what part of the statutory text may provide real limits and on what terms.  Stay tuned:

From Bloomberg Law, "Justices Appear Ready to Limit Breadth of Identity Theft Law"

From the New York Times, "Supreme Court Seems Skeptical of Broad Sweep of Identity Theft Law"

From SCOTUSblog, "Justices lean toward narrow reading of aggravated identity theft"

From Security Boulevard, "Supreme Court: Does BIlling Fraud Violate Federal ID Theft Statutes?"

Notable 5-4 SCOTUS split in ruling to limit civil penalties of Bank Secrecy Act

Certain types of Supreme Court cases involve issues that can make it relatively easy to predict how nearly every Supreme Court Justice will vote.  But so-called "white-collar" cases are often not the predictable type, and today's Supreme Court ruling in Bittner v. United States, No. 21-1195 (Feb. 28, 2023) (available here), is a notable example of this reality.  The case involved the proper accounting for civil penalties for non-willful violations of the Bank Secrecy Act, and the individual prevails against the federal government through this notable voting pattern: 

GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court except as to Part II–C. JACKSON, J., joined that opinion in full, and ROBERTS, C. J., and ALITO and KAVANAUGH, JJ., joined except for Part II–C. BARRETT, J., filed a dissenting opinion, in which THOMAS, SOTOMAYOR, and KAGAN, JJ., joined.

Criminal justice fans should be a bit disappointed by the decision by three Justices to not join Part II-C of Justice Gorsuch's opinion. That section has these notable things to say about the rule of lenity:

Under the rule of lenity, this Court has long held, statutes imposing penalties are to be “construed strictly” against the government and in favor of individuals.  Commissioner v. Acker, 361 U.S. 87, 91 (1959)....

The rule of lenity is not shackled to the Internal Revenue Code or any other chapter of federal statutory law. Instead, as Acker acknowledged, “[t]he law is settled that penal statutes are to be construed strictly,” and an individual “is not to be subjected to a penalty unless the words of the statute plainly impose it.” 361 U. S., at 91 (internal quotation marks omitted and emphasis added).  Notably, too, Acker cited to and relied on cases applying this same principle to penalty provisions under a wide array of statutes, including the Communications Act of 1934, a bankruptcy law, and the National Banking Act.  See ibid....

[T]he rule exists in part to protect the Due Process Clause’s promise that “a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.” McBoyle v. United States, 283 U.S. 25, 27 (1931).

If this section of the Bittner opinion carried the Court, I suspect this case might end up cited in more than a few criminal statutory interpretation cases. Maybe it still will be, but I suspect this ruling will end up of more interest to bankers than to criminal lawyers.

"Revocation at the Founding"

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

The Supreme Court is divided over the constitutional law of community supervision.  The justices disagree about the nature of liberty under supervision, the rights that apply when the government revokes supervision as punishment for violations, and the relationship between parole, probation, and supervised release.  These divisions came to a head in 2019’s United States v. Haymond, where the justices split 4-1-4 on whether the right to a jury trial applies to revocation of supervised release.  Their dispute focused on the original understanding of the jury right at the time the Constitution was ratified.

This Article aims to settle the debate over the law of revocation at the Founding. In the late 18th-century United States, there was a close legal analogue to modern community supervision: the recognizance to keep the peace or for good behavior.  Like probation, parole, and supervised release, the recognizance was a term of conditional liberty imposed as part of the punishment for a crime, providing surveillance and reporting on the defendant’s behavior, and with violations punishable by imprisonment.  Given these similarities, the best way to determine if the original understanding of the jury right would apply to revocation of community supervision is to ask whether the common law required a jury for punishing violations of a recognizance.

Fortunately, Founding Era legal authorities make the answer to that question clear: Yes, at the time the Constitution was ratified, punishing recognizance violations required a jury trial.  This requirement only disappeared during the 19th century with the development of probation and parole, which changed the structure of community supervision from an additional penalty into a delayed punishment.  Because supervised release is structured as a penalty, not a delay, the original understanding of the jury right would apply to revocation of supervised release, even if not to probation or parole.  The law of revocation at the Founding preserves lost constitutional rights that deserve modern reconsideration and renewal.

Alabama officials ready to resume carrying out death sentences

Alabama had two botched lethal injection executions back in Fall 2022, which prompted its Governor to order a review of execution protocols and operation.  As detailed in this local article, headlined "Executions back on in Alabama after brief moratorium," Alabama has completed that review and will now try to get back to conducting executions:

Executions are back on in Alabama. According to an email from Gov. Kay Ivey’s communications director, Ivey received a letter Friday from Alabama Department of Corrections Commissioner John Hamm.  Hamm told the governor that the “top-to-bottom” review of the state’s execution process is complete.

“Upon receiving word from Commissioner Hamm, Governor Kay Ivey asked Attorney General Steve Marshall to ask the Supreme Court to issue an execution warrant for an eligible death row inmate whenever he deems appropriate,” said Ivey’s Communications Director Gina Maiola.  In a letter to Marshall, Ivey said, “it is time to resume our duty of carrying out lawful death sentences.”

On Friday afternoon, Marshall announced on social media that he filed a motion seeking the Alabama Supreme Court to set an execution date for James Barber.  Barber has been on death row since 2004 for the fatal beating of 75-year-old Dorothy Epps. Marshall added that his office “will be seeking death warrants for other murderers in short order.”

No details were provided as to what was learned during the internal review of the execution process, but Hamm wrote that the ADOC has “ordered and obtained new equipment” for future executions....

On Nov. 21, following two failed execution attempts, Ivey ordered a halt to all executions in Alabama.  “Working in conjunction with Alabama Department of Corrections Commissioner John Hamm, Governor Ivey is asking that the Department of Corrections undertake a top-to-bottom review of the state’s execution process, and how to ensure the state can successfully deliver justice going forward,” a press release from that day stated. Ivey also asked the Alabama AG’s office to not seek additional execution dates for any other Alabama Death Row inmates until the review is complete.

The announcement of a halt to executions came just days after Kenneth Smith’s execution was called off just before midnight on Nov. 17.  The state called off the lethal injection after not being able to find veins to start the intravenous lines needed for the three-drug cocktail, which had to be done before midnight when the execution warrant expired. Another execution -- that of Alan Miller -- was called off in September for similar reasons.

The only change publicly known to Alabama’s execution protocol that was made during the three-month moratorium was a change made by the Alabama Supreme Court, ending the midnight deadline.  The state’s highest court authorized a rule change allowing for an execution warrant to be issued for a time frame rather than a single day.  The rule means the governor can choose the timing of an execution, according to the court’s order....

There are currently 166 inmates sitting on Alabama Death Row.

In his letter to Ivey announcing the end of the internal review, Hamm said, “After discussing the matter with my staff, I am confident that the Department is as prepared as possible to resume carrying out executions consistent with the mandates of the Constitution.  This is true in spite of the fact that death row inmates will continue seeking to evade their lawfully imposed death sentences.”

Some prior related posts:

• Alabama botches execution by failing to be able to complete it before expiration of death warrant 
• Alabama unable to complete execution because of lethal injection difficulties
• After another botched lethal injection effort, Alabama Gov orders moratorium on executions in state 
• Alabama Attorney General says "there is no moratorium" on executions in the state ... while executions are suspended
• Could Alabama have an execution using nitrogen gas in 2023? 

SCOTUS grants certiorari to review reach of FIRST STEP Act's expansion of statutory safety valve

As predicted in this post a couple days ago, sentencing fans now get to turn their attention to the Supreme Court for the next chapter of a fascinating FIRST STEP Act statutory interpretation issue.  Specifically, in this morning's SCOTUS order list, one of the two cases receiving certiorari grants was Pulsifer v. United States.  Here is the (lengthy) question presented as set forth in the defendant's cert petition:

The “safety valve” provision of the federal sentencing statute requires a district court to ignore any statutory mandatory minimum and instead follow the Sentencing Guidelines if a defendant was convicted of certain nonviolent drug crimes and can meet five sets of criteria.  See 18 U.S.C. § 3553(f)(1)–(5).  Congress amended the first set of criteria, in § 3553(f)(1), in the First Step Act of 2018, Pub. L. No. 115-391, § 402, 132 Stat. 5194, 5221, broad criminal justice and sentencing reform legislation designed to provide a second chance for nonviolent offenders. A defendant satisfies § 3553(f)(1), as amended, if he “does not have — (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.” 18 U.S.C. § 3553(f)(1) (emphasis added).

The question presented is whether the “and” in 18 U.S.C. § 3553(f)(1) means “and,” so that a defendant satisfies the provision so long as he does not have (A) more than 4 criminal history points, (B) a 3-point offense, and (C) a 2-point offense (as the Ninth Circuit holds), or whether the “and” means “or,” so that a defendant satisfies the provision so long as he does not have (A) more than 4 criminal history points, (B) a 3-point offense, or (C) a 2-point violent offense (as the Seventh and Eighth Circuits hold).

Notably, as regular readers know, the circuit split on this issue has deepened to include two more circuits on both sides of the debate.  Federal criminal justice practitioners and sentencing fans certainly will be following this case closely because its resolution will impact thousands of drug defendants sentenced in federal courts every year. But statutory construction gurus (and isn't that everyone) will also surely be interest in the debates this case can present about textualism, plain meaning and the rule of lenity. Stay tuned.

Cruising around some early commentary on Cruz v. Arizona

Perhaps in part because the U.S. Supreme Court has not yet issued that many notable opinions, and perhaps in part because every capital case that leads to an interesting 5-4 split ruling garners attention, there has been a good bit of early commentary regarding this past week's decision in Cruz v. Arizona, No. 21–846 (S. Ct. Feb 22, 2023) (available here), on behalf of a death row defendant. Here is a sampling:

At Crime & Consequences from Kent Scheidegger, "Supreme Court Reinstates Review of Arizona Murderer’s Case"

At Esquire from Charles P. Pierce, "Terrible Ideas Keep Inching Closer to Reality, Thanks to Supreme Court Conservatives"

At The Hill from Austin Sarat, "Supreme Court delivers rare victory for death row inmate: the chance to spend rest of his life behind bars"

At SCOTUSblog from Alexis Hoag-Fordjour, "In rare win for people on death row, justices chide Arizona for ignoring Supreme Court precedent"

At Slate from Leah Litman, "The Supreme Court Did Something Rare: Enforced a Precedent Conservatives Hate"

At the Washington Post from Ruth Markus, "The justices halt an execution — and reveal themselves in the process"

Split over reading of the FIRST-STEP-amended safety valve provision appears ready for SCOTUS review

In this post a couple of days ago, which discussed the latest notable circuit opinion interpreting the language Congress used in the FIRST STEP Act to expand the statutory safety valve enabling more federal drug defendants to be sentenced below mandatory minimum terms, I suggested it was only a matter of time before SCOTUS takes up the statutory interpretation dispute that has deeply divided lower courts.  And this new Relist Watch post by John Elwood at SCOTUSblog suggest it may actually be only a matter of days before cert is granted on this issue:

The Supreme Court will meet this Friday to consider whether to grant review in a group of around 95 petitions and motions. They will be considering eight cases for the second time....

Under the “safety-valve” provision of federal sentencing law, a defendant convicted of certain nonviolent drug crimes can obtain relief from statutory mandatory minimum sentences if, among other things, her criminal history satisfies criteria in 18 U.S.C § 3553(f)(1): she “does not have — (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.”

Pulsifer v. United States and Palomares v. United States present the question of how that provision should be read: whether a defendant is ineligible for relief from the mandatory minimum if her criminal history runs afoul of any one of the disqualifying criteria in subsections (A), (B), or (C), or is ineligible only if her criminal history runs afoul of all three disqualifying criteria, subsections (A), (B), and (C).  The government agrees that the circuits are divided and review is warranted, and recommends that the court take Pulsifer, which it says is the better vehicle.  Counsel for Palomares and Pulsifer trade barbs in their reply briefs about which is the better vehicle.  Probably at least one will get the grant.

I share the view that, if the Justice Department is advocating for review, we ought to expect a grant on one of these cases perhaps as early as Monday.  My understanding is that a grant now would set the case up for Fall 2023 argument and likely no decision from SCOTUS until early 2024. 

US Sentencing Commission to begin series of public hearings on its proposed guideline amendments

For sentencing fans looking for binge-worthy viewing and reading, the United States Sentencing Commission is on the verge of starting a series of public hearings concerning  its many proposed amendments to the US Sentencing Guidelines.  The hearing, which start Thursday morning at 9am EST, will be live-streamed at this link.  That link details that the hearing is scheduled to run all day on February 23 and for half the day on February 24 and during these two days "the Commission [will] receive testimony on proposed amendments to the federal sentencing guidelines related to Compassionate Release, Sex Abuse of a Ward, and Acquitted Conduct."

I count a full 25 witnesses scheduled for Thursday's hearing which is just considering guideline amendment for compassionate release.  Nearly all the written testimony for these witnesses can be found linked within the USSC's hearing schedule.  I doubt I will get a chance to review more than a few of the statements, and I welcome readers helping to flag written testimony that seems particularly notable.  There are "only" 12 witnesses scheduled for Friday's hearing covering sex abuse of a ward, and acquitted conduct.  A quick review of the seven statements concerning acquitted conduct reveal a wide variety of opinions from a wide variety of witnesses.

And if that's not enough for sentencing fans, the Commission today also noticed here its plans for a second two-day public hearing on Tuesday, March 7 and Wednesday, March 8.  As the notice explains, the "purpose of the public hearing is for the Commission to receive testimony on proposed amendments related to Firearms, Fake Pills and the First Step Act-Drug Offenses, Circuit Conflicts, Career Offender, and Criminal History."

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

American Bar Association's Criminal Justice Section Plea Bargaining Task Force today released this 40-page report. The report's introduction provides some background and details concerning its work:

The Plea Bargain Task Force formed in 2019 to address persistent criticisms of the plea bargain system in the United States. Plea bargaining has become the primary way to resolve criminal cases. Indeed, some jurisdictions have not had a criminal trial in many years, resolving all their cases through negotiated resolutions.  For this reason, a critical examination of the modern plea system is necessary and important.

This Report comes after three years of work, during which the Task Force collected and reviewed testimony from experts in the field and those impacted by the plea system, scholarly and legal reports on plea bargaining, state and federal rules of criminal procedure, and other materials. What has become clear from this process is that plea bargaining is not one monolithic practice. It looks different depending on whether one is in state or federal court, a rural jurisdiction with few lawyers or an urban center with large prosecution and public defender offices.  Even within the same courthouse, informal practices may differ between courtrooms and attorneys.  Although these variations pose a challenge for the development of any one-size-fits-all set of recommendations to reform plea bargaining practices, this Report identifies and addresses numerous concerns with plea bargaining that are common to a wide variety of jurisdictions.  The Report then provides guidance to jurisdictions on how to meet those challenges while also promoting justice, transparency, and fairness.

There are many purported benefits of plea bargaining in the current criminal justice system.  Nearly all jurisdictions have limited resources and plea bargaining provides a mechanism to efficiently resolve cases. By preserving resources this way, jurisdictions are able to direct greater resources to investigations and cases that proceed to trial. Additionally, plea bargaining provides a mechanism to incentivize defendants to cooperate with the government or to accept responsibility for their criminal conduct.  A plea also provides a clear and certain resolution to a case, which offers finality for the defendant, the victim, the courts, and the community. Furthermore, defendants use the plea process to avoid some of the most severe aspects of the criminal system.

In moderation, many of these benefits make sense. But as the Task Force discovered, too often these benefits have become the driving force of criminal adjudication at the cost of more fundamental values. For instance, according to the testimony the Task Force collected, at times, efficiency and finality trump truth-seeking. Furthermore, many benefits of plea bargaining are, when viewed in a different light, a means to mitigate the excessive harshness of the modern American criminal system. In this sense, plea bargaining is not so much providing a benefit as it is a safety valve for quotidian injustice.

Moreover, the Task Force reviewed substantial evidence that defendants—including innocent defendants — are sometimes coerced into taking pleas and surrendering their right to trial.   This happens for a number of reasons. For instance, mandatory sentencing laws often make the risks of taking a case to trial intolerable, and in some cases, prosecutors understand and exploit these fears to induce defendants to plead guilty in cases where they otherwise would prefer to exercise their constitutional right to have the case decided by a jury.  Similarly, mandatory collateral consequences, including the threat of deportation, push defendants to accept pleas in cases they might otherwise fight at trial.

The Task Force also discovered that the integrity of the criminal system is negatively affected by the sheer number of cases resolved by pleas. For example, police and government misconduct often goes unchecked because so few defendants proceed to pre-trial hearings where such misconduct is litigated.  The reality that so few pretrial matters are litigated leads prosecutors to be less critical of their witnesses and less willing to scrutinize the strength of their cases, knowing that they won’t be held accountable at trial. Defense lawyers, similarly, are less likely to properly investigate cases, knowing their clients will almost certainly  take a plea. Plea bargaining creates perverse incentives across the system for lawyers and judges who focus on disposition rates and getting through cases quickly rather than resolving cases justly. Furthermore, the loss of trials in favor of plea bargains is a profound loss for civic engagement. Jury trials provide critical oversight to the criminal system, and juries remain one of the only ways for citizens to shape how prosecutors enforce laws. The voice of the community is almost entirely lost in a system dominated by pleas.

More troubling still, the Task Force heard many ways in which plea bargaining promotes and exacerbates existing racial inequality in the criminal system. The Task Force collected testimony from experts in the field who demonstrated that throughout the plea process similarly situated defendants of color fare worse than white defendants. Black defendants in drug cases, for instance, are less likely to receive favorable plea offers that avoid mandatory minimum sentences and, as a result, receive higher sentences for the same charges as white defendants. The same is true for gun cases, in which Black defendants are more often subjected to charge stacking — a technique that allows prosecutors to pile on many charges, increasing the likely sentence after trial and the government’s leverage during plea negotiations – than white defendants.  In fact, across all charges the Task Force found evidence of significant racial disparities in prosecutorial decisions to drop or reduce charges.  For example, white defendants who face initial felony charges are less likely than Black defendants to be convicted of a felony, and white defendants facing misdemeanor charges are more likely than Black defendants to have their cases dismissed or resolved without incarceration.

After this introduction, this report sets forth fourteen principles that inform and structure the rest of the report.  Readers are encouraged to click through to see all the details, though here is the intro to the statement of principles:

While the plea bargaining process in the United States is broad and varied, the Task Force determined that it was vitally important to craft a single set of principles to guide plea practices generally. Those principles, which guide the Report’s more specific observations and recommendations, are listed below. These principles should be shared widely with members of the criminal justice community so that they might influence behavior and decision-making moving forward. These principles represent our conclusions about how plea bargaining should operate within our larger criminal justice system, a system based on the fundamental Constitutional right to trial.

Fourth Circuit panel joins minority of circuits giving broad reading to FIRST-STEP-amended safety valve provision

I have noted in a handful of prior posts some of the notable circuit rulings concerning the complicated language that Congress used in the FIRST STEP Act to expand the statutory safety valve enabling more federal drug defendants to benefit from its authorization for below mandatory-minimum sentences.  A helpful reader made sure I did not miss the latest opinion on this topic, this one coming from a Fourth Circuit panel in US v. Jones, No. 21-4605 (4th Cir. Feb 21, 2023) (available here).  Here is how the opinion starts and concludes:

The safety valve provision found in the First Step Act allows a district court to impose a sentence without regard to a mandatory minimum if certain criteria are met.  Relevant here, the court must find that the defendant “does not have . . . more than 4 criminal history points, . . . a prior 3-point offense, . . . and a prior 2-point violent offense” (the “criminal history characteristics”). 18 U.S.C. § 3553(f)(1) (emphasis added).  Cassity Jones has more than four criminal history points but does not have a prior three-point offense or two-point violent offense.  The district court concluded that a defendant must have all three criminal history characteristics to be ineligible for relief and applied the safety valve in sentencing Jones.  The sole issue on appeal is whether the word “and” in § 3553(f)(1) connecting the criminal history characteristics applies conjunctively or disjunctively.  We conclude that “and” is conjunctive and affirm the district court’s decision....

Ultimately, whether or not this is a prudent policy choice is not for the judiciary to decide: that determination lies solely with the legislative branch.  And “[t]he [G]overnment’s request that we rewrite § 3553(f)(1)’s ‘and’ into an ‘or’ based on the absurdity canon is simply a request for a swap of policy preferences.” Lopez, 998 F.3d at 440.  We cannot “rewrite Congress’s clear and unambiguous text” simply because the Government believes it is better policy for the safety valve to apply to fewer defendants. Id. “The remedy for any dissatisfaction with the results in particular cases lies with Congress and not with this Court.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 576 (1982); see also id. (“Congress may amend the statute; we may not.” (citations omitted)).

Accordingly, we are persuaded that the plain text of § 3553(f)(1) requires a sentencing court to find that a defendant has all three of the listed criminal history characteristics before excluding a defendant from safety valve eligibility.

Helpfully, a footnote early in the opinion details the circuit split over whether "and" means "and" or "and" means "or" in the context of this FIRST STEP Act revision of the application statute:

The circuits are split on this issue.  Compare United States v. Garcon, 54 F.4th 1274 (11th Cir. 2022) (en banc) (concluding that only a defendant with all three criminal history characteristics is ineligible under § 3553(f)(1)), and United States v. Lopez, 998 F.3d 431 (9th Cir. 2021) (same), with United States v. Palomares, 52 F.4th 640 (5th Cir. 2022) (concluding that having any one of the criminal history characteristics renders a defendant ineligible under § 3553(f)(1)), United States v. Pace, 48 F.4th 741 (7th Cir. 2022) (same), United States v. Pulsifer, 39 F.4th 1018 (8th Cir. 2022) (same), and United States v. Haynes, 55 F.4th 1075 (6th Cir. 2022) (same). We find the Eleventh and Ninth Circuits’ decisions convincing and join those circuits.

This split make plain that it is only a matter of time before SCOTUS takes up this matter. And I would hope that SCOTUS would move quickly: according to US Sentencing Commission data, thousands of federal drug defendants each year are being subject to different laws and treated differently at sentencing based on this statutory conflict.

US Supreme Court, in 5-4 ruling, rejects Arizona's claim of proper state-ground basis to uphold death sentence

In an interesting little ruling in a state capital case, the US Supreme Court this morning in Cruz v. Arizona, No. 21–846 (S. Ct. Feb 22, 2023) (available here), rejected an effort by Arizona to preserve a state death sentence on procedural grounds.  The Court's opinion was authored by Justice Sotomayor and joined by the Chief Justice and Justices Kagan, Kavanaugh and Jackson. Here is how the Court's opinion starts and ends:

Petitioner John Montenegro Cruz, a defendant sentenced to death, argued at trial and on direct appeal that his due process rights had been violated by the trial court’s failure to permit him to inform the jury that a life sentence in Arizona would be without parole. See Simmons v. South Carolina, 512 U.S. 154, 161–162 (1994) (plurality opinion); id., at 178 (O’Connor, J., concurring in judgment). Those courts rejected Cruz’s Simmons argument, believing, incorrectly, that Arizona’s sentencing and parole scheme did not trigger application of Simmons. See State v. Cruz, 218 Ariz. 149, 160, 181 P.3d 196, 207 (2008).

After the Arizona Supreme Court repeated that mistake in a series of cases, this Court summarily reversed the Arizona Supreme Court in Lynch v. Arizona, 578 U.S. 613 (2016) (per curiam), and held that it was fundamental error to conclude that Simmons “did not apply” in Arizona. 578 U.S., at 615.

Relying on Lynch, Cruz filed a motion for state postconviction relief under Arizona Rule of Criminal Procedure 32.1(g). That Rule permits a defendant to bring a successive petition if “there has been a significant change in the law that, if applicable to the defendant’s case, would probably overturn the defendant’s judgment or sentence.” Ariz. Rule Crim. Proc. 32.1(g) (Cum. Supp. 2022); see also ibid. (Cum. Supp. 2017).

The Arizona Supreme Court denied relief after concluding that Lynch was not a “significant change in the law.” 251 Ariz. 203, 207, 487 P. 3d 991, 995 (2021). The Arizona Supreme Court reached this conclusion despite having repeatedly held that an overruling of precedent is a significant change in the law.  See id., at 206, 487 P. 3d, at 994 (The “‘archetype of such a change occurs when an appellate court overrules previously binding case law’”).

The Court granted certiorari to address whether the Arizona Supreme Court’s holding that Lynch was not a significant change in the law for purposes of Rule 32.1(g) is an adequate and independent state-law ground for the judgment.  It is not....

In exceptional cases where a state-court judgment rests on a novel and unforeseeable state-court procedural decision lacking fair or substantial support in prior state law, that decision is not adequate to preclude review of a federal question.  The Arizona Supreme Court applied Rule 32.1(g) in a manner that abruptly departed from and directly conflicted with its prior interpretations of that Rule.  Accordingly, the judgment of the Supreme Court of Arizona is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

The  dissent was authored by Justice Barrett and joined by Justices Thomas, Alito and Gorsuch.  It ends this way:

The Court makes a case for why the Arizona Supreme Court’s interpretation of its own precedent is wrong.  If I were on the Arizona Supreme Court, I might agree.  But that call is not within our bailiwick.  Our job is to determine whether the Arizona Supreme Court’s decision is defensible, and we owe the utmost deference to the state court in making that judgment.  Cases of inadequacy are extremely rare, and this is not one.  I respectfully dissent.

"Severe Mental Illness and the Death Penalty: A Menu of Legislative Options"

The title of this post is the title of this notable new paper authored by Richard J. Bonnie and now available via SSRN.  Here is its abstract:

In 2003, the American Bar Association established a Task Force on Mental Disability and the Death Penalty to further specify and implement the Supreme Court’s ruling banning execution of persons with intellectual disability and to consider an analogous ban against imposing the death penalty on defendants with severe mental disorders.  The Task Force established formal links with the American Psychological Association, the American Psychiatric Association, and the National Alliance on Mental Illness and the final report was approved by the ABA and the participating organizations in 2005 and 2006.  This brief article focuses primarily on diminished responsibility at the time of the offense, summarizing the reasons why an exclusion for severe mental illness is needed and reviewing the key drafting issues that can be expected to arise in defining the clinical criteria for exclusion.  A key question is whether state trial judges and judges appointed to state appellate courts embrace their constitutionally grounded duties to assure sparing and humane administration of the death penalty.  Assiduous efforts to prevent execution of prisoners with severe mental illness is a necessary element of that judicial assignment.

A glass-half-empty look at federal compassionate release data since FIRST STEP Act

Extrapolating based on the latest data from the US Sentencing Commission, since passage of the FIRST STEP Act in December 2018, nearly 5000 persons have secured a reduced term of imprisonment for "extraordinary and compelling reasons" pursuant to so-called "compassionate release" motions under 3582(c)(1)(A).  This number, which amounts to an average of roughly 100 sentence reduction grants per month, is a 50-times increase from the average of two such reductions per month in the year before the FIRST STEP Act made it possible for prisoners to get their motions directly to courts.  (COVID is a big part of this story: USSC data show many hundreds of grants each month during the second half of 2020 and first part of 2021; grants have average closer to 50 per month through 2022.)

But while sentence reductions grants are much more common since passage of the FIRST STEP Act, they are still not common.  After all, roughly 400,000 persons have served federal prison sentences over the last five years, so only just over 1% of all federal prisoners have secured relief under 3582(c)(1)(A).  And this new NPR piece, headlined "Frail people are left to die in prison as judges fail to act on a law to free them," stresses data detailing how many are not securing relief.  Here are excerpts:

[D]ata from the U.S. Sentencing Commission shows judges rejected more than 80% of compassionate release requests filed from October 2019 through September 2022. Judges made rulings without guidance from the sentencing commission, an independent agency that develops sentencing policies for the courts.

The commission was delayed for more than three years because Congress did not confirm Trump's nominees and President Joe Biden's appointees were not confirmed until August.  As a result, academic researchers, attorneys, and advocates for prison reform said the law has been applied unevenly across the country. 

Later this week, the federal sentencing commission is poised to hold an open meeting in Washington, D.C. to discuss the problem. They'll be reviewing newly proposed guidelines that include, among other things, a provision that would give consideration to people housed in a correctional facility who are at risk from an infectious disease or public health emergency....

The First Step Act brought fresh attention to compassionate release, which had rarely been used in the decades after it was authorized by Congress in the 1980s.  The new law allowed people in prison to file motions for compassionate release directly with federal courts.  Before, only the director of the Federal Bureau of Prisons could petition the court on behalf of a sick prisoner, which rarely happened....

The number of applications for compassionate release began soaring in March 2020, when the World Health Organization declared a pandemic emergency.  Even as COVID devastated prisons, judges repeatedly denied most requests....  Data suggests decisions in federal courts varied widely by geography.  For example, the 2nd Circuit (Connecticut, New York, and Vermont) granted 27% of requests, compared with about 16% nationally.  The 5th Circuit (Louisiana, Mississippi, and Texas) approved about 10 %. Judges in the 11th Circuit (Alabama, Florida, and Georgia) approved roughly 11% of requests. In one Alabama district, only six of 141 motions were granted — or about 4% — the sentencing commission data shows....

Sentencing commission officials did not make leaders available to answer questions about whether a lack of guidance from the panel kept sick and dying people behind bars.  The new sentencing commission chair, Carlton Reeves, said during a public hearing in October that setting new guidelines for compassionate release is a top priority.

Interestingly this NPR piece, though seemingly about denials of sentence reductions, focuses on a drug offender with stage 4 cancer who did secure compassionate release last year.  I cannot help but wonder if the reporter was not quite able to find a compelling case in which a sentence reduction was denied for a "frail [person] left to die in prison," though I am sure there are such cases.

Brief dissent from the denial of cert on plea ineffectiveness from Justice Jackson

This morning's Supreme Court order list, which comes after the Justices were off for nearly a month, had no cert grants and had lots and lots and lots of cert denials.  One of those denials, in Davis v. United States, No. 22–5364, prompted this short dissent authored by Justice Jackson and joined by Justice Sotomayor.  Here are excerpts:

Our criminal justice system today is “for the most part a system of pleas, not a system of trials.” Lafler v. Cooper, 566 U.S. 156, 170 (2012). Against this backdrop, this Court has recognized that the loss of an opportunity for a favorable plea offer due to an attorney’s deficient performance can violate the Sixth Amendment right to effective counsel. Id., at 169–170; see also Missouri v. Frye, 566 U.S. 134 (2012). Petitioner Quartavious Davis alleged, and the Eleventh Circuit did not dispute, that he satisfied the first prong of the Strickland ineffective-assistance-of-counsel standard because his attorney failed to initiate plea negotiations with the Government. The question presented, then, is how can a defendant like Davis show “prejudice” as a result of this failure?...

The District Court concluded that Davis’s allegations in his 28 U. S. C. §2255 motion were insufficient, even if true, because he had not alleged “that a plea offer was made but not communicated to [him].”... Moreover, under the circumstances presented here, it was exceedingly likely that Davis would have prevailed with respect to the prejudice prong if the Eleventh Circuit had not applied that threshold requirement.  Davis’s allegations established that a favorable plea agreement was a strong possibility, even though no offer actually materialized, because each of Davis’s five codefendants had lawyers who negotiated favorable plea agreements with respect to the same series of armed robberies.  And while Davis (who was 18 or 19 years old at the time the crimes were committed) received a sentence of approximately 160 years of imprisonment after his attorney took him to trial, all of Davis’s codefendants received sentences of less than 40 years of imprisonment due to plea agreements that enabled the District Court to impose a sentence below the mandatory minimum. T he District Court’s statements at sentencing were also noteworthy: The judge specifically asserted that, while he thought the appropriate sentence for Davis was 40 years, he was bound by the consecutive mandatory minimums.

The Eleventh Circuit gave short shrift to these alleged facts, and others, which suggest that Davis was harmed by his counsel’s failure to initiate plea negotiations because it applied a bright-line rule that prejudice cannot be shown in the absence of a plea offer.  This petition presents the Court with a clear opportunity to resolve a Circuit split regarding whether having an actual plea offer is an indispensable prerequisite to making the necessary showing of prejudice.  I would grant certiorari to resolve that issue.

How long until the Supreme Court takes up another Second Amendment case after Bruen?

As detailed in a number of prior posts, the Supreme Court's landmark Bruen Second Amendment decision has created considerable legal uncertainty, especially for various federal gun control laws.   And, as two recent press pieces highlight, it seems like only a matter of time, given the lower-court churn over application of Bruen, before the Justices are going to have to engage with all the post-Bruen jurisprudence.

From the AP, "Turmoil in courts on gun laws in wake of justices’ ruling."  An excerpt:

Courts in recent months have declared unconstitutional federal laws designed to keep guns out of the hands of domestic abusers, felony defendants and people who use marijuana.  Judges have shot down a federal ban on possessing guns with serial numbers removed and gun restrictions for young adults in Texas and have blocked the enforcement of Delaware’s ban on the possession of homemade “ghost guns.”

In several instances, judges looking at the same laws have come down on opposite sides on whether they are constitutional in the wake of the conservative Supreme Court majority’s ruling.  The legal turmoil caused by the first major gun ruling in a decade will likely force the Supreme Court to step in again soon to provide more guidance for judges.

From USA Today, "As nation reels from Michigan State shooting, courts wrestle with access to guns."  An excerpt:

The Supreme Court has said a lot recently about what the Second Amendment means. The next question for the justices may be: Who does it not apply to?

A series of criminal cases percolating in lower federal courts are striking at a question about when the government may deny someone -- such as a person convicted of a nonviolent felony -- access to a gun.  Experts on both sides of the gun debate say the question is likely to make its way to the Supreme Court soon.

For various reasons, I suspect the Justices will be inclined to avoid taking up these matters for as long as possible.  It was, after all, a dozen years between the the last major Second Amendment ruling (McDonald) and Bruen.  But, in part because numerous lower-court rulings are striking down numerous federal criminal laws, I suspect the Justices will have to get back to these matters pretty soon. 

"Pretty soon" in Supreme Court timelines likely still means a year or two, perhaps even longer. But I welcome in the comments any and all predictions as to when, and what kind of, a case ultimately serves as the vehicle for SCOTUS to clarify just where Bruen will take Second Amendment jurisprudence.

Renewed bipartisan effort to end the federal crack/powder sentencing disparity via the EQUAL Act

During the last Congress, I became way too optimistic about the prospect of passage of the EQUAL Act to entirely eliminate the federal crack and powder cocaine sentencing disparity. But after the US House voted overwhelmingly, 361-66, to pass the EQUAL Act and after the Senate version secured 11 GOP sponsors, I really thought nearly four decades of a misguided sentencing structure could be coming to an end.  But, as detailed in posts here and here from the first half of 2022, opposition from some key Republican Senators prevented the bill from getting to the desk of President Biden. 

I am now inclined to be much less optimistic about the EQUAL Act's chance in the new Congress.  But I am still pleased to see bipartisan efforts continuing, as evidenced by this new press release from Senator Cory Booker.  Here are some details:

Today, U.S. Senators Cory Booker (D-NJ), chair of the Senate Judiciary Subcommittee on Criminal Justice and Counterterrorism, and Dick Durbin (D-IL), chair of the Senate Judiciary Committee, along with Representatives Kelly Armstrong (R-ND) and Hakeem Jeffries (D-NY), the House Democratic Leader, announced the reintroduction of the bipartisan Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act, legislation to eliminate the federal crack and powder cocaine sentencing disparity and apply it retroactively to those already convicted or sentenced. 

Joining Booker and Durbin as original cosponsors on the EQUAL Act in the Senate are Senators Lindsey Graham (R-SC), the ranking member of the Senate Judiciary Committee, Thom Tillis (R-NC), Chris Coons (D-DE), Cynthia Lummis (R-WY), and Rand Paul (R-KY).  Joining Armstrong (R-ND) and Jeffries (D-NY) as original cosponsors on the EQUAL Act in the House are Representatives Don Bacon (R-NE) and Bobby Scott (D-VA).

The sentencing disparity between crack and powdered cocaine, at one point as high as 100 to 1, helped fuel the mass incarceration epidemic.  According to the U.S. Sentencing Commission, in Fiscal Year 2021, 77.6% of crack cocaine trafficking offenders were Black, whereas most powder cocaine trafficking offenders were either white or Hispanic....

"Eliminating the crack-powder cocaine sentencing disparity is a step toward applying equal justice under the law,” said Representative Armstrong. “The EQUAL Act is sound, bipartisan criminal justice reform, that received overwhelming support in the House last Congress. It’s long overdue that we pass this bill and finally end the disparity to make a real difference for families across the nation.”...

Background

After the passage of the Anti-Drug Abuse Act of 1986, sentencing for crack and powder cocaine offenses differed vastly.  For instance, until 2010, someone convicted of distributing 5 grams of crack cocaine served the same 5-year mandatory minimum prison sentence as someone convicted of distributing 500 grams of powder cocaine.  Over the years, this 100:1 sentencing disparity has been widely criticized as lacking scientific justification. Furthermore, the crack and powder cocaine sentencing disparity has disproportionately impacted people of color. 

The Fair Sentencing Act, introduced by Senator Durbin, passed in 2010 during the Obama administration and reduced the crack and powder cocaine sentencing disparity from 100:1 to 18:1.  In 2018, Senators Booker and Durbin and Representative Jeffries were instrumental in crafting the First Step Act, which made the Fair Sentencing Act retroactive. 

Booker, Durbin, Armstrong, and Jeffries first introduced the EQUAL Act to eliminate the disparity once and for all in 2021.  In September 2021, the legislation passed the House with a wide bipartisan margin, 361-66.  In the Senate, the legislation ultimately attracted 11 Republican and 24 Democratic cosponsors.

The full text of the legislation can be viewed here.

A few of many prior posts on the EQUAL Act:

• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences
• Is it foolish to hope, after now 35 years, that Congress will soon fix the crack-powder federal sentencing disparity? 
• Why is getting the EQUAL Act through the US Senate proving so challenging? 
• GOP Senators introduce competing crack/powder sentencing reform bill tougher than EQUAL Act
• Discouraging report on a possible last gasp for this Congress to pass the EQUAL Act 
• New year and new Congress brings a new effort to advance new EQUAL Act 

Could Alabama have an execution using nitrogen gas in 2023?

The question in the title of this post is prompted by this new AP piece headlined "Alabama 'close' to finishing nitrogen execution protocol."  Here are the basics:

The head of Alabama's prison system said Wednesday that a protocol for using nitrogen gas to carry out executions should be finished this year. "We're close. We're close," Alabama Commissioner John Hamm said of the new execution method that the state has been working to develop for several years.

He said the protocol "should be" finished by the end of the year. Hamm made the comment in response to a question from The Associated Press about the status of the new execution method. Once the protocol is finished, there would be litigation over the untested execution method before the state attempts to use it.

Nitrogen hypoxia is a proposed execution method in which death would be caused by forcing the inmate to breathe only nitrogen, thereby depriving them of the oxygen needed to maintain bodily functions. Alabama, Oklahoma and Mississippi have authorized the use of nitrogen hypoxia, but it has never been used to carry out a death sentence.

Alabama lawmakers in 2018 approved legislation that authorized nitrogen hypoxia as an alternate execution method. Supporters said the state needed a new method as lethal injection drugs became difficult to obtain. Lawmakers theorized that death by nitrogen hypoxia could be a simpler and more humane execution method. But critics have likened the untested method to human experimentation.

The state has disclosed little information about the new execution method. The Alabama Department of Corrections told a federal judge in 2021 that it had completed a "system" to use nitrogen gas but did not describe it.

Although lethal injection remains the primary method for carrying out death sentences, the legislation gave inmates a brief window to select nitrogen as their execution method. A number of inmates selected nitrogen. Hamm also said a review of the state's execution procedures should be completed, "probably within the next month."

As the article highlights, inevitable litigation over a novel execution method likely means the sensible answer to the question in the title of this post is "Quite probably no." But, given the long-standing debates over execution methods, it is still interesting to see Alabama claim it is getting closer to pioneering a new method.

"Vigilantism and 'Public Confidence': The Pertinence of Public Opinion to Sentencing"

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

Public confidence in courts, judges, and sentencing, and belief in the legitimacy of legal institutions, as exists in Scandinavia, Germany, and the Netherlands, are self-evidently good things.  Politicians in England and Wales often avow the importance of “public confidence” in explaining why they promote or adopt especially repressive (e.g., Antisocial Behaviour Orders, Imprisonment for Public Protection) or illiberal (e.g., abolition of double jeopardy doctrine) legislation.  Three non-trivial issues lurk.  First, the rhetoric gets the causal ordering wrong.  As Justice Auld observed, public confidence is not “an aim of a good criminal justice system; but a consequence of it.”  Second, there is an underlying belief or assumption that “the public” disapproves current practices and wants changes made.  Masses of research show, however, that most depictions of the public’s views are unreliable and provide inadequate bases for policy making.  The public knows astonishingly little about criminal justice, opinions are shaped by media coverage and sensationalism, and considered views are not relentlessly punitive.  Third, there is more than a whiff of vigilante thinking in the idea that public opinion should be the basis for laws that prescribe or judicial decisions that concern punishments of particular people for particular crimes.

New Pennsylvania Gov announces his capital punishment abolitionist plans

Pennsylvania has over 100 condemned murderers on its death row, though it has not completed an execution in nearly a quarter century.  And, as reported in this AP piece, the new Governor of the Keystone State is committed to keep the state execution-free.  Here are the details:

Democratic Gov. Josh Shapiro said Thursday he will not allow Pennsylvania to execute any inmates while he is in office and called for the state’s lawmakers to repeal the death penalty.

Shapiro, inaugurated last month, said he will refuse to sign execution warrants and will use his power as governor to grant reprieves to any inmate whose execution is scheduled.  In doing so, he is exercising an authority used for eight years by his predecessor, Gov. Tom Wolf, to effectively impose a moratorium on the death penalty in a state where it has been sparsely used.

Shapiro went further, asking lawmakers to repeal the death penalty and calling it fallible and irreversible.  “Today, I am respectfully calling on the General Assembly to work with me to abolish the death penalty once and for all here in Pennsylvania,” Shapiro said in a news conference at Mosaic Community Church in Philadelphia.  The state, he said, “should not be in the business of putting people to death.”...

On the campaign trail last year for governor, Shapiro had said he was morally opposed to the death penalty, even though he had run for attorney general in 2016 as a supporter of the death penalty for the most heinous cases.

While Wolf was governor from 2015 until last month, judges delivered eight more death sentences.  In the meantime, Wolf issued eight reprieves to inmates who had been scheduled to be put to death.  Wolf had said he would continue the reprieves until lawmakers addressed inequities in the use of the death penalty, but lawmakers never did and Wolf’s reprieves remain in effect.

Wolf’s use of reprieves was upheld by the state Supreme Court in a legal challenge brought by county prosecutors, who argued that Wolf was unconstitutionally turning what had been intended to be a temporary tool into a permanent one.

Pennsylvania has 101 men and women on its shrinking death row, according to statistics from the Department of Corrections.  The state has executed three people since the death penalty was reinstated in 1976, as courts and now governors have blocked every other death sentence thus far. All three men who were executed gave up on their appeals voluntarily.  The state’s most recent execution took place in 1999.

Some notable SCOTUS sentencing stories from the relist watch

After an extended hiatus, the Supreme Court gets back in action next week.  In turn, John Elwood is back to keeping up with the cert pool through his terrific SCOTUSblog posts providing "Relist Watch."  And this week's "Relist Watch" installment has a couple of stories that all sentencing fans will find interesting:

The Supreme Court will meet this Friday for the first time in nearly a month to consider whether to grant review in new cases....

One other curious thing about our last installment’s relists: There were five petitions challenging the constitutionality of sentencing criminal defendants based on conduct the jury acquitted them of committing.  Those cases are just sitting there on the court’s docket, with no further action by the Supreme Court since it distributed them for the Jan. 20 conference.  The court generally doesn’t announce what it’s doing with pending petitions, so we have no choice but to speculate here.  But near as we can tell, the court appears to be holding those cases to see whether the U.S. Sentencing Commission acts on a pending proposal to place restrictions on federal courts’ consideration of acquitted conduct at sentencing.  One of the five petitioners, Dayonta McClinton (whom I represent), argues that the Sentencing Commission’s proposal is woefully inadequate to resolve the issue, but it still may explain the court’s inaction.  Things may become clearer down the road.

That brings us to new business. There are 423 petitions and motions pending on the Supreme Court’s docket for this Friday’s conference. Two of those cases are newly relisted....

The second new relist, Davis v. United States, is far more conventional.  Petitioner Quartavious Davis was sentenced to 159 years of imprisonment for a series of seven Hobbs Act robberies he committed over a two-month period when he was 18 and 19 years old.  Although Davis went to trial, his five co-defendants all pleaded guilty and received much shorter sentences.  Davis argues that his attorney rendered ineffective assistance by failing to pursue and negotiate a plea agreement with the government, and by failing to render adequate advice to him regarding whether to plead guilty or go to trial.  Davis contends he would have pleaded guilty if he had been advised properly.  Although the court of appeals concluded Davis could not show prejudice absent an allegation that the government had offered him a plea deal, Davis contends it was enough to show that his similarly situated co-defendants were able to negotiate plea agreements, suggesting that there is no reason the government would not have been willing to extend Davis the same benefits. 

Buffalo mass shooter formally sentenced to LWOP in New York state court

Though New York in 1995 brought back the state's death penalty legislatively,  New York's highest court in June 2004 decided that the state's death penalty statute violated the New York Constitution.  Consequently, the harshest sentence that a mass killer in New York can get under state law is life without parole, and this New York Times piece reports on just such a high-profile sentencing today in Buffalo. Here are some details:

The gunman in a racist massacre at a Buffalo supermarket last year was sentenced to life in prison without the chance of parole on Wednesday, after apologizing for his attack amid a torrent of raw emotions from the victims’ families, including one man who lunged at him in court.

“You will never see the light of day as a free man again,” the judge, Susan Eagan, said after reading a statement about the harmful effects of institutional racism and white supremacy, calling it an “insidious cancer on our society and nation.”

The sentence reflected the outcome of a guilty plea to 10 counts of first-degree murder and a single count of domestic terrorism motivated by hate, which carries a penalty of life imprisonment without parole.  Judge Eagan’s sentence came after a brief apology by the gunman, Payton Gendron, who said he was “very sorry” for the attack and blamed online content for the shooting rampage on May 14, in which 10 people were killed, all of them Black, and three people injured. He said he didn’t want to inspire other racist killings....

As Mr. Gendron spoke, a member of the audience began screaming and cursing at him, the second such interruption in an emotionally raw hearing. Earlier, the sentencing was dramatically interrupted and the courtroom cleared after a man lunged at the defendant.  Judge Eagan emptied the courtroom and reconvened the hearing a short time later, pleading for decorum while saying she understood the anger toward the gunman. “We are all better than that,” she said. Before Mr. Gendron heard his sentence, families of the victims testified as to the insurmountable damage done by the attack.

“You are a cowardly racist,” said Simone Crawley, whose grandmother Ruth Whitfield, 86, was killed in the shooting. She asked for accountability for others who aided or turned a blind eye to Mr. Gendron’s growing radicalization....

Zeneta Everhart, whose son Zaire was injured, but survived, said: “The world says you have to forgive in order to move on.  But I stand before you today to say that will never happen.”

Kimberly Salter’s husband, Aaron Salter, a retired Buffalo police officer, did not survive: He was shot and killed in the attack.  Ms. Salter quoted the Bible as she stood just feet from Mr. Gendron, who wore an orange jumpsuit and spectacles. “You will reap,” she said, “what you sow.”...

Mr. Gendron, 19, pleaded guilty in November to the state charges.  He is also charged with federal hate crimes and weapons violations, some of which could carry the death penalty if the Justice Department decided to seek it.  Those charges are still pending....

His video feed of the attack was briefly online, before being shut down by social media companies.  Still, the Buffalo attack remains one of the nation’s deadliest racist shootings, joining a list that includes the killing of nine Black parishioners at a church in Charleston, S.C., in 2015; an antisemitic rampage in Pittsburgh, at the Tree of Life synagogue in 2018 where 11 people were killed; and an attack at a Walmart in El Paso in 2019 in which more than 20 people were killed by a man who had expressed hatred of Latinos.

Latest issue of Federal Sentencing Reporter now available: "New U.S. Sentencing Commission Gets to Work"

As mentioned in this post a few months ago, the latest volume of the  Federal Sentencing Reporter  has a number of issues filled with a number of commentaries providing all sorts of advice for the new US Sentencing Commission.  The first of these FSR issues was titled "21st Century Advice to the New Commissioners" and can be found online here.  The follow-up FSR issue is titled "New U.S. Sentencing Commission Gets to Work," and it includes another set of original articles and related materials providing additional advice for the new USSC.   This new issue is available online here, and it begins with this introductory essay authored by me and Prof Steve Chanenson under the title "A Big Agenda and a Big Question for the New Sentencing Commission." Here is the abstract of this introductory essay:

Recent Senate confirmation of President Biden’s nominees to the U.S. Sentencing Commission transformed a long-hobbled agency into a refreshed expert body with a new opportunity to reexamine federal sentencing law and practice.  The new Commission has no shortage of large and small issues to tackle in the months and years ahead, and it faces not only a full and substantive agenda, but also a big operational question as it gets to work on its priorities.  The Commission has long stressed consensus in developing guideline amendments and related policy work.  But now with a full Commission of seven members when only four Commissioner votes are needed to advance guideline amendments and other formal policy decisions, it is possible that some Commissioners may not see a practical reason for the new Commission to always proceed by consensus and to advance only unanimously supported amendments.  A new Commission with a new willingness to move forward with amendments and policy initiatives, even in the absence of consensus, could prove to be a much bolder Commission.  But is bolder necessarily better, in terms of substantive work products and the ability to advance and implement proposed reforms?  Would a U.S. Sentencing Commission acting without consensus be more politically vulnerable in these divided and divisive times?

Prior related post:

• Latest issues of FSR providing new advice to a new US Sentencing Commission (and lots more)

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

The question in the title of this post is my reaction to this lengthy new Washington Post article headlined "Justice Department standards on federal death penalty called confusing."  Here are excerpts (with a few points highlighted for commentary to follow):

The Justice Department’s disparate approaches in a pair of mass-killing cases is generating accusations that the Biden administration has failed to press for the elimination of capital punishment and is not applying clear standards in judging who, if anyone, should face the death penalty.

On Monday, federal prosecutors will begin the death penalty phase in the trial of Sayfullo Saipov, who was convicted last month on murder and terrorism charges for fatally hitting eight pedestrians with a truck on a New York City bike path in 2017.  That comes days after the Justice Department announced an agreement allowing Patrick Crusius, who pleaded guilty to killing 23 people and injuring 22 while targeting Mexicans during a mass shooting rampage at a Walmart in El Paso in 2019, to avoid the death penalty.  He faces life in prison....

Analysts said the Justice Department’s decisions in those cases and several others make it difficult to detect a consistent policy more than two years into the Biden presidency.  As a candidate, Biden made promises to push for legislation banning capital punishment over concerns about how federal executions are carried out and how prosecutors have disproportionately targeted racial minorities and the poor.

Biden has said little about the issue since taking office. Attorney General Merrick Garland has deauthorized 25 death penalty cases that were started under previous administrations, and the Justice Department has not authorized any new capital cases since he took over in 2021.

The Justice Department in 2021 and 2022 continued to back capital convictions in the face of appeals from Dylann Roof, a White man who fatally shot nine Black parishioners in Charleston, S.C., in 2015, and Dzhokhar Tsarnaev, who orchestrated, along with his older brother, a bombing that killed three at the Boston Marathon in 2013. Federal courts upheld both of their death penalty sentences.

Meantime, seven federal capital cases, including Saipov’s, remain active, Justice officials said.  Among them is the government’s prosecution of Robert Bowers, who is set to stand trial in April on charges related to the mass shooting that slaughtered 11 people at the Tree of Life synagogue in Pittsburgh in 2018.

“It’s really hard to say what’s going on,” said Monica Foster, a federal public defender representing Jairo Saenz, an MS-13 gang member who, along with his brother Alexi, are facing capital charges in connection with seven killings in Long Island in 2016.  Federal prosecutors announced in 2020 that they would seek the death penalty for both men; Foster, who recently took over Jairo Saenz’s defense, said she intends in March to ask Garland to withdraw the death penalty — a formal Justice Department process known as a deauthorization request.  Lawyers for Alexi Saenz said they, too, will seek deauthorization....

“They clearly are willing to walk back prior authorizations, so then it’s just a question of when?” said Nathan Williams, a former federal prosecutor who helped oversee Roof’s conviction in 2015.  “What’s distinguishing those cases, the ones they dismissed the notice on, from the cases of Bowers or Roof or Tsarnaev?  My guess is that they are less egregious cases. But then on the more egregious ones, are we seeing a general policy or a reflection of individual decisions on cases?”

The answer could have a direct bearing on another high-profile case, as the Justice Department is still deliberating over whether to pursue a capital case against Payton Gendron, a White man who faces 27 hate-crime and gun-related offenses in the fatal shooting of 10 Black people in a Buffalo grocery store last year.  Gendron live-streamed his attack and is alleged to have written a 180-page manifesto spouting white supremacist conspiracy theories and anti-Black and anti-Jewish rhetoric, while laying out plans for the assault.

“I was more than a little surprised when I saw what happened” in the Saipov bike path case, said Terrence Conners, a lawyer who represents victims’ families in the Gendron case.  The families have expressed split opinions over whether Gendron should face capital punishment. “The expressed policy of the Biden administration and the policy of Merrick Garland has been anti-death penalty,” Connors said. “With the horrible events in Buffalo and the racial animus and the predetermination [from Gendron], it may be a case that changes their minds.”

The Justice Department has long-standing policies governing how decisions on capital cases are made. The process, which typically takes more than a year, includes recommendations from a capital case committee in Washington, U.S. attorneys and the department’s Civil Rights Division, along with input from victims’ families, defense attorneys and community leaders.... Administration officials cautioned that because Garland has not authorized any new death penalty cases, it does not mean he is firmly opposed to doing so.  The officials spoke on the condition of anonymity, citing active legal cases....

Cassie Stubbs, director of the ACLU’s Capital Punishment Project, suggested Garland might be distinguishing between honoring decisions in capital cases made by prior administrations, while staking out his own legacy in not approving any new cases under his watch....

In announcing Crusius’s plea deal in El Paso, under which he faces 90 consecutive life sentences, assistant U.S. Attorney Ian Hanna acknowledged that the defendant has schizoaffective disorder, a signal that the government viewed the disability as a mitigating factor against capital punishment.

Crusius’s legal team had hired an outside expert, who made the diagnosis, and the Justice Department agreed with the findings, in part because the expert was someone that federal authorities also have consulted on cases and trusted, according to a federal government official who spoke on the condition of anonymity to discuss private deliberations. The Justice Department’s position in the Crusius case stands in contrast to the decision made by El Paso’s district attorney’s office, which is seeking the death penalty in the state’s murder case against Crusius, of Allen, Tex.

Twenty-three states have abolished the death penalty, while three — Oregon, Pennsylvania and California — have a moratorium against it. The number of state executions has fallen from 60 in 2005 to 18 in 2022, according to the Death Penalty Information Center. Texas has executed 581 people since 1977, nearly five times more than Oklahoma, the state with the second-most executions.

The lines I have emphasized from these excerpts make it not "confusing" for me to make sense of the current administration's approach to capital punishment.  For starters, two years in, AG Garland has not authorized any new federal capital cases. But, showing respect for the fact that Congress has not repealed the death penalty, he also has not announced that he would never seek a federal capital charge.  So why not seek capital punishment for Patrick Crusius?  In addition to the fact the mental health issues, the feds could be confident that a capital prosecution could be pursued, perhaps a lot more efficiently, by state prosecutors in Texas, a state with a considerable capital track record. (The Buffalo mass shooting, in a state without the death penalty, presents a harder question and it will be interesting to see AG Garland's capital decision there.)

Next, for ongoing cases, it makes perfect sense that AG Garland, exercising his prosecutorial discretion, would "deauthorize" capital prosecution in the "less egregious" cases but not in the "more egregious" cases.  I am not familiar with all the facts in all recent federal capital cases, but the idea that federal capital cases would keep moving forward in the most horrific mass killings and would not in less extreme cases seems entirely in keeping with a view of the death penalty being reserved for "the very worst of the worst."  Moreover, in mass killing cases, there are likely a greater number of victims and victims' family members who may express a strong interest in having the federal capital cases continued.

Of course, capital punishment abolitionists are always going to be grumpy when any capital case continues and capital punishment advocates are often going to be troubled when certain capital cases are not aggressively pursued.  But, the fact that AG Garland is taking a cautious case-by-case approach to capital cases does not make his standards inherently confusing or unprincipled.  Indeed, considering each case carefully on its own merits seems absolutely essential to the effective administration of justice in capital and non-capital cases.

"Against Prosecutors" and a lot of notable responses thereto

I recall reading a few years ago, but maybe not blogging about, I. Bennett Capers provocative 2020 essay titled simply "Against Prosecutors."  Here is part of the essay's introduction:

What would it mean to turn away from public prosecutors and not rely on the criminal justice system as the first responder to address social ills, such as mental illness and poverty (two of the main drivers of our prison industrial complex)?  More radically, what would it mean to turn away from state-controlled prosecution as the primary way to address crime? What would it mean to replace a system where prosecutors hold a monopoly in deciding which cases are worthy of pursuit with a system in which “we the people,” including those of us who have traditionally had little power, would be empowered to seek and achieve justice ourselves?

This Article attempts to answer these questions. It begins in Part I with the enormous, monopolistic power public prosecutors wield.  But this power is not inevitable. Indeed, public prosecutors are not even inevitable. This is the main point of Part II, which surfaces the rarely discussed history of criminal prosecutions in this country before the advent of the public prosecutor, when private prosecutions were the norm and in a very real sense criminal prosecutions belonged to “the people.”  Part II then demonstrates that our history of private prosecutions and the turn to public prosecutions is more than just a curious footnote, as this very history has, in turn, shaped criminal law and justice as we know it. Part III, in many ways the core of this Article, makes the argument for turning away from public prosecutors and restoring prosecution to the people.  It also returns to the question that motivates this Article: what benefits might accrue if victims had the option to pursue criminal charges through private prosecution or public prosecution? Part III argues there would be several benefits, including democratizing criminal justice and, quite possibly, reducing mass incarceration.

This essay is fresh in mind in part because I just saw an on-line symposium in which seven scholars have written their own essays in response (and with the author providing a final word). Here are links to these new works:

Angela J. Davis, "The Perils of Private Prosecutions"

Benjamin Levin, "Victims’ Rights Revisited"

Carolyn B. Ramsey, "Against Domestic Violence: Public and Private Prosecution of Batterers"

Corey Rayburn Yung, "Private Prosecution of Rape"

Jeffrey Bellin, "A World Without Prosecutors"

Jenia I. Turner, "Victims as a Check on Prosecutors: A Comparative Assessment"

Roger A. Fairfax Jr.. "For Grand Juries"

I. Bennett Capers, "Still Against Prosecutors"

Maine momentum for restoring parole as part of broader focus on rehabilitation

This local article, headlined "Maine legislators push to reestablish parole, citing disparities in criminal justice system," reports on some interesting criminal justice reform developments in the Pine Tree State.  Here are excerpts (with links from the original):

With the release of a comprehensive 240-page report, the return of parole to Maine’s correctional system seems more likely, though still far from a sure thing.

The Maine Legislature’s parole study commission convened last year issued its final report on Jan. 30 that includes an ambitious set of recommendations, though not all received unanimous support.

The commission was an outgrowth of a 2021 bill, LD 842, from then-Rep. Jeff Evangelos (I-Friendship), who proposed reinstating parole opportunities for all those incarcerated in state institutions. 

Maine’s Legislature first established a system of parole in 1913, allowing for an incarcerated person’s sentencing period to be reevaluated by corrections officers after serving a minimum length of time.  Parole was abolished in Maine in 1976.

A unanimous recommendation came for expansion of the existing early release program, which allows inmates with 30 months or fewer of their sentence to serve the remainder in home confinement.... 

Evangelos convinced commissioners to include reinstatement of a weekend furlough program.  “It would allow fathers to get to know their kids, and mothers to hold their children, sometimes for the first time,” he said.

Also gaining strong support was a new Criminal Law Revision Commission, which once made frequent suggestions for legal changes, but lapsed in 2005.

On the critical vote for parole, the commissioners divided 7-2 in favor, with Corrections Commissioner Randall Liberty and Sen. Scott Cyrway (R-Winslow) opposed.  The co-chairs, Sen. Craig Hickman (D-Winthrop) and Rep. Charlotte Warren (D-Hallowell) voted in the majority.  Of the four legislators on the commission, only Hickman is still serving in the same position.  The others were term-limited....

[T]he report concluded that its work “focused primarily on issues surrounding the reestablishment of parole, but parole is only one piece of a much larger conversation . . . The work of this commission is a beginning, not an end.”

The Judiciary Committee that received the report can introduce legislation to adopt its findings. Advocates have already submitted their own bill, LD 178, sponsored by Sen. Pinny Beebe-Center (D-Rockland), a concept draft.

Evangelos said the bill’s language will eventually include full implementation of the commission’s findings, including hearing eligibility for all inmates, and specific victim’s rights provisions.  He’s optimistic about passage of a strong bill, pointing to support from Rep. Billy Bob Faulkingham (R-Winterport), the House minority leader.  “We heard from supporters all over the country,” Evangelos said. “Of the dozens of people who testified, only two were opposed. People want a system that recognizes rehabilitation, and provides hope.”     

"Public support for second look sentencing: Is there a Shawshank redemption effect?"

The title of this post is the title of this new article by multiple authors just published in Criminology & Public Policy.  Here is its abstract

Research Summary

Washington, DC has implemented second look sentencing.  After serving a minimum of 15 years in prison, those convicted of a serious offense committed while under the age of 25 years can petition a judge to take a “second look” and potentially release them from incarceration.  To examine both global and specific support for second look sentencing, we embedded experiments in a 2021 MTurk survey and in a follow-up 2022 YouGov survey.  Two key findings emerged.  First, regardless of whether a crime was committed under 18 years or under 25 years of age, a majority of the public supported second look sentencing.  Opposition to the policy was low, even for petitioners convicted of murder.  Second, as revealed by vignette ratings, respondents were more likely to support release when a petitioner “signaled” their reform (e.g., completed a rehabilitation program, received a recommendation from the warden) and had the support of the victim (or their family).

Policy Implications

The critique of mass imprisonment has broadened from a focus on the level of incarceration to the inordinate length of sentences being served by some prisoners.  Policies are being proposed to reconsider these long sentences and to provide opportunities for earned release.  Second look sentencing in DC is one of these reforms.  Our research suggests that many members of the public believe in a “Shawshank redemption” effect — that those committing serious crimes as a teenager or young adult can mature into a “different person” and warrant a second look, with the possibility of early release if they have earned it.  A key issue is likely to be how much weight is accorded to the preference of victims or their families in any release decision.

After recent wave of notable rulings, a wave of new Second Amendment commentary

When the Supreme Court's landmark ruling in Bruen recast the Second Amendment entirely around "the Nation’s historical tradition of firearm regulation," I had an inkling that a new originalist jurisprudence might prove quite disruptive to a number of federal criminal laws (see post-Bruen posts here and here).  With recent notable rulings finding unconstitutional the gun possession prohibitions in § 922(g)(3) and § 922(g)(8), I have seen a number of new commentaries discussing Second Amendment jurisprudence after Bruen:

From Law & Liberty, "Implementing Bruen"

From Salon, "Phony constitutional 'originalism' is likely to kill women after Second Amendment decision"

From Slate, "Brett Kavanaugh May Have Quietly Sabotaged Clarence Thomas’ Extreme Gun Ruling"

From The Trace, "Bruen Takes Gun Law Back to a Time Before ‘Domestic Violence’"

From the Washington Examiner, "Reefer madness: Second Amendment gun rights shouldn’t go to pot"

Also, the latest episode of one of my favorite the legal podcasts, Advisory Opinions, takes a deep dive into modern Second Amendment jurisprudence in this pod titled "The Problem With 'History and Tradition'."

Pre-gaming the State of the Union with a few White House Fact Sheets talking a bit about crimes and punishment

I may not get a chance to watch Prez Biden's State of the Union address tonight, and I am not really expecting it will cover any big sentencing issues (or small sentencing issues for that matter).  That said, I do expect some crime and punishment matters to get some air time during a speech that likely will make some mention of policing practices and the nation's drug overdose problems.  And my expectations have already been somewhat confirmed even hours before the SotU speech via these releases from the White House:

FACT SHEET: The Biden-⁠Harris Administration’s Work to Make Our Communities Safer and Advance Effective, Accountable Policing

FACT SHEET: In State of the Union, President Biden to Outline Vision to Advance Progress on Unity Agenda in Year Ahead

Here are some items pulled from these "fact sheets" — which, I must say, do not actually read as "fact sheets — that may be of particular interest to sentencing fans:

Investing in Crime Prevention. The President’s Safer America Plan calls on Congress to invest $15 billion in services that help prevent crime from occurring in the first place, including: mental health and substance use disorder services, such as co-responder and alternative responder programs where social workers and other professionals respond to calls that should not be the responsibility of law enforcement; job training and employment opportunities, including for teenagers and young adults; housing and other supportive social services to individuals who are homeless; and reentry services so people leaving prison can stabilize their lives and avoid recidivism.  The Plan also incentivizes the reform of laws that increase incarceration without reducing public safety and lift almost all federal restrictions on eligibility for vital benefits (such as food, income, and disability-based assistance) for people with prior convictions....

Addressing a failed approach to marijuana and crack cocaine. The criminalization of marijuana possession has upended too many lives — for conduct that is now legal in many states. While white, Black and brown people use marijuana at similar rates, Black and brown people are disproportionately in jail for it. In October 2022, the President announced a full, unconditional, and categorical pardon for prior federal simple marijuana possession offenses.  This pardon lifts barriers to housing, employment, and educational opportunities for thousands of people with prior convictions under federal and D.C. law for simple marijuana possession.  The President also called on every state governor to follow his lead, as most marijuana prosecutions take place at the state level.  And because this Administration is guided by science and evidence, he called on the Secretary of HHS and the Attorney General to review how marijuana is scheduled under federal law.

In addition, the Safer America Plan calls on Congress to end once and for all the racially discriminatory sentencing disparity between crack cocaine and powder cocaine offenses — as President Biden first advocated in 2007 — and make that change fully retroactive.  This step would provide immediate sentencing relief to the 10,000 individuals, more than 90 percent of whom are Black, currently serving time in federal prison pursuant to the crack/powder disparity.  As an initial step, the Attorney General has issued guidance to federal prosecutors on steps they should take to promote the equivalent treatment of crack and powder cocaine offenses, but Congress still needs to act....

Beating the Opioid and Overdose Epidemic by Accelerating the Crackdown on Fentanyl Trafficking and Public Health Efforts to Save Lives
Last year, President Biden announced his plan to beat the opioid epidemic as part of his Unity Agenda, because opioid use and trafficking affect families in red communities and blue communities and every community in between.  Under President Biden’s leadership, overdose deaths and poisonings have decreased for five months in a row — but these deaths remain unacceptably high and are primarily caused by fentanyl....  [T]he President will announce in the State of Union that his administration will:...

• Work with Congress to make permanent tough penalties on suppliers of fentanyl.  The federal government regulates illicitly produced fentanyl analogues and related substances as Schedule I drugs, meaning they are subject to strict regulations and criminal penalties.  But traffickers have found a loophole: they can easily alter the chemical structure of fentanyl — creating “fentanyl related substances” (FRS) — to evade regulation and enhance the drug’s impact.  The DEA and Congress temporarily closed this loophole by making all FRS Schedule I.  The Administration looks forward to working with Congress on its comprehensive proposal to permanently schedule all illicitly produced FRS into Schedule I.  Traffickers of these deadly substances must face the penalties they deserve, no matter how they adjust their drugs.

US Representatives create new "Bipartisan Second Chance Task Force"

I was intrigued and pleased to come across this press release from this past week discussing a new bipartisan group of Representative working on an important criminal justice issue.  Here are the details:

Representatives David Trone (D-MD), John Rutherford (R-FL), Kelly Armstrong (R-ND), and Lisa Blunt Rochester (D-DE) announced the creation of the Bipartisan Second Chance Task Force in an effort to promote policies that will improve reentry outcomes and reduce employment barriers for returning citizens.  At the time of its launch, the Task Force comprised of 26 Members of Congress (13 Democrats and 13 Republicans).

During its inaugural event, members and co-chairs were joined by Federal Bureau of Prisons (BOP) Director, Colette Peters, and Acting Head of National Institute of Corrections, Alix McLearen, for an introductory briefing on the challenges that the BOP faces in establishing and maintaining successful reentry programming.

Over 600,000 individuals are released from state and federal prisons every year in the United States, and recent studies show that formerly incarcerated people are currently unemployed at an average rate of over 27 percent.  The new task force aims to address these barriers to successful reentry by developing and promoting reform policies in Congress and hosting monthly roundtable discussions.

“Returning citizens continue to face hurdles that prevent them from rebuilding their lives and becoming productive members of society. After paying their debts to society, they are effectively shut out of housing, employment, financial support – you name it.  This isn’t fair, and this isn’t right,” said Congressman Trone.  “As a businessman, I know firsthand that there is a lot of value in hiring returning citizens and giving folks a second chance.  I’m proud to co-found and co-chair the Bipartisan Second Chance Task Force so that we work together – Republicans and Democrats – to address the problems in our criminal justice system head-on, and provide returning citizens with the resources they desperately need.”

“As a lifetime member of law enforcement, I saw firsthand how difficult it can be for those leaving our jails and prisons to re-enter society.  From getting an ID to finding a job, stable housing, and healthcare, these individuals face many barriers to success after incarceration. When I was sheriff, I created a robust reentry program in Northeast Florida, and I look forward to continuing that work in Congress.  Helping the formerly incarcerated become productive members of society makes our communities safer and reduces the number of repeat offenders.  That’s not being soft on crime, that’s being smart on crime,” said Congressman John Rutherford.  “I look forward to working with Representatives Trone, Armstrong, and Blunt Rochester, and all of my colleagues on the Second Chance Task Force, to support those reentering society and reduce recidivism.”...

Other Members of Congress in the Task Force include Bonnie Watson Coleman (D-NJ), Nancy Mace (R-SC), Danny Davis (D-IL), G.T. Thompson (R-PA), Barbara Lee (D-CA), Guy Reschenthaler (R-PA), Mary Gay Scanlon (D-PA), Stephanie Bice (R-OK), Dan Goldman (D-NY), Barry Moore (R-AL), Paul Tonko (D-NY), Rick Crawford (R-AR), Glenn Ivey (D-MD), Anthony D’Esposito (R-NY), Ann McLane Kuster (D-NH), David Rouzer (R-NC), Brittany Pettersen (D-CO), Randy Weber (R-TX), Wiley Nickel (D-NC), Dan Meuser (R-PA), Susan Wild (D-PA), John James (R-MI).

Federal judge gives cocaine trafficker time served ... and a requirement that she complete her JD program

Here is another notable sentencing story that might keep the comments buzzing  This one comes from the ABA Journal under the headline "Federal sentence includes law school, and attorneys wonder why."  Here are the basics (with links from the original):

Based on federal sentencing guidelines, people found guilty of trafficking large amounts of cocaine usually face lengthy sentences.  However, a Texas defendant received what many say is an unusual punishment: five days in prison with credit for time served and direction from the judge to complete her JD.

Chelsea Nichole Madill was accused of trafficking 28.5 kilos of cocaine in a 2018 criminal complaint.  She was charged in the U.S. District Court for the Southern District of Texas, and in 2019, Madill pleaded guilty to possession with intent to distribute a Schedule II drug.

Federal sentencing experts say the average penalty for that crime is around five years.  In addition to the law school piece and no prison time, Madill was sentenced to three years of supervised release.  The 2023 sentencing judgment was written by Southern District of Texas Chief Judge Randy Crane.

Much of the record is sealed, and whether Madill attended or completed law school is not disclosed. There is someone with that name listed as a 2L Florida A&M University College of Law student bar association board member.  A 2019 order authorized travel expenses for Madill, directing the U.S. marshal to obtain the cheapest means of noncustodial transportation possible between her Florida residence and the McAllen, Texas, courthouse....

Madill did not respond to an ABA Journal interview request sent through LinkedIn, and her phone number listed in court records was disconnected. FAMU Law also did not respond to ABA Journal interview requests....

Jesse Salazar, the assistant U.S. attorney assigned to the case, referred an ABA Journal interview request to a public affairs officer.  The PAO said the office did not object to the sentence. Richard Gould, a federal public defender, represented Madill.  A receptionist at the Southern District of Texas Federal Public Defender’s Office told the ABA Journal Gould does not speak to reporters....

The sentence is unique, says Michael Heiskell, a Texas attorney and president-elect of the National Association of Criminal Defense Lawyers. Indeed, being a law student could have resulted in a longer sentence if the court was persuaded a defendant’s legal education helped them commit the crime, he adds.

“Kudos to her and her counsel for being able to convince the court to do this. Hopefully, this gives her the motivation to complete her JD. Maybe her story resonated with the judge since he is obviously an attorney,” says Heiskell, a former state and federal prosecutor who does criminal defense work.

According to Heiskell, credit for time served is unusual in drug cases involving delivery, and the sentencing range for Madill’s conviction is between 87 and 108 months.  He adds that a purpose of the federal sentencing guidelines is to avoid disparities, so Madill’s sentence may be useful for defendants with cases similar to hers.  “You would want to make the argument of the courts being consistent in its sentencing for cases such as this. If I had a situation where my client was learning to be a plumber, electrician, etc., I would cite this case,” Heiskell says.

The ABA Journal reporter called me about this  case; I mentioned that, given that the plea was entered in 2019 and then the sentence was not imposed until 2023, it seems quite likely the defendant provided some cooperation in exchange for a reduced sentence. The article does not quote me on that point, but does highlight some of my other speculations for the very special law-school-completion condition of supervision.

For those so interested, here is the exact language in the sentencing entry from Chief Judge Crane: "You must continue to participate and complete an educational program designed to receive a Doctor of Jurisprudence degree." I joked to the ABA Journal reporter that, in some quarters, this condition might be viewed as "cruel and unusual punishment." That quote also did not make the article,  But now that the piece is published, I am eager to hear reactions to this very lawyerly federal sentence.

Notable new grant of sentence reduction for California medical marijuana operator given nearly 22 years in federal prison back in 2008

I was pleased to learn late last night about a notable new ruling out of a federal district court in US  v. Scarmazzo, No. 1:06-cr-000342 DAD (E.D. Ca. Feb 2, 2023) (available for download below).  The case involves Luke Scarmazzo, a California medical marijuana dispensary operator who was federally prosecuted in the mid-2000s and was sentenced to 262 months in federal prison back in 2008.  As detailed in the 29-page opinion posted below, the federal district judge decision to reduce his sentence to time served (already more than 14 years).  The who sentence merits a full read for a host of reasons, and here are just a few key concluding passages: 

Having considered the parties’ briefing and reviewed the relevant case law, the undersigned’s current view is as follows.  This court clearly has the authority to reduce a mandatory minimum sentence in granting compassionate release.  Halvon 26 F.4th at 570. However, where, as here, the minimum mandatory sentence is still authorized by Congressionally enacted federal law that has not been subsequently subject to even non-retroactive amendment, the district court should not grant compassionate release based solely upon its conclusion that the originally imposed mandatory minimum sentence was unduly harsh.  See Thacker, 4 F.4th 569, 574. Nonetheless, this court has broad discretion to consider the harshness of the sentence in light of the current landscape in combination with other factors in determining whether extraordinary and compelling circumstances warrant the granting of compassionate release in a given case. Concepcion, 142 S. Ct. at 2396; Chen, 48 F.4th at 1095; Aruda, 993 F.3d at 802; Jones, 980 F.3d at 1111....

When considering the unique confluence of all of these circumstances — changes in the legal landscape with respect to federal enforcement of laws relating to distribution of marijuana in California; the significant disparity in the sentence actually served by co-defendant Montes and the 14+ years already served in prison by defendant Scarmazzo; defendant’s good behavior, meaningful employment, volunteer work, pursuit of educational opportunities during his imprisonment; defendant’s solid release plans including job offers and family support; the lack of danger posed to the community were he to be released; and defendant Scarmazzo’s difficult family circumstances that have developed during his imprisonment — the court is persuaded that the granting of the requested relief is appropriate at this point and is supported by both extraordinary and compelling circumstances and consideration of the sentencing factors set forth at 18 U.S.C. § 3553(a).

Download CR opinion in Scarmazzo case

"Circumventing Mandatory Minimum Sentences Through Legal Representation – An Integrated Methods Study of Drunk Driving Violations"

The title of this post is the title of this notable new article now available via SSRN authored by Jonathan Hasson and Abraham Tennenbaum.  Here is its abstract:

Most common law nations impose minimum sentences for drunk driving.  Israel introduced a mandatory minimum law in 1995 requiring a two–year license disqualification regardless of intoxication level.  In theory, the new law allows minimal room for deviation. In practice, however, our study demonstrates that the law in action has diverged significantly from “blackletter law.”  Through an integrated historical, quantitative, and qualitative analysis that follows the law from its inception to the present day, we explore the root causes of this deviation and the mechanisms of circumvention.

Based on quantitative data collected on drunk driving cases between 2008 and 2022 and a survey of professionals specializing in traffic law, we highlight how the law’s perceived harshness has contributed to plea bargains becoming the normative means of circumventing the law.  This circumvention undermines the law’s original intention, that is, uniformity, proportionality, and equity in sentencing.  Multiple variables including appearances in court, legal representation, jurisdiction, and the judge’s identity result in comparably guilty defendants receiving different sentences.  Given these disparities, we propose replacing the current minimum sentence with a graduated minimum based on intoxication levels; limiting prosecutorial and judicial discretion; and providing court date reminders and public counsel to minimize harm to vulnerable populations.

Notable trifurcation ruling in federal capital case against Tree of Life mass murderer

The criminal law professor listserve brought to my attention the interesting capital criminal procedure story coming this week from federal court in Pittsburgh.  This local article, headlined "Judge rules Tree of Life death penalty sentencing would occur in 2 phases," provides the basics:

If Robert Bowers is found guilty later this year of killing 11 worshippers inside a Squirrel Hill synagogue in 2018, his sentencing will be broken into two separate phases, a judge ruled this week.  The trial for Mr. Bowers, accused in the Oct. 27, 2018, mass shooting at the synagogue where three congregations — Tree of Life or L’Simcha, Dor Hadash and New Light — were holding Shabbat services, is set to begin in April.

Eleven were killed in the shooting: Joyce Fienberg, Richard Gottfried, Rose Mallinger, Jerry Rabinowitz, David and Cecil Rosenthal, Bernice and Sylvan Simon, Daniel Stein, Melvin Wax and Irving Younger. Two other worshippers and several police officers were injured.

Mr. Bowers’ defense team had sought to split the sentencing phase of the trial — if there is a sentencing phase — into two distinct segments, which would ultimately make the federal case against Mr. Bowers a three-part trial. The trial itself will take place, after which a jury will decide upon Mr. Bowers’ guilt. If he is found guilty, there will be two parts to the sentencing phase.  In the first, jurors will consider whether federal prosecutors have proved that Mr. Bowers is eligible for the death penalty, which the government is seeking. In the second, jurors will decide upon a sentence for Mr. Bowers.

Most notably, the decision by U.S. District Judge Robert J. Colville means that, if there is a sentencing phase, jurors won’t hear victim-impact statements until after they’ve decided if Mr. Bowers is eligible for the death penalty. Defense attorneys had sought this split sentencing, noting that otherwise “the jury will hear the highly emotional and prejudicial victim impact evidence in the same proceeding in which they consider whether the elements of a federal capital crime have been proven.”

In short, defense counsel feared jurors would be unduly swayed to decide Mr. Bowers was eligible for the death penalty if they heard the victim impact statements before making that decision. Federal prosecutors, in expressing opposition to splitting the sentencing phase, noted that the law does not require such a distinction. Plus, they noted, separating the sentencing phases “would unduly complicate the penalty phase, introduce significant risk of jury confusion and run counter to the court’s interest in judicial economy.”

Judge Colville ultimately agreed with the defense, ruling sentencing will be broken into two parts “in an abundance of caution.” He noted that while the court is not required to split the sentencing phase, it has the discretion to do so. 

US District Judge Colville's 14-page opinion granting the defendant’s "Motion to Trifurcate" is available here:

Download USA_v._BOWERS__Docket_No._2_18

Only three weeks now to US Sentencing Commission's first public hearing on its proposed guideline amendments

My long-standard status as a sentencing nerd is surely be debate, but I can make the case again when I admit that I got more than a bit giddy upon seeing this official notice from the US Sentencing Commission announcing its "Public Hearing on Proposed Amendments to the Federal Sentencing Guidelines."  Here are the deets:

Pursuant to Rule 3.2 of the Rules of Practice and Procedure of the United States Sentencing Commission, a public hearing is scheduled for Thursday, February 23 and Friday, February 24, 2023 to commence at 9:00 a.m. (ET) on both days.

The public hearing will be held in the Mecham Conference Center in the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, NE, Washington, DC. The hearing will be streamed live below.

The purpose of the public hearing is for the Commission to receive testimony on proposed amendments to the federal sentencing guidelines related to Compassionate Release, Sexual Abuse of a Ward, and Acquitted Conduct.

Because there are many more issues covered in the USSC's proposed amendments, and because the comment period runs through mid-March, I suspect these scheduled two days of public hearings are just the first of what may be a series of hearings. How exciting.

A few of many prior recent related posts:

• At long last, we have a fully loaded USSC: Senate confirms all seven of Prez Biden's nominees to Sentencing Commission 
• US Sentencing Commission reports receiving "more than 8,000 public comment submissions pertaining to proposed priorities"
• US Sentencing Commission finalizes its policy priorities for for the 2022-2023 amendment year 
• Latest issues of FSR providing new advice to a new US Sentencing Commission (and lots more) 
• Gearing up for a new federal sentencing year that might finally bring some new guideline amendments 
• Timely new CRS review of US Sentencing Commission's guideline amendment process and plans 
• US Sentencing Commissions publishes proposed guideline amendments and issues for comment 

New Massachusetts bill provides sentence reductions for when "incarcerated individual has donated bone marrow or organ(s)"

The comments to this blog have been, as the kids like to say, "on fire" lately.  And I suspect and hope lots of different folks will have lots of different opinions to share (respectfully) about a new bill introduced in The 193rd General Court of the Commonwealth of Massachusetts.  Specifically, as reported in this Insider article and detailed in the bill available at this link, some legislators in Massachusetts have introduced a proposal that provides a notable new way for incarcerated individual reduce a term of imprisonment.  The headline of the press piece notes the essentials: "A proposed Massachusetts bill would give inmates up to a year off their sentence — if they donate their organs."  Here are more of the particulars:

Forget sentence reductions for good behavior: With a proposed bill making its way through the Massachusetts legislature, inmates could receive up to a year off their jail sentence by donating their organs.

Bill HD.3822, called the "Act to establish the Massachusetts incarcerated individual bone marrow and organ donation program," would allow eligible incarcerated people to receive no fewer than 60 but no more than 365 days off their sentences for donating their marrow or organs. It has not passed through the Massachusetts House of Representatives.

The act, if passed, would create a five-person panel to oversee the implementation of the program, made up of two Department of Corrections officials, an organ donation specialist from a state hospital, and two advocates focusing on organ donation and prisoners' rights. The panel would determine eligibility standards and file reports of annual donations and "estimated life-savings associated with said donations." "There shall be no commissions or monetary payments to be made to the Department of Correction for bone marrow donated by incarcerated individuals," the proposed text reads....

State Rep. Judith Garcia, one of the co-sponsors, explained the proposal with an infographic on Twitter, saying the Massachusetts organ donation waiting list has nearly 5,000 people on it, disproportionately impacting Black and Hispanic residents, with no existing path to organ donation for incarcerated people, even if a relative were in need of a donation. The bill would "restore bodily autonomy to incarcerated folks by providing opportunity to donate organs and bone marrow," the graphic read.

"It seems like something out of a science fiction book or horror story," Kevin Ring, president of the nonprofit organization Families Against Mandatory Minimums, told Insider. "It's just this sort of idea that we have this class of subhumans whose body parts [we] will harvest because they're not like us or because they're so desperate for freedom that they'd be willing to do this."

Ring, a former lobbyist who served 20 months in federal prison on public corruption charges as part of the Jack Abramoff lobbying scandal, said he would have considered doing anything to reduce his sentence while he was incarcerated, making the whole thing feel like a coercive idea that "preys on that desperation." "In most state systems, you earn good time credits from participating in programming that is intended to reduce your risk of reoffending, so those things make sense," Ring said, listing examples like drug treatment programs and job training to show initiative and work toward rehabilitation. "Those are things that are at least connected, relevant, to releasing them early. This one seems like it's not, though and it just begs the question, like, how about two years off for a limb, for an amputee? What's going on here? It's dark."

In an email sent to Families Against Mandatory Minimums and reviewed by Insider, a cosponsor of the bill, State Rep. Carlos Gonzalez, told Ring the legislation would "only establish support to those incarcerated and provide guidelines, clarity, and transparency for a potential life-saving voluntary deed."...

Prisoners' Legal Services of Massachusetts, a legal aid group, said in a statement to Insider that the intent behind the bill made sense to try to address issues of racial inequity and the need for organ donation, but didn't appear to be a comprehensive solution due to the risk of coercion....

Ring told Insider he doesn't think it's likely the bill will become law, given an especially negative response to it on social media. "We're in the criminal justice movement, we appreciate that people make mistakes," Ring told Insider. "I can't believe these people are some sort of Frankenstein monsters, I think they just goofed. They're probably well-intentioned, but it's just a disastrous idea."

I am eager to hear all sorts of comments any aspects of this bill, but my first question is whether anyone thinks this proposal would be unconstitutional. I suspect lots of folks may have strong thoughts about whether this bill is good or bad policy, but I would be interested to hear if anyone have a strong constitutional take as well.

Sad accounting of 150-year prison term for child-porn possession after 3-year plea deal had been offered

The Miami Herald has this extended and sad review of an 150-year state sentence imposed on a person with schizophrenia who possessed child pornography.  The case provide an example of the "trial penalty" and all sort of other factors that can contribute to extreme prison terms.  The piece is headlined "‘Extreme injustice’: Homeless man with untreated schizophrenia fights 150-year sentence."  I recommended the lengthy article in full and here are excerpts:

The crime that Jared Stephens committed is not in dispute.  The question is whether he should die in prison for it.

On a stormy September day in 2016, Stephens — a former wrestler at Arizona State University who became homeless after years of untreated schizophrenia — walked into a Best Buy in Sweetwater.  He snatched a $399.99 laptop, stuffed other merchandise totaling $157.96 into a brown Publix tote bag and tried to walk out without paying.

Confronted by employees, he resisted, then pulled his own laptop out of a backpack and did something extraordinarily irrational. “Look, I have child pornography!” he declared.  He was telling the truth. Stephens, then 25, marched in and out of the store with his laptop playing a video of child abuse, tilting his computer screen so it was visible to a surveillance camera, according to an arrest report.  He proceeded to lie down between two sets of sliding doors at the store’s entrance, perusing illicit images as shoppers flowed by, until police arrived and hauled him to jail.

That unhinged act sent Stephens on an odyssey through the criminal justice system, resulting in a sentence that has no parallel in local courts for a similar crime: 150 years in state prison — to be followed by a 120-day stint in the Miami-Dade County jail.  The sentence — handed down by Miami-Dade Circuit Court Judge Veronica Diaz in 2018, with a minimum of public explanation — was 147 years longer than the three-year term state prosecutors initially proposed in a plea deal and 129 years longer than the 21-year term the state asked for at sentencing.  It was also dozens of times greater than the typical sentence for possession of child pornography....

Stephens ... made outlandish claims in open court at his criminal trial, asserting he could command African armies and shut off electricity to Russia with the power of his mind.  He largely refused to talk to his lawyers, much less cooperate in his defense. Court-appointed psychologists diagnosed him with schizophrenia... He had also suffered his own shocking trauma as a child — a fact that went unmentioned at his sentencing because he never told his defense lawyers.  Fan Li, a private attorney now representing Stephens, said that courts are ill-equipped to handle people experiencing mental illness, leading to widespread “unjust prosecutions and sentences.”...

Stephens’ presumptive release date is July 4 — Independence Day — 2166, when he would be 175. He did not produce or distribute the illegal images, which would typically lead to a longer sentence.... Had he gone along with the state and accepted a plea deal when it was originally offered, he could have gotten just three years in prison, as well as treatment in a program for “mentally disordered sex offenders.”  That sentence would have been in line with those given to other, similar offenders, according to court documents submitted by his lawyers.

Instead, he chose to fight the case.  State prosecutors responded by upping the charges from one count of child porn possession — with a maximum of five years in prison — to 30 counts, with a maximum of 150 years, based on a forensic analysis that found a cache of illegal images on his computer.

Between 2000 and 2017, Miami-Dade judges decided that nearly one-third of defendants who, like Stephens, possessed child porn — without producing it or passing it around to others — should not be sent to prison, according to data from the Florida Department of Corrections.  Those sent to prison received a median term of three years, according to the data, which was submitted in a court filing by Stephens’ defense team.  Only one other local case resulted in such a lengthy sentence: Adonis Losada, a former performer on the longtime Univision show “Sabado Gigante,” received a 153-year term.  The trial for Losada was later ordered redone, resulting in a sentence slashed by two-thirds.

Effective coverage of compassionate release challenges at the state level

Since the First Step Act made it much easier for federal prisoners to get their motions for sentence reductions before judges, discussion and debate (and litigation) over the federal approach to so-called compassionate release has been robust.   And, on-going consideration by the US Sentencing Commission of changes to its guidelines for these sentence reductions ensures that the federal debate will remain robust for the foreseeable future.

But, helpfully, the folks at Bolts have been doing the important work of making sure we do not lose sight of how these sorts of issues play out in state prisons systems.  Most recently, Bolts published an extended piece on these topics focused on Oregon, and it has published prior pieces focused on California and New York.  Here are the extended headlines of these pieces, along with links:

By Piper French, "In Oregon’s Prisons, Terminally Ill People Are Left with Little Recourse: Proposed legislation would ease the extraordinarily difficult road that incarcerated Oregonians face in securing compassionate release."

By Piper French, "California Passes Bill to Expand Prison Releases for Terminally Ill People: Few people leave prison under California’s compassionate release program, but a new measure could allow more incarcerated people to live out their final days at home."

By Victoria Law, "Prison Officials Routinely Deny Hearings to Terminally Ill New Yorkers: The frequent refusal to send medical parole cases to the state board has frustrated advocates and raises questions about the murky criteria preventing most sick people from making their case."

New year and new Congress brings a new effort to advance new EQUAL Act

Regular readers likely recall some of my posts over the last two years about the EQUAL Act, a bill to reform federal crack cocaine sentencing by finally treating crack and powder cocaine the same at sentencing.  In short form, passage of the bill looked somewhat likely when the US House of Representatives passed it overwhelmingly in September 2021; but, as detailed in posts here and here from the first half of 2022, opposition from some key Republican Senators prevented the bill from getting to the desk of President Biden.  And, as detailed in this post, a lame-duck session compromise bill to the finish line.

Of course, the start of 2023 means a new Congress, so there needs to be a new version of the EQUAL Act introduced.  Interestingly, as this new FAMM press release highlights, there is already a "coalition of law enforcement, justice reform, and civil rights organizations urg[ing] Congress to pass the EQUAL Act" even before a new version has been formally introduced.  As the press release explains: "Today, FAMM along with 20 additional organizations sent a letter to Sens. Dick Durbin and Lindsey Graham (the Chair and Ranking Member of the Senate Judiciary Committee, respectively) urging them to schedule a markup for the EQUAL Act as soon as it is reintroduced this Congress."  Here are parts of the letter:

We write today to urge you to schedule a mark-up for the EQUAL Act as soon as it is reintroduced. We believe that moving the bill early this year will help prevent the same disappointing fate the bill suffered last Congress....

Last Congress, the EQUAL Act was one of only a few pieces of legislation to enjoy clear bipartisan support. The House of Representatives passed the bill in September 2021 with an overwhelmingly bipartisan vote of 361-66. The Senate version of the bill enjoyed the support of more than 60 senators, but never received a vote in committee or on the floor. To ensure this strong bipartisan bill reaches President Biden’s desk, we urge you and your committee to begin work on this urgent piece of legislation immediately.

Notably, but not surprisingly, this letter to Congress makes no mention of the fact that, as discussed here, US Attorney General Garland released last month new federal charging guidelines that including instructions to federal prosecutors to treat crack like powder cocaine at sentencing.  Though these new charging guidelines do not have the legal force of statutory reform, they might readily lead members of Congress to see less urgency in advancing reform or even to be more resistance to reform as we saw late last year.  Fingers crossed that EQUAL can gather momentum again and actually finally eliminate the pernicious and unjustified crack/powder disparity once and for all.

A few of many prior posts on the EQUAL Act:

• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences
• After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong? 
• Shouldn't federal prosecutors already be doing what they can to minimize the unjust crack-powder sentencing disparity? 
• Is it foolish to hope, after now 35 years, that Congress will soon fix the crack-powder federal sentencing disparity? 
• How about passing the EQUAL Act so we can be "free at last" from the crack/powder sentencing disparity?
• Why is getting the EQUAL Act through the US Senate proving so challenging? 
• Is Congress finally on the verge of equalizing crack and powder cocaine sentences?
• GOP Senators introduce competing crack/powder sentencing reform bill tougher than EQUAL Act
• With Senate leader now pushing for EQUAL Act, can crack sentencing reform finally get to finish line?  
• Hoping it is not yet time to give up on passage of the EQUAL Act 
• Discouraging report on a possible last gasp for this Congress to pass the EQUAL Act 

Jury trials on hold in New Orleans because of apparent long-running failure to comply with new law to allow certain persons with felony convictions to serve as jurors

This local article, headlined "Jury trials in New Orleans criminal court halted through February," reports on interesting development in the Big Easy.  Here are the highlights:

Criminal court judges in New Orleans decided on Monday afternoon to put all jury trials on hold until at least March amid allegations that the court has been illegally excluding people with felony convictions from serving on juries for the last year and half.  In addition to delaying many criminal trials that were set to be held over the next five weeks, the decision is likely to bolster concerns over the legitimacy of dozens of jury trials in New Orleans dating back to August of 2021.

In a letter on Monday, Chief Judge Robin Pittman informed a lawyer for Voice of the Experienced (VOTE), Emily Posner, that jury venires — the legal term for the panel from which jurors are drawn — would be “deferred for the remainder of January 2023 and February of 2023.” VOTE, whose membership consists primarily of formerly incarcerated individuals, first raised concerns about the summons process in a letter to criminal court judges earlier this month....

The decision comes after the Louisiana Fourth Circuit Court of Appeal halted the attempted murder trial of Samuel Preston in New Orleans midway through jury selection last week, and ordered the trial judge in the case, Rhonda Goode-Douglass, to hold a hearing on whether or not the court has been using an outdated summons process in violation of state law.

In 2021, the Louisiana legislature changed the law to allow people with felony convictions to serve on juries as long as they have been off of probation or parole for five years, and are not under indictment. Prior to that, no one with any past felony conviction was able to serve on a jury.  The new law was signed by Gov. John Bel Edwards, and went into effect on August 1, 2021.  But despite the new law, defense attorneys have argued that the criminal court in New Orleans has been continuing to exclude anyone with a past felony conviction by sending out summons with outdated information and failing to update their online questionnaire for jurors....

In their letter, VOTE pointed to summonses sent to potential jurors as recently as this year that still indicated anyone with a felony conviction was barred from jury service.  In addition, a questionnaire that potential jurors are required to fill out online asks about felony convictions, but does not inquire when an individual completed parole or probation. The organization urged the court to resummon a new jury pool before resuming jury trials “in a manner that respects the rights of jurors” as guaranteed by state law.

But the judges at that time declined to do so, and moved forward with trials last week, including that of Preston. Lawyers for Preston with the Orleans Public Defenders Office, echoing the allegations made by VOTE, attempted to get his jury pool thrown out, arguing that excluding all people with felony convictions from potentially serving on his jury violated Preston’s Sixth Amendment right to a fair trial. Goode-Douglass denied that challenge, but in response to a supervisory writ the Fourth Circuit sided with Preston and ordered an evidentiary hearing.

In another case out of Orleans Parish criminal court, Michael Shorts, who was found guilty of second degree murder in July of last year, has challenged his conviction based in part on the same allegations that his jury was not summoned in accordance with the recent change to state law. Lawyers for Shorts filed a motion in his case last week arguing that the “crucial legal error” in the summons process entitles him to a new trial. It is set for a hearing in front of Judge Laurie White on Feb. 1.

In addition to any individuals with felony convictions who received a jury summons since the law changed and did not respond due to misinformation on the form, or were excluded once they attempted to fill out the questionnaire, there are also open questions regarding how many people with felony convictions may have been permanently purged from the list of people who receive summons in the first place. If that’s the case, lawyers for Preston have argued, “then the systemic exclusion of those prospective jurors cannot be remedied by merely changing the language of the summons and the questionnaire.”

Different approaches to death penalty administration from different governors

When it comes to the administration of the death penalty, governors tend to have a huge (and outsized?) role at the state level.  Historically, that role has been exercised through grants of executive clemency, though it can also shape in various ways how death sentencing operates or how executions are conducted.  With the start of a new year, I have seen a number of notable new stories about a number of governors seeking to impact how their states approach capital punishment.

From the AP, "Arizona executions on hold amid review ordered by governor":

Arizona’s attorney general has put a hold on executions in the state until the completion of a review of death penalty protocols ordered by the new governor due to the state’s history of mismanaging executions.

The review ordered Friday by Gov. Katie Hobbs, Arizona’s first Democratic governor since 2009, came as the state’s new Democratic attorney general, Kris Mayes, withdrew her Republican predecessor’s request for a warrant to execute a convicted killer who initially asked to be executed but later backed out of that request.  While Hobbs’ order didn’t declare a moratorium on the death penalty, Mayes will not seek court orders to execute prisoners while the review is underway, said Mayes spokesperson Richie Taylor.

From the Nashville Scene, "Bill Lee Tries to Keep Lethal Injection Alive: Rather than reconsidering capital punishment, the governor will make leadership changes after a damning investigation into Tennessee executions":

In April of last year, the governor — then the media, then the public — learned that the state had bungled drug testing in the hours leading up to the planned execution of 72-year-old Oscar Franklin Smith. Lee issued a last-minute reprieve for Smith and, days later, suspended executions through 2022, citing “technical issues” with the state’s lethal injection process....

On Jan. 9, Frank Strada — previously the deputy director of Arizona’s Department of Corrections — assumed the role of commissioner at the Tennessee Department of Correction with an explicit mandate to bring back Tennessee executions.

From Florida Politics, "Gov. DeSantis calls for juror ‘supermajority’ to suffice in death penalty cases":

Gov. Ron DeSantis started out his week with the Florida Sheriff’s Association (FSA), where he discussed his desire to allow juries to administer the death penalty via a supermajority vote, rather than requiring unanimity.  “Fine, have a supermajority. But you can’t just say one person (can decide against the death penalty). So maybe eight out of 12 have to agree? Or something. But we can’t be in a situation where one person can just derail this,” DeSantis said at the group’s winter conference in St. Johns County, discussing death penalty verdicts left unachieved because of a rogue juror.

DeSantis told the FSA Monday that he wants a “supermajority” to constitute a sufficient vote count for execution. The pitch comes in the wake of the Parkland killer not getting the death penalty because of what DeSantis called one person’s “idiosyncratic” approach to the proceedings, though there ultimately were three votes not to execute the murderer.

US Sentencing Commission provides "Public Data Briefing: Proposed 2023 Criminal History Amendment"

Among many notable and consequential proposed amendments to the federal sentencing guidelines, the US Sentencing Commission has noticed a number of proposals connected to criminal history issues.  And today the Commission posted here a "Public Data Presentation for Proposed Criminal History Amendment."  Here is how this release (which includes a video and associated slides) is described on the USSC website:

The Commission is seeking public comment on proposed amendments to the federal sentencing guidelines.  Commission staff prepared a data presentation to inform public comment on a proposed amendment related to criminal history and the Commission’s implementation of 28 U.S.C. § 994(j).  This briefing presents data on following aspects of criminal history to help inform public comment on the three-part proposed amendment:

• status points;
• offenders with zero criminal history points; and,
• simple possession of marijuana offenses.

Justice Gorsuch dissents from denial of cert in "civil" tax case involving Excessive Fines challenge

The new SCOTUS order list released this morning appears to relist again (re-relist?) the set of acquitted conduct cases that I have been following closely (some background here and here).  In addition to that notable news, the order list also including an intriguing short dissent from the denial of cert in Toth v. US, a case involving a woman who failed to disclose a foreign bank account being "assessed a civil penalty of $2.1 million — half of the balance of Ms. Toth’s account — plus another $1 million in late fees and interest."   The First Circuit turned back an Excessive Fines challenge, and Justice Gorsuch explained why he found this troublesome (with some cites removed): 

It held that the Constitution’s protection against excessive fines did not apply to Ms. Toth’s case because the IRS’s assessment against her was “not tied to any criminal sanction” and served a “remedial” purpose.

This decision is difficult to reconcile with our precedents. We have recognized that the Excessive Fines Clause “traces its venerable lineage” to Magna Carta and the English Bill of Rights. Timbs v. Indiana, 586 U. S. ___, ___–___ (2019) (slip op., at 4–5).  We have held that “[p]rotection against excessive punitive economic sanctions” is “‘fundamental’” and “‘deeply rooted in this Nation’s history and tradition.’” Id., at ___ (slip op., at 7).  And all that would mean little if the government could evade constitutional scrutiny under the Clause’s terms by the simple expedient of fixing a “civil” label on the fines it imposes and declining to pursue any related “criminal” case.  Far from permitting that kind of maneuver, this Court has warned the Constitution guards against it.  See Austin v. United States, 509 U. S. 602, 610 (1993) (“[T]he question is not, as the United States would have it, whether [a monetary penalty] is civil or criminal, but rather whether it is punishment.”)....

Nor is a statutory penalty beneath constitutional notice because it serves a “remedial” purpose. Really, the notion of “nonpunitive penalties” is “a contradiction in terms.” United States v. Bajakajian, 524 U. S. 321, 346 (1998) (Kennedy, J., dissenting).  Just take this case.  The government did not calculate Ms. Toth’s penalty with reference to any losses or expenses it had incurred.  The government imposed its penalty to punish her and, in that way, deter others.  Even supposing, however, that Ms. Toth’s penalty bore both punitive and compensatory purposes, it would still merit constitutional review.  Under our cases a fine that serves even “in part to punish” is subject to analysis under the Excessive Fines Clause.  Austin, 509 U. S., at 610 (emphasis added).

Ms. Toth and her amici identify still more reasons to worry about the First Circuit’s decision.  They say it clashes with the approach many other courts have taken in similar cases.  Pet. for Cert. 18–25 (collecting cases).  They observe that it incentivizes governments to impose exorbitant civil penalties as a means of raising revenue. Id., at 25–30.  And they contend that it is difficult to square with the original understanding of the Eighth Amendment.  Brief for Professor Beth A. Colgan as Amicus Curiae on Pet. for Cert. 4–13.  For all these reasons, taking up this case would have been well worth our time.  As things stand, one can only hope that other lower courts will not repeat its mistakes.

Warranted or unwarranted disparity?: noting different punishments for disrupting different government branches

This lengthy new NBC News piece shines a spotlight on the notable, but arguably justified, disparity between how disruptive protesters at Congress and at the Supreme Court are punished.  The full headline for the piece highlights its essentials: "Protesting against Congress may get you a $50 fine. Disrupting the Supreme Court is a different story. Protesters disrupting oral arguments can face at least a night in jail and a criminal conviction."  Here are some excerpts:

When Emily Paterson was arrested for protesting abortion law changes during a Supreme Court hearing in November, she spent the night in jail and now has a criminal conviction on her record. Across the street, Jack Murphy met a different fate when she did something similar in the Senate chamber three years earlier: She paid a $50 fine and was released a few hours later.

Such is the differing nature of punishment for nonviolent protesters during official proceedings in Washington, with the Supreme Court, which has its own police department, viewed as being tougher than the Capitol Police, which has jurisdiction over the Capitol and its surrounding campus, which borders the Supreme Court building.

It’s a sore point for Mark Goldstone, a lawyer who regularly represents Washington protesters. Supreme Court protesters are treated “more harshly” in a couple of different ways, he said, referring only to those participating in nonviolent protests and not violent attacks like the Jan. 6 assault on the Capitol. On Capitol grounds, the police “process you and release you,” Goldstone said, while at the Supreme Court, “you are going to spend the night in jail" and likely face prosecution....

Those familiar with Washington protests point to some possible reasons protesters are treated differently.  One is that the Capitol Police has a lot more protesters to deal with, sometimes needing to process hundreds of people quickly.  In contrast, although protests outside the Supreme Court building are common, it is relatively unusual for people to disrupt court proceedings inside the courtroom.

There are also inherent differences between the two institutions.  Congress is where democratically elected representatives meet and a place where members of the public have a right to express their views.  The high court, meanwhile, is not directly accountable to the people and likes to see itself as nonpolitical.  As such, there may be a desire to crack down on protesters to help maintain that image.  The respective police departments have different legal powers too, which could affect how they resolve cases.

As I see it, protesters who disrupt SCOTUS oral arguments are generally likely to be a lot more disruptive to the functioning of SCOTUS, and be more harmful and disrepectful to the lawyers who have prepared for months for 30 minutes of time to represent their clients before the Justice, than protesters in Congress.  Of course, as the events of January 6, 2021 should remind us, some protesters can be very disruptive of the work on Congress.  But the practicalities of the functioning of different branches, not some notion of political "image," seems to me to make the disparity here more warranted than unwarranted.  But perhaps others have distinct views.

"The Problem with Capital Pleas"

The title of this post is the title of this recent paper authored by William W. Berry III available via SSRN. Here is its abstract:

In United States v. Jackson, the Supreme Court recognized the importance of protecting an individual's jury trial rights in capital plea bargaining.  With the subsequent Brady trilogy, however, the Court’s plea bargaining doctrine migrated away from Jackson and accepted pleas in capital cases as long as the defendant had counsel.

Over the past twenty years, the capital punishment landscape has significantly narrowed, with only twenty new death sentences a year, most coming from the few counties that have the economic resources to pursue the death penalty. The decreased likelihood of receiving a death sentence could, in theory, convince more capital defendants to go to trial as opposed to entering plea deals, especially as juries, even in Texas, are increasingly disinclined to impose death sentences.  But the risk of execution remains too heavy a thumb on the scale.  The effect of this dynamic is that prosecutors essentially have the power to impose mandatory LWOP sentences in homicide cases, simply by threatening to pursue the death penalty.

As such, this essay makes the case that, taken together, the values of the Fifth (right not to plead guilty), Sixth (trial by jury, right of confrontation, right to present witnesses), and Eighth Amendments (right to heightened scrutiny in capital cases) should lead the Court, legislatures, or prosecutors themselves to eliminate plea agreements in capital cases, particularly those that result in LWOP sentences.  Such bargained sentences almost certainly reflect the coercion of the prosecutor in an unequal bargaining dynamic rather than a voluntary acceptance of a proportional punishment for one’s crime.

En banc Eleventh Circuit limits reach of career offenders under USSG based on plain text of guideline for drug offenses

Last month, as noted in this post, the en banc Eleventh Circuit gave federal drug defendants a big sentencing win by giving a broad reading to the FIRST-STEP-amended mandatory-minimum safety valve provision.  A helpful reader alerted me to the fact that today the en banc Eleventh Circuit issued another ruling that helps some drug defendants at sentencing in US v. Dupree, No. 19-13776 (11th Cir. Jan.18, 2023) (available here).  This matter is another case with a Kisor role shifting guidleine interpretation (background here), and here is how the opinion of the Court begins:

This appeal requires us to consider whether an inchoate offense qualifies as a “controlled substance offense” for purposes of the career offender sentencing enhancement under the United States Sentencing Guidelines. U.S. Sent’g Guidelines Manual § 4B1.2(b) (U.S. Sent’g Comm’n 2018). In this case, the district court sentenced Brandon Dupree as a career offender based partly on his conviction for conspiring to possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 846.  Dupree appealed his sentence, arguing that his § 846 conspiracy conviction could not serve as a predicate for his career offender enhancement because the Guidelines’ definition of “controlled substance offense” omitted conspiracy and other inchoate crimes.

A panel of this Court affirmed Dupree’s sentence, concluding that our decisions in United States v. Weir, 51 F.3d 1031 (11th Cir. 1995), and United States v. Smith, 54 F.3d 690 (11th Cir. 1995), foreclosed his argument.  United States v. Dupree, 849 F. App’x 911 (11th Cir. 2021) (unpublished), reh’g en banc granted, opinion vacated 25 F.4th 1341 (11th Cir. 2022). We granted Dupree’s petition to rehear the case en banc.  After careful consideration, and with the benefit of oral argument, we hold that the definition of “controlled substance offense” in § 4B1.2(b) does not include inchoate offenses.  We therefore vacate Dupree’s sentence and remand to the district court for resentencing.

Here is a choice paragraph from the start of the dissent by Judge Luck:

I respectfully dissent for two reasons.  First, despite what the majority opinion says it is doing, it is not really applying Kisor’s clarification to Stinson.  Under the majority opinion’s approach, the Kisor clarification applies to Stinson the same way a magnifying glass applies to an ant on a sunny day — total annihilation.  The majority opinion is actually applying Kisor to overrule Stinson.  But the Supreme Court didn’t overrule Stinson and we can’t overrule a Supreme Court opinion on our own.  Only the Supreme Court can do that.  Second, even if the majority opinion isn’t overruling Stinson, the Kisor clarification doesn’t apply to Stinson.

The look of a federal capital moratorium(?): prosecutors not seeking death penalty for El Paso Walmart shooter

As detailed in this Wall Street Journal piece, the "Justice Department won’t seek the death penalty for the man accused of killing 23 people in 2019 at a Walmart in El Paso, Texas, federal prosecutors said in a Tuesday court filing."  Here is more:

Patrick Crusius faces 90 federal charges for his alleged role in one of the deadliest mass shootings in U.S. history.  Of those charges, 45 have been deemed hate crimes, or crimes motivated by racial, religious, national-origin, sexual, gender or disability bias. Mr. Crusius, 21 years old at the time, is accused of traveling to the Texas border city to target Latinos in the attack. Nearly two dozen people were injured in the shooting.

Jury selection is expected to begin in his federal case in January 2024.  Mr. Crusius, now 24, was also indicted on state charges of capital murder and could face the death penalty if convicted. The state case would proceed after the federal case is done....

Months after taking office in 2021, Attorney General Merrick Garland ordered a nationwide halt to federal executions while he reviewed policies and protocols put in place by the Trump administration that led to the highest rate of federal executions in more than a century.  President Biden has said he would work to end federal executions.

The Justice Department last year chose to continue the pursuit of the death penalty against an alleged terrorist charged with killing eight people in New York City in 2017.  The Trump administration initially sought the death penalty against Sayfullo Saipov, who prosecutors said was inspired by Islamic State to carry out the Manhattan attack. Mr. Saipov’s attorneys asked Mr. Garland to withdraw the death penalty from the case but were turned down.

Justin Underwood, an attorney representing the family of Walmart shooting victim Alexander Hoffman, said they were disappointed by the Justice Department’s decision. “They’re disappointed the U.S. government won’t seek the death penalty on a mass murderer who drove 10 hours to seek out and kill Hispanic and Mexican people,” Mr. Underwood said. “If this guy doesn’t qualify for the death penalty, why on earth do we even have a federal death penalty statute?”

Mr. Underwood questioned why the federal government continued to pursue the death penalty in Mr. Saipov’s case in New York, but not in the Walmart shooting.  Mr. Hoffman’s widow and his two sons are now looking to the state’s case for justice, Mr. Underwood said.  “This might not be the Christian thing for me to say, but some people need to be killed and he certainly qualifies,” Mr. Underwood said. “I just put my faith in the state of Texas to seek justice in this case.”

Intriguingly, this Reuters article about this prosecutorial charging decision makes mention of a fact not noted by the WSJ that might be part of the story: "When he was taken into police custody minutes after the shooting, Crusius was in a psychotic state and treated with anti-psychotic medication, according to mental health professionals employed by the jail, a court filing said."  Mental health issues might well have influenced federal prosecutors here; Crusius's defense attorneys hoped it would accourding to this 2020 AP piece:

Lawyers for a man charged with shooting scores of people in a racist attack at a Texas Walmart say their client has diagnosed mental disabilities that should be a “red flag” for federal prosecutors considering whether to seek the death penalty.

Patrick Crusius “has been diagnosed with severe, lifelong neurological and mental disabilities” and was treated with antipsychotic medication following his arrest moments after the massacre in El Paso, his attorneys wrote in a court filing.

California working to clear condemned inmates from death row

This recent NPR piece, headlined "California says it will dismantle death row. The move brings cheers and anger," provides an interesting overview of the state of California's death penalty as it seeks  to clear the nation's largest (and largely dormant) death row.  I recommend the full piece, and here are excerpts:

California this week pushed ahead with controversial efforts to dismantle the largest death row system in America.

Under Gov. Gavin Newsom, the state is moving to make the transfer of condemned inmates permanent and mandatory after what the state's Department of Corrections and Rehabilitation (CDCR) calls a successful pilot program that voluntarily moved 101 inmates off death row into general population prisons across the state....

After a 45-day public comment period and a public hearing in March, the state hopes to start moving all 671 death row inmates – 650 men and 21 women — into several other prisons across the state with high-security units. Some prisoners will be able to get jobs or cellmates if they are mainstreamed into the general prison population.

The CDCR says the move allows the state "to phase out the practice of segregating people on death row based solely on their sentence." No inmates will be re-sentenced and no death row commutations offered, officials say.

Technically, the death penalty still exists in California. Prosecutors can still seek it. But no one has been put to death in the state in 17 years. And in 2019, Newsom imposed a moratorium on executions and he closed the death chamber at San Quentin, the decrepit and still heavily used 19th century prison overlooking San Francisco Bay.

Those who get prison jobs — as clerks, laundry or kitchen helpers – will see 70 percent of their pay go to victims' families, as required under Proposition 66. That 2016 voter-passed initiative amended California's Penal Code to require death-sentenced inmates to work and pay restitution....

But death penalty proponents and victims' rights advocates are frustrated and angry. "To hear this news is devastating," says Sandra Friend. She described feeling victimized all over again. Her 8-year-old son Michael Lyons was making his way home from school in Yuba City, Calif., in 1996 when he was abducted and sodomized by serial killer Robert Boyd Rhoades, who dumped the child's body in a riverbed....

In part, California's death penalty reforms grew out of 2016's Prop. 66, which promised to speed up the time between a death sentence and an execution. The successful ballot measure also required condemned prisoners to work and pay restitution. Now death penalty proponents accuse Newsom of exploiting a lesser-known section of Prop. 66 for his own ideological and political purposes.

"The governor has taken loopholes and nuances in the law and used them to give criminals — the worst criminals — a break," says Michael Rushford, president of the conservative Criminal Justice Legal Foundation. "To start mainstreaming people like Tiequon Cox, who killed an entire family in Los Angeles after going to the wrong address to do a gang hit, is an abandonment of justice. Injecting politics into criminal justice and public safety is insane. It's unjust, unfair and it's stupid."...

In California, Sandra Friend says it's outrageous that killers like Rhoades may "get rewarded," as she puts it, with expanded work options, even a cellmate. "For him to be able to leave death row and go into a cushier prison, having maybe possibly a cellie, having a job, is terrifying because he is the worst of the worst. He is a monster," she says.

State officials underscore that inmate transfers and their housing will depend on the specific facts of each inmate. "Their housing would depend on their individual case factors, and it's what the multidisciplinary teams will be evaluating," says CDCR spokeswoman Vicky Waters.... The state hopes to permanently empty California's death row by this fall, a CDCR official says.

Friend vows to fight the effort. A public hearing on the issue is scheduled in Sacramento for March 8. "I'm definitely going to make Michael's voice heard," she says, "because he's the one that is getting lost in all of this."

DC Council overrides DC mayor's veto of significant criminal justice reform bill

As reported in this new Washington Post piece, the "D.C. Council on Tuesday voted to override Mayor Muriel E. Bowser’s (D) veto of a major overhaul of the city’s criminal code, which city lawmakers had unanimously approved in November despite concerns from court and law enforcement leaders." Here is more from the press report:

Lawmakers voted 12-1 to override Bowser’s veto of the bill, with Trayon White Sr. (D-Ward 8) breaking from the rest of the council.  Council member Charles Allen (D-Ward 6), who chaired the public safety committee when the legislation passed, said lawmakers “stand at the finish line of a 16-year process that would make significant improvements and modernize an outdated criminal code from another era.”...

The bill would, among other things, eliminate most mandatory minimum sentences, allow for jury trials in almost all misdemeanor cases, and reduce the maximum penalties for offenses such as burglaries, carjackings and robberies.  Law enforcement leaders had expressed concern that it could burden an already stretched court system and would send the wrong message to residents at a time when the city is struggling with gun violence.

“This bill does not make us safer,” Bowser wrote in a letter to Council Chairman Phil Mendelson (D), announcing her veto. Lawmakers shot back Tuesday that the bill was a necessary reform of the city’s outdated criminal code, and they took direct aim at the mayor’s criticism, which they said could be used as fodder for members of Congress who can block city legislation.  Republicans in the House have already threatened to target the measure. But resolutions disapproving D.C. legislation must pass both chambers and be signed by the president.  Democrats have a narrow majority in the Senate....

Allen, who chaired the public safety committee when the bill was passed, and Brooke Pinto (D-Ward 2), the new public safety chair, said in a joint statement beforehand that the criminal code was “more equitable and just” but that they were open to consideration of further amendments before it was fully implemented.  Officials who support the code revisions have stressed the law would not take effect for three years to give police, courts and other groups time to prepare.  “There is simply too much good in this bill to abandon all of that work, and without any backup plan from the mayor,” Pinto said Tuesday.

Council member Brianne K. Nadeau (D- Ward 1) called the mayor’s veto a “distraction,” given that the council would override it.  “This is political theater to create a perpetual scapegoat whenever there are issues in the future,” Nadeau said. “Do not believe the hype.  The council is not tying the hands of our law enforcement officials or making crime worse.”...

Bowser wrote in her letter to Mendelson that while there was “consensus agreement” on 95 percent of the bill, she opposed particular provisions lowering maximum sentences and allowing for more jury trials.  She said the bill would weaken “already lenient sentencing for gun possession” by reducing the maximum penalties for carrying a pistol without a license and being a felon in possession of a gun.

Gregg Pemberton, chairman of the D.C. Police Union, said in a statement that the law, once enacted, would lead to “violent crime rates exploding more than they already have.” “Every resident should be outraged that the Council has weakened the criminal justice system in a way that makes every neighborhood less safe,” Pemberton said.  “Their actions today are shameful.”

Supporters of the bill have countered the reduction in maximum penalties are in line with what judges are actually imposing.  “This isn’t some huge, mass decarceration measure,” said Patrice Sulton, founder and executive director of the D.C. Justice Lab. “It’s making the code clear, consistent, and constitutionally sound.”

US Supreme Court relists latest cases seeking review of acquitted conduct sentencing

Regular readers surely recall some prior posts about the McClinton case before the US Supreme Court raising issues about the use of acquitted conduct at sentencing.  As detailed before (and linked below), I had the pleasure last year of working with great lawyers at Squire Patton Boggs to file an amicus brief on the acquitted conduct issue in support of petitioner Dayonta McClinton.  (I blogged here about McClinton's case after the Seventh Circuit affirmed his 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case.)

After various delays and more delays, the McClinton case (as well as a number of others raising acquitted conduct issues) was finally considered at last Friday's SCOTUS conference.  I was a bit worried when last week's SCOTUS cert grant list did not include the case, but I was hopeful that we would learn today that the McClinton case was relisted and the docket sheet now reflects that reality.  I am pretty sure that all the other acquitted conduct cases considered in the last SCOTUS conference were also relisted.

More often than not, relisting is a precursor to a later denial of cert, perhaps with a dissent or separate statement being authored by one or more Justices giving their take on the Court's decision not to grant review.  But relisting is also sometimes a precursor to a later granting of cert.  So, as I have said before, I am hopeful, thought still more than a bit pessimistic, about the possibility of 2023 being the year for SCOTUS to take up acquitted conduct sentencing. 

A few recent of many, many prior related posts:

• "Acquitted Conduct Should Not Be Considered At Sentencing"
• A reminder of why "acquitted conduct" sentencing enhancements should be seen as a constitutional abomination 
• Judge Kavanaugh in 2009: "I think acquitted conduct should be barred from the guidelines calculation."
• Split Michigan Supreme Court finds due process precludes use of acquitted conduct at sentencing 
• "Acquitted. Then Sentenced."
• NJ Supreme Court holds, as a matter of state constitutional law, that "fundamental fairness" precludes sentence enhancement based on acquitted conduct 
• Can anyone estimate how many (thousands of) federal prison years have been based on acquitted conduct sentencing? 
• Might SCOTUS finally be ready to take up acquitted conduct sentencing enhancements?
• Hoping and pushing for SCOTUS finally taking up acquitted conduct sentencing enhancements 

UPDATE:  John Elwood at SCOTUSblog has this new post noting the acquitted conduct relists, "Acquitted-conduct sentencing and 'offended observer' standing."