Friday, January 12, 2024

Supreme Court grants cert on Eighth Amendment issue relating to enforcement of public camping restrictions to homeless

As flagged in this recent post, SCOTUS Justices have been actively considering two especially notable Eighth Amendment cases, and this afternoon via this new order list the Court formally granted cert in City of Grants Pass, Oregon v. Johnson.  The cert petition in this case presented the Question Presented this way:

In Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019), the Ninth Circuit held that the Cruel and Unusual Punishments Clause prevents cities from enforcing criminal restrictions on public camping unless the person has “access to adequate temporary shelter.”  Id. at 617 & n.8.  In this case, the Ninth Circuit extended Martin to a classwide injunction prohibiting the City of Grants Pass from enforcing its public-camping ordinance even through civil citations.  That decision cemented a conflict with the California Supreme Court and the Eleventh Circuit, which have upheld similar ordinances, and entrenched a broader split on the application of the Eighth Amendment to purportedly involuntary conduct.  The Ninth Circuit nevertheless denied rehearing en banc by a 14-to-13 vote.

The question presented is: Does the enforcement of generally applicable laws regulating camping on public property constitute “cruel and unusual punishment” prohibited by the Eighth Amendment?

Regardless of the issue, it is often a solid bet that the Supreme Court grants cert with an eye on reversal.  Predicting a reversal here seems especially wise given both the particulars of the ruling below and the apparent views of the current Justices on applying the Eighth Amendment.  But the terms of Eighth Amendment debate (and likely reversal) in this new case could prove both interesting and quite important, especially since the current Court has taken up so few Eighth Amendment rulings in recent years.

January 12, 2024 in Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Feds officially announce decision to pursue death penalty for racist mass murderer in Buffalo

As reported in this AP article, "Federal prosecutors will seek the death penalty against a white supremacist who killed 10 Black people at a Buffalo supermarket, they said in a court filing Friday." Here is more about the decision and some context for a widely-watched case:

Payton Gendron, 20, is already serving a sentence of life in prison with no chance of parole after he pleaded guilty to state charges of murder and hate-motivated domestic terrorism in the 2022 attack. New York does not have capital punishment, but the Justice Department had the option of seeking the death penalty in a separate federal hate crimes case. Gendron had promised to plead guilty in that case if prosecutors agreed not to seek the death penalty.

In a notice announcing the decision to seek the death penalty, Trini Ross, the U.S. attorney for western New York, wrote that Gendron had selected the supermarket “in order to maximize the number of Black victims.” The notice cited a rage of factors for the decision, including the substantial planning leading to the shooting and the decision to target at least one victim who was “particularly vulnerable due to old age and infirmity.”

Relatives of the victims had expressed mixed views on whether they thought federal prosecutors should pursue the death penalty....

The Justice Department has made federal death penalty cases a rarity since the election of President Joe Biden, a Democrat who opposes capital punishment. This is the first time Attorney General Merrick Garland has authorized a new pursuit of the death penalty. Under his leadership, the Justice Department has permitted the continuation of two capital prosecutions and withdrawn from pursuing death in more than two dozen cases. Garland instituted a moratorium on federal executions in 2021 pending a review of procedures. Although the moratorium does not prevent prosecutors from seeking death sentences, the Justice Department has done so sparingly.

It successfully sought the death penalty for a antisemitic gunman who murdered 11 people at a Pittsburgh synagogue, which had been authorized as a death penalty case before Garland became attorney general. It also went ahead last year with an effort to get the death sentence against an Islamic extremist who killed eight people on a New York City bike path, though a lack of a unanimous jury meant that prosecution resulted in a life sentence. The Justice Department has declined to pursue the death penalty in other mass killings. It passed on seeking the execution of a gunman who killed 23 people at a Walmart in El Paso, Texas.

On May 14, 2022, Gendron attacked shoppers and workers with a semi-automatic rifle at a Tops Friendly Market in Buffalo after driving more than 200 miles (320 kilometers) from his home in rural Conklin, New York. He chose the business for its location in a predominantly Black neighborhood and livestreamed the massacre from a camera attached to his tactical helmet.

The dead, who ranged in age from 32 to 86, included eight customers, the store security guard and a church deacon who drove shoppers to and from the store with their groceries. Three people were wounded but survived. The rifle Gendron fired was marked with racial slurs and phrases including “The Great Replacement,” a reference to a conspiracy theory that there’s a plot to diminish the influence of white people.

Prior related posts:

January 12, 2024 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (10)

Thursday, January 11, 2024

Might a couple very different Eighth Amendment issues still get on the SCOTUS docket this Term?

Over at SCOTUSblog, John Elwood has the latest of his always informative "Relist Watch" posts available here with the title "OT2023’s last grants?".  Here is an accounting for that title:

The court will be taking a second look at nine cases.  In some ways, that is to be expected.  The court typically casts a broad net at the second January conference, because it’s usually the last conference at which cases can be granted and heard during the April argument session without expedited briefing.  So this week’s list likely includes the last of the grants to be decided this term.

And here is his accounting of two of the relisted cases dealing with very different Eighth Amendment issues (with links from the original):

The most high-profile case of the bunch is City of Grants Pass, Oregon v. Johnson, which has gained some media attention.  A divided panel of the U.S. Court of Appeals for the 9th Circuit held that it constitutes cruel and unusual punishment in violation of the 8th Amendment to the Constitution for the city of Grants Pass, Oregon, to enforce its anti-camping ordinance against homeless people when the local homeless population outstrips the capacity of local homeless shelters.

Fifteen judges dissented from the 9th Circuit’s refusal to rehear the case en banc. Grants Pass now petitions for review, arguing that the 9th Circuit’s decision is not only egregiously wrong, but entrenches a circuit split. Underscoring the importance of the issue, 24 briefs have been filed by an array of amici, from law enforcementofficials to California Governor Gavin Newsom to the homeless advocates the LA Alliance for Human Rights....

The Supreme Court held in Atkins v. Virginia that it violates the 8th Amendment’s prohibition on cruel and unusual punishments to subject intellectually disabled offenders to capital punishment.  Then the court in Hall v. Florida and Moore v. Texas adopted a definition of intellectual disability that looked to (among other factors) “significantly subaverage intellectual functioning,” and in particular, IQ testing and whether “the lower end of [the offender’s] score range falls at or below 70.”

Joseph Clifton Smith was convicted and sentenced to death for murdering Durk Van Dam so he could steal his boots, tools, and $140.  In repeated IQ tests, Smith scored 78, 75, 74, 74, and 72.  On habeas review, the district court held that Smith was intellectually disabled, noting among other things that because his 72 score had a 3-point margin of error, his IQ could be as low as 69.  The U.S. Court of Appeals for the 11th Circuit affirmed.

In Hamm v. Smith, Alabama argues that the record is inadequate to prove intellectual disability because only the lowest of Smith’s five tests satisfies the threshold, and only then at the outer limit of the standard of error.  In addition, Alabama asks the justices to overrule Hall and Moore or at least clarify that those cases permit courts to consider multiple IQ scores and the probability that an offender’s IQ does not fall at the bottom of the lowest IQ score’s margin of error.

January 11, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Split Massachusetts top court rules "life without parole for emerging adults" violates state constitution

The Massachusetts Supreme Judicial Court today handed down a very legnthy ruling, reflecting a 4-to-3 vote among the justices, addressing a constitutional challenge to LWOP sentencing imposed on persons under 21 at the time of thier offense. The ruling of the majoirty in Commonwealth v. Mattis, No. SJC-11693 (Mass. Jan. 11, 2024) (available here), gets started this way:

When it comes to determining whether a punishment is constitutional under either the Eighth Amendment to the United States Constitution or art. 26 of the Massachusetts Declaration of Rights, youth matters.  See, e.g., Miller v. Alabama, 567 U.S. 460 (2012); Graham v. Florida, 560 U.S. 48 (2010); Roper v. Simmons, 543 U.S. 551 (2005); Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013) (Diatchenko I), S.C., 471 Mass. 12 (2015).  In Miller, supra at 465, 476, the United States Supreme Court struck down mandatory life imprisonment without the possibility of parole for juveniles based in part on the "mitigating qualities of youth."  Approximately one and one-half years later, this court went further than Miller and concluded that sentencing a juvenile to life without parole in any circumstance would violate art. 26.  See Diatchenko I, supra at 669-670.

The defendant, Sheldon Mattis, was convicted of murder in the first degree, among other charges, and was sentenced to a mandatory term of life in prison without the possibility of parole, see G. L. c. 265, § 2 (a). Commonwealth v. Watt, 484 Mass. 742, 754-756 (2020).  On appeal, he challenged the constitutionality of his sentence as applied to him. He argued that because he was eighteen years old at the time of the murder, he is entitled to the same protection as juvenile offenders (i.e., those from fourteen to seventeen years of age) convicted of murder in the first degree, who receive a term of life with the possibility of parole. See G. L. c. 265, § 2 (b).

Here, we consider whether our holding in Diatchenko I should be extended to apply to emerging adults, that is, those who were eighteen, nineteen, and twenty years of age when they committed the crime.  Based on precedent and contemporary standards of decency in the Commonwealth and elsewhere, we conclude that the answer is yes.

There are a number of concurrences and dissents, and here are a few paragraphs paragraph from the start of the lead dissent authored by Justice Jowy:

I cannot say that society, through its elected officials, may not express its revulsion of the crime of murder in the first degree by imposing a punishment of life without the possibility of parole on adults without offending our Declaration of Rights.  Therefore, I respectfully dissent....

Our assessment under art. 26 is not whether the mandatory imposition of life without the possibility of parole for individuals from eighteen to twenty-one is, in our view, wise, prudent, or even best for society.  Our inquiry is limited to whether the punishment, chosen by the Legislature, is so disproportionate that it reaches the level of cruel or unusual. See Diatchenko I, 466 Mass. at 669.  Because, under our contemporary standards of decency and precedent, the mandatory imposition of life without the possibility of parole on adults who commit murder in the first degree when they are from eighteen to twenty-one is not "so disproportionate" that "it 'shocks the conscience and offends fundamental notions of human dignity,'" id., quoting Cepulonis, 384 Mass. at 497, the sentence does not violate art. 26's proscription against cruel or unusual punishment. It therefore must be upheld.

January 11, 2024 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (15)

Wednesday, January 10, 2024

Federal district judge concludes condemned has not shown Alabama's nitrogen gas execution protocol is constitutionally infirm

As reported in this Reuters article, a "federal judge ruled on Wednesday that Alabama can proceed later this month with the first execution by nitrogen gas asphyxiation, saying that the condemned prisoner was unlikely to show the new method amounts to cruel or unusual punishment." Here is more:

Kenneth Smith, convicted for a murder-for-hire committed in 1988, is scheduled to be executed in Alabama on Jan. 25 using the method, in which execution officials will bind a mask to his face connected to a cylinder of nitrogen intended to deprive him of oxygen....

Judge R. Austin Huffaker of the U.S. District Court in Montgomery, Alabama, ruled against Smith, who sought an injunction halting the execution to allow his litigation to proceed. "Smith is not guaranteed a painless death," Huffaker wrote in his opinion, citing a U.S. Supreme Court precedent. He wrote that Smith "has not shown the current Protocol is sure or very likely to cause substantial risk of serious harm or superadded pain."

Smith, 58, is one of two people alive in the U.S. to have survived a judicial execution attempt: Alabama botched his previously scheduled execution by lethal injection in November 2022 when multiple attempts to insert an intravenous line failed. Robert Grass, a lawyer representing Smith, said he planned to appeal the ruling.

The full 48-page opinion is available at this link, and here is part of a key final section of the court's discussion:

So, it is Smith’s burden to show a substantial likelihood that he will succeed on his Eighth Amendment claim before the court will enjoin his execution to allow him to litigate his challenge, and for good reason.  The status quo here is that Smith will be executed by nitrogen hypoxia on January 25, 2024, using the ADOC’s current Protocol.  Courts presume, based upon the history and development of capital punishment in this country and the legislative process, that the Defendants do not “seek[] to superadd terror, pain, or disgrace to their executions” unless and until a condemned person can make the requisite showing under Baze and GlossipBucklew, 139 S. Ct. at 1124–25 (citing Baze and Glossip).

Considering all the evidence presented and the parties’ arguments, Smith has not met that burden.  His evidence and allegations amount to speculation, at best “scientific controvers[y,]” well short “of showing that the method creates an unacceptable risk of pain.” Glossip, 576 U.S. at 882, 884.  As in Glossip, Smith’s own experts effectively conceded that they lacked evidence to prove Smith’s case beyond dispute. See id. at 884.  Proof of some theoretical risk does not clear Smith’s high hurdle: “[s]imply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual.” Baze, 553 U.S. at 50.  Smith has argued and provided some evidence that the Protocol could theoretically result in some risk of pain if many other events occur, like vomiting or the dislodging of the mask during the execution procedure but — far from providing a feasible, readily implemented alternative nitrogen hypoxia protocol with his list of proposed amendments to the Protocol or his cursory allegations and evidence about the firing squad — he has not shown the current Protocol is sure or very likely to cause substantial risk of serious harm or superadded pain when compared to either of his alleged alternatives, nor that either of his alternative methods would in fact significantly reduce that risk if used instead.

Smith is not guaranteed a painless death.  Bucklew, 139 S. Ct. at 1124.  On this record, Smith has not shown, and the court cannot conclude, the Protocol inflicts both cruel and unusual punishment rendering it constitutionally infirm under the prevailing legal framework.  Having failed to show a substantial likelihood of success on the merits, Smith is not entitled to injunctive relief on his Eighth Amendment claim.

Though Smith is surely going to appeal to the Eleventh Circuit and SCOTUS, I doubt he will get a different outcome in the weeks ahead.

January 10, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (10)

"Six U.S. Execution Methods and the Disastrous Quest for Humaneness"

The title of this post is the title of this book chapter authored by Deborah Denno now available via SSRN. Here is its abstract:

This chapter examines the history and current status of the United States' six execution methods: hanging, firing squad, electrocution, lethal gas, lethal injection, and nitrogen hypoxia.  While lethal injection remains the most common technique, inmates have continuously challenged injection's experimental and scientifically dubious procedures on the grounds they are inhumane and unconstitutional.  Indeed, this country's ongoing transition from one technique to another — then back again — abounds with legislative, judicial, and correctional evidence detailing why each method failed so appreciably to become more civilized than the method superseded.  This chapter concludes that every execution state's desire to ensure the death penalty's survival at any cost propels each execution method's celebrated introduction and disastrous perpetuation.

January 10, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Tuesday, January 09, 2024

Top side SCOTUS brief now files in Erlinger v. US, the case considering Apprendi's application to part of ACCA

I still expect the Pulsifer case about the FIRST STEP Act's expansion of the mandatory minimum statutory safety valve (the "and" versus "or") to prove to be the most interesting and impactful sentencing case from the current SCOTUS Term.  Pulsifer was the first case argued to start the Term back in October (coverage here), and I am hopeful we might get an opinion in the coming weeks.  But while we wait, I just saw there is new reading material for SCOTUS sentencing fans, as the first set of merits briefs were filed last week in Erlinger v. US

Ehlinger, as noted when cert was granted in November, had this formal Question Presented by the federal government:  "Whether the Constitution requires that a jury find (or the defendant admit) that a defendant’s predicate offenses were 'committed on occasions different from one another' before the defendant may be sentenced under the Armed Career Criminal Act of 1984, 18 U.S.C. 924(e)(1)."  In an earlier post, I flagged that the US Solicitor General, in response to a cert petition, had told SCOTUS that, in light of the  new "standard for determining whether offenses occurred on different occasions [set forth] in Wooden v. United States," the feds believe that question has to be answered yes.

Becuase both the defendant and the feds now agree that aplication of a part of ACCA implicates Apprendi rights, the top-side merits briefs filed last week come from both the defendant and the US Solicitor General (and can be accessed here from the SCOTUS website).  Both briefs make for interesting reads, though I am going to be even more interested to see next month what the opposing brief from the appointed amicus has to say.

January 9, 2024 in Blakely in the Supreme Court, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

"Should a man convicted of murder help set D.C. sentencing guidelines?"

The title of this post is the headline of this new lengthy Washington Post article.  Here are excerpts:

The D.C. Council is set to decide Tuesday whether a man who spent 27 years behind bars for murder should serve on a city commission that drafts and modifies criminal sentencing guidelines — a nomination that is likely to spark heated debate.

Proponents argue that the appointment would give the panel a new perspective on the issue of incarceration, while the District’s top prosecutor warned that the nominee, Joel Castón, could push the commission in a soft-on-crime direction.

Castón, in a Monday evening interview, said Graves misrepresented his character and incorrectly assumed his perspective simply because he has been incarcerated....

Castón was released from prison last year, nearly three decades after he killed an 18-year-old man in a 1994 parking lot shooting. In 2021, while still a prisoner, he was elected to the D.C. Advisory Neighborhood Commission, becoming the first incarcerated person voted into public office in the city.

Council Chairman Phil Mendelson (D), who nominated Castón to the 12-member sentencing commission, said in an interview that the panel expressed interest in having a previously incarcerated person join the group. Linden Fry, the commission’s executive director, said members began discussing the addition of a person who had been incarcerated after they learned “how other sentencing commissions in the United States have added returned-citizen members.”...

But Matthew M. Graves, the U.S. attorney for the District, whose office prosecutes felony cases in the city, questioned Castón’s integrity in a letter to Mendelson.  Graves said the nominee would be likely to advocate for lesser sentencing ranges that would make it even harder for prosecutors to secure prison time for people convicted of firearm violations in the nation’s capital....

Minimum and maximum sentences for crimes are established by District law, and D.C. Superior Court judges impose prison time within those ranges. In deciding what a particular sentence should be, judges rely on a manual containing elaborate formulas for calculating an appropriate prison term based partly on a defendant’s criminal background and the specifics of the offense.  The resulting guidelines are advisory, and judges can depart from them — although data published by the commission last year showed that judges’ sentences hewed to the recommendations in nearly 97 percent of felony cases.  The sentencing commission governs the manual and any revisions to it.

This WaPo piece provides a lot more background and context for the notable sparring over this potential appointment to the District’s Sentencing Commission.  And here are some other local recent media pieces have recently discussed these matters:

The recent five-page letter from US Attorney Michael Graves to the Members of the Council of the District of Columbia, which is dated January 2, 2024, is available at this link.

January 9, 2024 in Advisory Sentencing Guidelines, Who Sentences | Permalink | Comments (5)

Monday, January 08, 2024

CCRC releases latest annual review, "Advancing Second Chances: Clean Slate and Other Record Reforms in 2023"

Annual-Report-CoverOver at the Collaterial Consequence Resource Center, the CCRC staff have this new post noting the release of the latest annual report reviewing new state record relief laws.  This new publication, authored this year by Margaret Love and Nick Sibilla, is titled "Advancing Second Chances: Clean Slate and Other Record Reforms in 2023."  Here is how the introductory post gets started:

At the beginning of each year since 2016, CCRC has issued a report on legislative enactments in the year just ended, describing and evaluating new laws aimed at reducing the barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life. This year’s report, “Advancing Second Chances: Clean Slate and Other Record Reforms in 2023,” is now available.

Our annual legislative reports have documented the steady progress of what we characterized three years ago as “a full-fledged law reform movement” aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system. Between 2018 and 2022, more than 500 new record reforms were enacted by all but two states.  

Last year we reported that the legislative momentum had slowed somewhat, and this year it has slowed still further.  Only a handful of states enacted significant new record reforms in 2023, most in the form of new record-clearing schemes. We attribute this slowdown in part to how much has been accomplished in legislatures across the country in the past seven years. For example, more than half the states now allow people with a felony conviction to vote unless they are actually incarcerated, a number that has doubled since 2016.  In addition, most states have also taken steps to limit public access to some criminal records, and to ensure that employers and licensing agencies do not discriminate against people with a criminal history. Many have extended diversionary dispositions well beyond the class of first offenders who were uniquely eligible for non-conviction relief a decade ago. 

In 2023, 20 states, the District of Columbia, and the federal government enacted 36 separate pieces of legislation and took executive action to restore rights and opportunities to people with an arrest or conviction history.

As in past years, more than half of the new laws in 2023 involved individual record clearing. Because of the significant progress on this front in recent years, many of the laws enacted in 2022 represent measured changes to existing record relief schemes rather than radical new reforms. Nonetheless, three states enacted major new automatic “clean slate” record schemes while others expanded eligibility for petition-based sealing. A handful of states continued to remove marijuana convictions from public view, and still other states trimmed barriers to relief by automating the application process, reducing waiting periods, or eliminating obstacles represented by outstanding court debt (fines and fees).

In addition, many of the new laws limited consideration of criminal records in economic settings, regulating employment and occupational licensing, or removing barriers to restoring a driver’s license.  The U.S. Small Business Administration took important steps toward eliminating restrictions in federally guaranteed loans.

Our sixth annual legislative report card (Reintegration Awards for 2023, reprinted below) recognizes the most productive legislatures in 2023, and notes that there are now only two states that have enacted no record reforms since our reporting began in 2016. As in the past, the state legislatures that have enacted the most significant reforms span the political spectrum, from Minnesota and New York to Louisiana and South Carolina.

January 8, 2024 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

A range of notable death penalty stories from a range of states to kick off 2024

A number of capital headlines/stories from a number of states caught my eye this morning.  Here's a quick round-up of some pieces from the start of the year:

From Alabama, "Alabama convicted killer waits to be executed this month by nitrogen gas"

From California, "Where Los Angeles County district attorney candidates stand on the death penalty"

From Florida, "Overwhelming Percentage of Florida’s Hurst Resentencing Hearings End in Life Sentences"

From Indiana, "The death penalty: Inside Indiana’s complicated history with capital punishment"

From Mississippi, "State still wants execution dates set for 2 men on Mississippi's death row"

From Missouri, "Missouri bill seeks to make rape, child sex trafficking punishable by death"

From Nebraska, "Nebraska Senator introduces bill to make nitrogen asphyxiation a legal method of execution"

From Utah, "Utah Judge Clears the Way for Use of the Firing Squad"

From West Virginia, "Senate President will push reinstatement of death penalty in WV"

From Wyoming, "The Last Time Wyoming Used the Death Penalty was in 1992"

January 8, 2024 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Kodak Black struggling on supervised release after Prez Trump commuted his federal prison term

As detailed in this official statement, former Prez Trump on his last day in office commuted a lot of sentences, including shaving more than two years off the 46-month federal prison sentence given to Bill Kapri, more commonly known as Kodak Black.  But that act of clemency did not eliminate three years of supervised release for Black.  And this new press article, headlined "EXCLUSIVE: Kodak Black Could Serve Original Jail Sentence Donald Trump Commuted In 2020 [sic]," caught my eye today because it suggests he could be sent back to prison for some time.  And then I found this press article from a few weeks ago, headlined "Kodak Black won’t be home for Christmas. Judge says he is a ‘danger to the community’," reporting that Black is already back behind bars.  

First the backstory from the December 2023 Miami Herald piece (which uses the term "probation" to reference what I think is actually federal supervised release):

Rapper Kodak Black, busted yet again on state drug possession charges, won’t be home for Christmas.  Black, whose legal name is Bill Kapri, has been held since last week in a federal detention center in Miami after violating his probation on a gun-buying conviction dating back more than four years.

Federal Magistrate Judge Jacqueline Becerra said she would not release the 26-year-old Pompano Beach rapper to attend a drug treatment facility in Arizona after his lawyer Bradford Cohen openly acknowledged he had an addiction problem.  “If you’re buying drugs or using drugs, you’re a danger to the community,” Becerra said, leaving the final decision on whether Black should continue to be detained on the probation violation up to U.S. District Judge Jose Martinez. A federal prosecutor said Black should not be released for drug rehab out of state. “If we let him out today to go out to Arizona, we don’t know what’s going to happen,” Assistant U.S. Attorney Bruce Brown said in court.

In February, Broward Circuit Court Judge Barbara Duffy ordered Kodak to stay at a rehabilitation facility for 30 days after an hours-long hearing....

The probation violation stems from a 2019 case in which Kodak pleaded guilty to lying on a background check form when he purchased handguns at a Hialeah weapons store, federal court records show.  He was sentenced to 46 months in prison, though it was commuted by former President Donald Trump in January 2021, shortly before he left office.

The rapper, however, was placed on probation for three years, with the period ending in January 2024. Two weeks ago, Plantation police say they found the rapper asleep in a Bentley with drugs on him. He was charged with cocaine possession, evidence tampering, and improperly stopping, standing or parking.

And now the new "exclusive" update from AllHipHop:

Kodak Black will remain in jail for at least the next two weeks, AllHipHop can confirm.  The Pompano Beach, Florida native (legal name Bill K. Kapri) will have the final hearing regarding revocation of his supervised release in Miami Division before Judge Jose E. Martinez on January 22 at 11:30 a.m. ET.  If the hearing doesn’t go in his favor, Kodak Black could wind up serving the original sentence Donald Trump commuted in 2020.

The latest legal troubles for Kodak Black stem from an incident in Plantation, Florida last month when police discovered his Bentley SUV parked in a roadway with the engine still running.  When they approached the vehicle, they said Kodak Black was asleep behind the wheel and there was a strong odor of burnt marijuana coming from the vehicle.  They also claimed they found rolling papers, weed residue near the center console and the smell of alcohol.

Cops then alleged Kodak Black’s mouth was “full of white powder.” Nearby was a white rock-like substance, which he initially claimed was Percocet. After a test of the substance, along with a white plastic bag in his pocket, it was confirmed the residue was actually cocaine.  Consequently, he was charged with cocaine possession, tampering with or fabricating physical evidence and improper stop, stand or park.

Kodak Black has a string of legal troubles since his rise to rap notoriety.  In July 2022, he was taken into custody on charges of possessing a controlled substance without a prescription and trafficking oxycodone. Officers pulled him over in Fort Lauderdale for tinted windows, which appeared darker than the legal limit.  A routine check revealed the vehicle’s registration and Kodak Black’s driving license were expired.  They also found nearly $75,000 in cash and a small clear bag containing 31 white tablets that were later identified as oxycodone.  He was ordered to drug rehab.

I flagged this story not only because Kodak Black is a celebrity with many high-profile supporters, but also because it serves as a good example of how even a presidential clemency grant can serve to provide very little protection against further criminal justice entanglements.

January 8, 2024 in Celebrity sentencings, Clemency and Pardons, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Friday, January 05, 2024

A more detailed accounting of Jan 6 riot sentencings

In this post yesterday, I noted a new New York Times review and accounting of the prosecutions of January 6 rioters three years after their misdeeds.   A helpful reader alerted me to this new Washington Post piece which provides an even more detailed accounting of sentencing outcomes for this large group of federal defendants.  The WaPo piece is headlined "Most Jan. 6 defendants get time behind bars, but less than U.S. seeks," and here are excerpts from a lengthy article worth reading in full:

Judges have ordered prison time for nearly every defendant convicted of a felony and some jail time to about half of those convicted of misdemeanors.

But in the vast majority of the more than 700 sentencings to date, judges have issued punishments below government guidelines and prosecutors’ requests. Though more than 60 percent of the defendants sentenced so far have received jail or prison terms, the judges have gone below federal sentencing guidelines in 67 percent of the cases, Post data shows. Nationally, federal judges go below the advisory guidelines about 51 percent of the time, according to federal statistics....

Sentencings greatly increased in 2023, with nearly 370 defendants sentenced in one year, after less than 360 were sentenced in the previous two years. And the percentage of people receiving terms of incarceration increased from 56 percent to 64 percent as more serious felony cases were completed.

For those charged with lesser misdemeanors, about half received a jail sentence averaging 58 days, while about a third received probation and 18 percent were ordered to spend time in home confinement. The incarceration rate for Jan. 6 misdemeanants is higher than for other federal misdemeanants because it came in the context of a mob assault that helped make the breach possible. For those convicted of felonies, 94 percent were ordered behind bars, a consistent rate every year.

Of 244 felony sentencings for all charges, the average sentence has been 41 months, or about 3½ years, The Post’s data shows. For those who pleaded guilty, the average felony sentence is now about 2½ years, but those who were convicted at trial received an average of 5 years in prison....

The average sentence for those convicted of assaulting a police officer is more than 45 months, The Post’s data shows. The average sentence for those convicted of obstructing an official proceeding has been 39 months. Nearly 400 defendants have been placed on probation, either as their full sentence or after their incarceration, for periods that extend beyond this November’s presidential election....

The sentencings by the 15 judges appointed by Democratic presidents are not much different from the nine appointed by Republicans. Those appointed by Democrats have imposed jail or prison sentences in 65 percent of the cases, compared with 63 percent of cases sentenced by Republican appointees, according to Post data....

Four Trump appointees have imposed incarceration in 57 percent of cases, compared with 67 percent for nine Obama appointees and three George W. Bush appointees. Three Biden appointees have imposed jail or prison only 20 percent of the time, but they have heard only 30 cases and four felonies. Only one active judge has sent every single defendant to jail or prison: Tanya S. Chutkan, the judge handling the D.C. prosecution of Trump, has ordered all 39 of her defendants behind bars.

January 5, 2024 in Celebrity sentencings, Data on sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (8)

Two new papers examining administrative law issues around USSC's new sentence reduction guideline

Jaden Lessnick has posted to SSRN recently two notable new papers discussing administrative law issues related to the US Sentencing Commission's recent amendment to USSG § 1B1.13, the sentence reduction policy statement. Here are the titles, links and part of the abstracts of these pieces:

"Will Federal Compassionate Release Survive the Death of Chevron?"

This Essay charts an alternate path forward. It offers a theory of compassionate release untethered from the comfortable reliance on Chevron.  By parsing the statutory text and tracing the Court’s Sentencing Commission jurisprudence, this Essay shows why the policy statement binds federal courts even in the absence of Chevron deference.  On this theory, Chevron has only ever been a secondary justification for the application of the recent policy statement.  Whether Chevron lives or dies, courts are duty-bound to yield to the Commission’s determination that some changes in the law are extraordinary and compelling reasons for a sentence reduction.

"Is U.S.S.G. § 1B1.13 an Elephant, and Is § 994(t) a Mousehole? Why the Sentencing Commission’s New Compassionate Release Policy Statement Does Not Violate the Major Questions Doctrine"

This Article debunks the recent suggestion by many that the Commission’s updated compassionate release policy statement violates the major questions doctrine.  After describing the status quo lay-of-the-law, this piece proceeds through the text and statutory history of the sentence-reduction statutes to show why § 1B1.13’s changes-in-the-law provision is unlike the actions invalidated in the Court’s recent major questions cases, such as West Virginia v. EPA and Biden v. Nebraska.  Though the amended policy statement has been the source of recent political controversy, this Article shows that the policy statement actually reflects a narrowing of the Commission’s historical authority.  It concludes by confronting the nascent split among the Court’s conservatives on the status of the major questions doctrine’s clear-statement rule, contending that under either view, the Commission’s actions had clear congressional authorization.

January 5, 2024 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, January 04, 2024

Recapping the state of Jan 6 riot prosecutions and sentences at three-year mark

The New York Times gets a slight jump on the three-year anniversary of the Jan 6 riot with this new piece headlined, "The Jan. 6 Riot Inquiry So Far: Three Years, Hundreds of Prison Sentences."  Here are some excerpts:

Nearly three years after a mob attacked the Capitol on Jan. 6, 2021, in support of former President Donald J. Trump, the criminal investigation into the events of that day pushes on. Prosecutors have called the riot inquiry the largest in the history of the Justice Department, and there is no doubt it is vast by any measure.

Every week, a few more people are arrested. As of December, about 1,240 people had been arrested in connection with the attack, accused of crimes ranging from trespassing, a misdemeanor, to seditious conspiracy, a felony. More than 350 cases are still pending.

Around 170 people have been convicted at trial, while only two people have been fully acquitted. Approximately 710 people have pleaded guilty and among those, around 210 pleaded guilty to felony offenses.

After being convicted or pleading guilty, more than 720 people have received sentences so far and more than 450 of them were sentenced to periods of incarceration, ranging from a handful of days to more than 20 years....

While some of the cases have attracted nationwide attention, particularly those involving far-right groups like the Proud Boys and the Oath Keepers militia, most of the prosecutions have flown beneath the radar, unfolding in quiet hearings often attended only by the defendants and their families. These proceedings have helped to flesh out the story of how an angry crowd of Mr. Trump’s supporters, egged on by his lies about a stolen election, stopped the democratic process, if only for several hours.

The bulk of the riot cases, more than 710, were resolved without trial through guilty pleas.  As of the Justice Department’s latest update in December, about 170 people have gone to trial in Federal District Court in Washington, in front of either a jury or just a judge, with a vast majority resulting in convictions.

As for punishment, more than 450 people have been sent to jail or prison, with the longest term so far being the 22-year sentence imposed on Enrique Tarrio, the former leader of the Proud Boys. Several people who were not associated with extremist groups but who assaulted the police in what officers have described as a “medieval” battle outside the Capitol have been sentenced to a decade or more behind bars....

One of the most common charges used against rioters has been entering or remaining in a restricted federal building or grounds. More than 1,100 have faced that count.

About 450 people have been charged with assaulting or impeding law enforcement officers at the Capitol, and about 330 have been accused of obstruction of the certification of the election that was taking place inside the building on Jan. 6. But the Supreme Court recently announced that it was going to review the obstruction charge to see if it should apply to the Capitol attack.

January 4, 2024 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (17)

"Acquitted But Not Free: How Sentencing Based on Acquitted Conduct Undermines the Jury’s Purpose"

The title of this post is the title of this new student comment authored by Ethan Evans and now available via SSRN.  Here is its abstract:

Acquitted conduct sentencing is a controversial practice that allows judges to increase a defendant's sentence based on facts tried before a jury and not found beyond a reasonable doubt.  This practice undermines the effect of an acquittal, the right to a jury trial, and due process of law.  In 1997, the Supreme Court authorized this practice under a double jeopardy challenge in United States v. Watts.  However, the Court refused to hear the drastic consequences of that decision earlier this year in 2023.  In McClinton v. United States, the district court increased a defendant’s sentence from a range of five to six years to almost twenty by finding he was responsible for murder, a charge explicitly rejected by the jury.  The Supreme Court declined to hear the issue, despite recognizing the serious constitutional concerns, stating that the proper avenue for change is the United States Sentencing Commission.  While an amendment to the United States Sentencing Guidelines may discourage the practice, an absolute prohibition on acquitted conduct sentencing is needed.

This comment outlines the problems with acquitted conduct sentencing under the Sixth Amendment’s right to a jury trial and the Due Process Clause of the Fifth and Fourteenth Amendments. Looking at the possible avenues for change, this comment critiques the United States Sentencing Commission’s newly released draft amendment restricting the use of acquitted conduct.  While the current draft amendment would limit the use of acquitted conduct to rare instances where a departure may be necessary, an absolute prohibition is required to uphold respect for a jury’s acquittal.  This is because the purpose of the jury, as envisioned by the founders, was to protect against the government unjustly depriving an individual of liberty.  Thus, a judge cannot increase a criminal penalty where the jury explicitly refuses to authorize punishment, without superseding their role as a guard against the government.

January 4, 2024 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (14)

Tuesday, January 02, 2024

Framing how holiday federal clemencies should be remembered after the holidays

As noted in this post, Prez Biden used his clemency pen in notable ways on the Friday just before Christmas. To kick off the new year, Rachel Barkow and Mark Osler have this new Hill commentary that seeks to frame what's really memorable and important about his latest actions. The piece's headline, "Biden’s marijuana clemency grants are a small present in a big box," captures on of its themes. Here are excerpts from a piece that should be read in full:

Most of President Biden’s Dec. 22 grants of clemency were a small gift in a big box. His claim to “have exercised my clemency power more than any recent predecessor has at this point in their presidency” is pure hyperbole, but underneath might be the seed of a truly significant movement towards more meaningful uses of federal clemency.

President Biden’s clemency grants covered two categories.  The first was in the big box.  It was his extension of an earlier categorical pardon that covers people convicted of simple possession or use of marijuana, or “attempted simple possession of marijuana,” including those convicted in the District of Columbia and on federal lands.

Biden’s original announcement of this categorical pardon last year came with great fanfare. It got lots of favorable press.  But underneath all the gift wrapping and tissue paper, there is not much there. Not a single person was released from prison as a result of Biden’s proclamation.  There is a popular conception that many people are moldering away in federal prisons for simply having some marijuana.  This just isn’t true and hasn’t been for decades....

It is the second category of grants from Dec. 22 that holds the promise of significant clemency relief.  President Biden commuted the sentences of 11 people who were serving extraordinarily long sentences for nonviolent drug distribution offenses. Four of the people were serving life sentences and all but one of the others were serving sentences of 20 years or more.

Eleven grants from a backlog of more than 16,000 clemency petitions waiting for action is hardly grounds for applause. But sometimes big things come in small packages.  These are exactly the kinds of cases that President Biden should be focused on. They might not get the press of the big marijuana proclamation, but these are the cases where clemency really matters. Unjust sentences that should have never been issued will be corrected as a result of those 11 grants. Eleven human beings will be released from prison.

January 2, 2024 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, January 01, 2024

Chief Justice briefly mentions sentencing in AI discussion in his annual year-end report

The Chief Justice of the United States always closes out a calendar year by releasing a year-end report on the federal judiciary.  The 2023 version of this report has an intriguing disquisition on the Federal Judiciary's "steps into the modern era of information technology."  The whole essay is worth a read, and here are snippets:

As 2023 draws to a close with breathless predictions about the future of Artificial Intelligence, some may wonder whether judges are about to become obsolete.  I am sure we are not — but equally confident that technological changes will continue to transform our work....

At its core, AI combines algorithms and enormous data sets to solve problems.  Its many forms and applications include the facial recognition we use to unlock our smart phones and the voice recognition we use to direct our smart televisions.  Law professors report with both awe and angst that AI apparently can earn Bs on law school assignments and even pass the bar exam. Legal research may soon be unimaginable without it....

Many professional tennis tournaments, including the US Open, have replaced line judges with optical technology to determine whether 130 mile per hour serves are in or out.  These decisions involve precision to the millimeter.  And there is no discretion; the ball either did or did not hit the line.  By contrast, legal determinations often involve gray areas that still require application of human judgment.

Machines cannot fully replace key actors in court.  Judges, for example, measure the sincerity of a defendant’s allocution at sentencing.  Nuance matters: Much can turn on a shaking hand, a quivering voice, a change of inflection, a bead of sweat, a moment’s hesitation,a fleeting break in eye contact. And most people still trust humans more than machines to perceive and draw the right inferences from these clues.

In addition to notable tech talk, the 2023 year-end report includes federal court caseload data in an appendix.  Here are some data excerpts that might interest federal criminal justice fans:

Criminal appeals were down three percent from the prior year to 9,649....  Prisoner petitions accounted for 23 percent of appeals filings (a total of 9,089), and 87 percent of prisoner petitions were filed pro se, compared with 36 percent of other civil filings....

The federal district courts docketed 66,027 criminal defendant filings (excluding transfers) in FY 2023, a reduction of three percent from the prior year.  The largest categories were filings for defendants accused of immigration offenses, which increased three percent to 19,645, and filings for defendants charged with drug offenses, which fell 8 percent to 18,103....

A total of 122,824 persons were under post-conviction supervision on September 30, 2023, a decrease of less than 1 percent from the prior year.  Of that number, 110,112 were serving terms of supervised release after leaving correctional institutions, an increase of less than 1 percent from FY 2022.  Cases activated in the pretrial services system, including pretrial diversions, fell three percent to 71,297.

January 1, 2024 in Data on sentencing, Who Sentences | Permalink | Comments (0)

Sunday, December 31, 2023

That was the year that was: a few thoughts on crime and punishment in 2023

That_Was_The_Year_That_WasI am quite certain I cannot provide a truly thorough or fully thoughtful review of 2023 in crime and punishment and sentencing in the United States.  But I can flag a few matters that, at least for a law professor like me, helped to define the year that was in this legal space.  (And, of course, I savor any excuse to parrot language from my favorite commedy album.  The first track from that album remains depressingly timely.)  So here goes as I provide an abridged review the year that was:

Indictments and more indictments: Though we have not reached sentencings or even convictions in big cases, lots of indictments of lots of high-profile political figures have been the biggest on-going legal story and saga of 2023.  Of course, the four indictments of former Prez (and leading Prez candidate) Donald Trump serve as the central part of this remarkable story.  And Trump's many indictments certainly have shaped various political realities this year, and lower court legal developments in these cases have already starting reaching SCOTUS.  The various indictments and machinations of other notable political figures like Hunter Biden and George Santos (and Trump's co-defendants) would surely be seen as masive stories in 2023, but for everything seeming small in Trump's shadow.  

After years of increases, crime now in historic decline: Though the particulars and reasons are still debated, it is without debate that 2020 to 2022 brought significant increases in crimes in the US.  But 2023 finally saw an encouraging turn around, and here are a few press pieces and substacks that helps to capture these encouraging realities:

Second Amendment jurisprudence finally impacting criminal enforcement: Though we are a full 15 years since the Supreme Court in Heller first formally determined that individuals have an enforceable constitutional right to keep and bear arms under the Second Amendment, lower courts long found various ways to uphold just nearly all broad laws creating criminal prohibitions on certain individuals keeping and bearing arms.  But in mid 2022, the Supreme Court recast Second Amendment jurisprudence around originalist principles via its ruling in Bruen, and courts throughout much of 2023 starting striking down an array of criminal gun prohibitions.  Most notably, a number of lower federal courts found a number of provisions of federal law criminally prohibiting gun possession by certain persons unconstitutional.  One case on this front, Rahimi, is pending before SCOTUS and oral argument suggested the Justices are disinclined to agree with the Fifth Circuit's view that a criminal bar on gun posession by those subject to domestic violence restraining orders is unconstituional.  But exactly how Rahimi gets resolved is sure to have a huge impact on a range of other gun laws in the months and years ahead.    

Major guideline reforms from fully loaded US Sentencing CommissionThough the US Sentencing Commissioner finally and formally returned to full agency activity with confirmed appointees in mid 2022, the actions of a fully-loaded Commission really came to fruition through 2023.   In this post from a few days ago, I noted the Commission's own accoutning of its major 2023 work.  But the USSC's activity on so many important fronts for the federal sentencing system defies easy summary.  As I have explained before, I believe the most consequential and significant action by the USSC this past year has been its intricate amendments to the guidelines' criminal history rules and its decision to make those amendments retroactive.  But its revision of the sentence reduction ("compassionate release") guideline is also so very important, and its new proposed amendments for the coming year address some fundamental features of the entire guideline sentencing structure.  From 2019 through 2022, I lamented the harms and opportunity costs of the USSC lacking a quorum, and the new Commission in 2023 proved in many ways how a vibrant federal sentencing agency can contribute so much to modern sentencing law, policy and practice. 

December 31, 2023 in Recap posts, Who Sentences | Permalink | Comments (2)

Outgoing Louisiana Gov commuting lots of life sentences to create parole possibilities

As detailed in prior posts here and here, there has been a considerable recent effort in the Pelican State to try to get outgoing Gov John Bel Edwards to commute the capital sentences of 57 murderers on the state's death row.  That effort proved unsuccessful, but with less fanfare Gov Edwards has been using his clemency pen recently to grant hope to another notable prisoner polulation.  This lengthy local article, headlined "On way out, Gov. John Bel Edwards ramps up relief for life prisoners," provides some of the details.  Here are excerpts:

Gov. John Bel Edwards has spent his waning months in office doling out mercy at a pace unseen in decades from a Louisiana governor. Edwards has commuted the sentences of 70 prisoners since August, among 123 commutations he’s issued over his final year in office, according to data from the state Board of Pardons and Parole.  That’s by far the highest tally of any single year over his two terms.

In the bulk of those decisions, Edwards turned life sentences for long-serving prisoners convicted of murder into a number of years — ranging from 35 to 99 — at the board’s recommendation.  Those pen strokes enabled the immediate release of several of the longest-serving prisoners on “good time,” while bestowing parole eligibility to scores of others who were sentenced to life.  The parole board has granted release to many of them since.  Francis Abbott, the board’s executive director, said that 41 of the 123 people granted commutations this year by the governor remain in prison.

A 2021 law expanded parole eligibility to long-serving prisoners who are not serving life, once they’ve completed 20 years in prison and reached the age of 45.  They still must win the approval of the parole board to go free.  More than 90% of the 123 commutations Edwards has granted in 2023 this year went to prisoners serving life sentences, the data show.  The vast majority have served at least 20 years; about half spent the last 30-plus years locked up.

Edwards commuted the life sentence of Leon Brent, the longest-serving prisoner on the list, to 99 years on Aug. 1, and he was released the next day under the good-time calculus at the time.  Now in his 80s, Brent was convicted of aggravated rape in East Baton Rouge Parish and sentenced in 1964....  The average age of the 123 prisoners at their clemency hearings was 57. They include dozens who were sentenced in the 1980s or earlier. On a per-capita basis, Louisiana has far more people serving life without parole than any other state.

“The men and women whose sentences were commuted by the governor represent a fraction of our state’s 4,000-plus lifer population,” said Andrew Hundley, executive director of the Louisiana Parole Project, which supports and houses incarcerated people reentering society.  “Most of them had served more than three or four decades in prison and their records indicate clear evidence of remorse and rehabilitation.  These individuals were thoroughly vetted by an open and public process, and they have proven they are worthy of a second chance.”...

Edwards, a Democrat in an increasingly GOP-dominated state, has picked up the pace in the past few months. More commutations could come before Jan. 8, when he cedes the office to Gov.-elect Jeff Landry.  As attorney general, Landry blocked a push by advocates, which Edwards supported, for the pardon board to hear a stack of 55 clemency requests from death row prisoners and make recommendations before he leaves office. Those prisoners were seeking to have death sentences converted to sentences of life without parole.

Edwards can only grant clemency requests, including commutations and full pardons, on the board’s recommendation. In deciding whether to recommend clemency, the board’s members review prisoners’ applications, convene hearings to discuss them and relay updates on the process to victims or their surviving family members, who are invited to participate in the hearings....

Edwards now has exercised his clemency powers more than any governor since Edwin Edwards, who in his first two terms as governor in the 1970s and 1980s commuted the sentences of well over 1,200 Louisiana prisoners.  In the mid-2000s, then-Gov. Kathleen Blanco commuted the sentences of 129 prisoners over four years.

Bobby Jindal was the most sparing in his use of his clemency powers in the modern era. He commuted prison sentences just three times over his two terms as governor.  John Bel Edwards, Jindal’s successor, opened the relief valve somewhat in his first term, granting 33 commutations over those four years.  He eclipsed that figure in 2020 alone, granting 36 commutations to start his second term.  Edwards then commuted sentences for 31 prisoners in 2021 and 60 prisoners in 2022, before doubling that tally in his final year.

December 31, 2023 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, December 30, 2023

Unsurprisingly, federal prosecutors content to focus on sentencing rather than a second trial for Sam Bankman-Fried

As reported in this CNBC piece, headlined "Prosecutors say they will not pursue second Sam Bankman-Fried trial," the feds have officially decided it will not seek a second criminal trial for high-profile fraudster Sam Bankman-Fried.  Here are excerpts from a lengthy piece that also previews the upcoming sentencing: 

Prosecutors have decided not to pursue a second trial against disgraced FTX founder Sam Bankman-Fried.  In a note to Judge Lewis Kaplan on Friday, the U.S. government explained that the decision to forego a second set of proceedings had to do with the fact that much of the evidence that would have been presented in a second trial had already been submitted to the Court during Bankman-Fried’s first criminal trial.

In November, following a month’s worth of testimony from nearly 20 witnesses, a jury found the former FTX chief executive guilty of all seven criminal counts against him following a few hours of deliberation.  Prosecutors added that the Court could consider the hundreds of exhibits already entered into evidence during these proceedings when he is sentenced next year.  “Given that practical reality, and the strong public interest in a prompt resolution of this matter, the Government intends to proceed to sentencing on the counts for which the defendant was convicted at trial,” continued the letter to Judge Kaplan.

Bankman-Fried, the 31-year old son of two Stanford legal scholars and graduate of the Massachusetts Institute of Technology, was convicted of wire fraud and conspiracy to commit wire fraud against FTX customers and against Alameda Research lenders, conspiracy to commit securities fraud and conspiracy to commit commodities fraud against FTX investors, and conspiracy to commit money laundering.  He had pleaded not guilty to the charges, which were all tied to the collapse of FTX and its sister hedge fund Alameda late last year.

The second trial, which had been slated to start in March, addressed an additional set of criminal counts, including conspiracy to bribe foreign officials, conspiracy to commit bank fraud, conspiracy to operate an unlicensed money transmitting business and substantive securities fraud and commodities fraud.

Damian Williams, the U.S. attorney for the Southern District of New York, wrote in the letter to the Court that “a second trial would not affect the United States Sentencing Guidelines range for the defendant, because the Court can already consider all of this conduct as relevant conduct when sentencing him for the counts that he was found guilty of at the initial trial.”

So now, the question of prison time goes to Judge Kaplan.  The sentencing date is March 28 at 9:30 a.m. ET. The FTX founder faces more than 100 years in prison....

In this case, the statutory maximum sentence is around 115 years, but there is a sliding scale for sentencing according to recommended guidelines given the scale of the crimes and the criminal history of the defendant. “I wouldn’t be surprised if SBF spends the next 20 or 25 years of his life in prison,” Renato Mariotti, a former prosecutor in the U.S. Justice Department’s Securities and Commodities Fraud Section, told CNBC.

“The sheer scale of his fraud was immense, he was defiant and lied on the witness stand, and Judge Kaplan had very little patience for his antics while out on bond. He will have more sympathy for the victims than he has for Bankman-Fried,” added Mariotti....  “The federal sentencing guidelines will likely be sky high, but they are just that — guidelines — and the judge is required to consider all of the circumstances surrounding SBF and his offense,” said Mariotti....

Former Assistant U.S. Attorney Kevin J. O’Brien, who specializes in white-collar criminal defense in NYC, thinks Bankman-Fried has the chance at a shorter sentence, telling CNBC, “Since judges have discretion even under the Guidelines, I believe his sentence will be in the 15 to 20 year range.” O’Brien added that given Bankman Fried’s age, he thinks the judge will be inclined to give him a chance to live a full life after his prison term.

Bankman-Fried’s case has been compared with that of Elizabeth Holmes, founder of medical device company Theranos, which ceased operations in 2018. Holmes, 39, was convicted in early 2022 on four counts of defrauding investors in Theranos after testifying in her own defense. She was sentenced to more than 11 years in prison, and began serving her punishment in May at a minimum-security facility in Bryan, Texas.

But former federal prosecutor Paul Tuchmann tells CNBC that he expects harsher terms for the former FTX CEO, because “the amount of losses that were suffered is simply staggering.” Tuchmann compared Bankman-Fried’s case to that of Bernie Madoff, who was sentenced to 150 years in prison. “Like Madoff, a lot of the losses in this case were small investors. They weren’t all large institutions, which really tends to create a greater pressure for a significant sentence,” said Tuchmann.

In this setting, it seems worth noting, yet again, how federal sentencing rules function to sometimes make jury trials and constitutional jury trial rights inconsequential.  Here, the US Attorney accurately notes that the federal sentencing guideline range will be calculated to produce the exact same recommended sentence with or without a trial and guilty verdict on additional charges. (Indeed, under current federal sentencing rules, even if SBF were acquitted on all counts in a second trial, the guideline calculation could be the same.)  Why bother with a second jury trial if the government can seek and secure punishment, under a lower standard of proof, at sentencing for the first convictions?

Prior related post:

December 30, 2023 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (27)

Friday, December 29, 2023

Could Prez Biden really push the BOP to advance thousands more motions for compassionate release?

The question in the title of this post is promped by this new New York Times essay authored by Michael Romano titled "How Biden Can Tackle Mass Incarceration."   I recommend the piece in full, and here are excerpts:

As a candidate, Joe Biden said he would substantially reduce the federal prison population as president. Last week he commuted the sentences of 11 people who he said were serving unjustifiably harsh prison terms for drug offenses and also pardoned people convicted of certain marijuana charges.  Still, the number of people in federal prison has grown during the Biden administration.

Despite historical bipartisan support for sentencing reform, Mr. Biden has failed to fully embrace the momentum of his two immediate predecessors, who made substantial efforts to tackle mass incarceration.  Some have argued that his relative inaction on the issue may hurt him among key voting groups.  But it is not too late....

Mr. Biden can chart his own course by taking advantage of a little-used law that allows prison officials to recommend to federal judges that they re-evaluate sentences of people for “extraordinary and compelling reasons.” This can include people who are facing long sentences and have already served many years behind bars, have shown their commitment to rehabilitation and are prepared for release.

This approach, which could be called administrative clemency, is fairer, more transparent, more comprehensive and less politically complicated than traditional clemency. It is in step with reforms percolating through state legislatures that empower law enforcement agencies and judges to revisit old, unnecessarily harsh prison sentences. It also encourages people in prison to work on themselves through education, vocational training, counseling and drug treatment.

Prison officials are ideally situated to make this evaluation. Prosecutors, judges, the police and even defense lawyers tend to move on to other cases and often do not keep tabs on people sent to prison who have been working to rehabilitate themselves and are hoping for some kind of reprieve. But prison officials and staff members work with them daily and follow and chart their progress. The administrative clemency process empowers prison officials to identify suitable candidates for resentencing based on their behavior and rehabilitation. Those cases would be sent back to court, where a judge would make the final determination on whether a person’s sentence should be reduced.

Unlike clemency, this decision is made in open court, with arguments and evidence by prosecutors and defense lawyers. It also allows courts to consider and impose release plans that maximize public safety. Final determinations are made by federal judges with lifetime tenure who are distant from the politics that influence presidential-level decisions. In short, this process returns the case to where it belongs: in court, with all the legal protections, evidence and consideration criminal cases deserve.

While some people may be justifiably wary of investing so much power in prison officials, a similar process is working in California, which is infamous for having some of the country’s harshest sentencing laws and most overcrowded prisons, as well as what may be the nation’s most powerful prison guard lobby.  Over the past six years, under a program begun by Jerry Brown when he was governor, California state prison officials have recommended 2,200 people for sentencing reductions.  Before any candidates are released, they undergo thorough vetting by prosecutors and defense lawyers, and a judge determines whether continued incarceration is no longer in the interest of justice. There is little litigation because after a person is identified and endorsed by prison officials, it becomes clear that the sentence is unnecessarily long and counterproductive....

Administrative clemency, if the Biden administration pursues it, will not correct fundamental flaws in the criminal legal system.  It will not directly address racism, mental illness and bad social science that can be corrected only through comprehensive reform.  But it is something Mr. Biden can do to address thousands of unfair federal sentences without embroiling himself in the politics of clemency or legislation.  And it’s something he can do today.

Regular readers likely know I am a big fan of so-called second-look/compassionate release sentencing mechanisms — which this essay interestingly calls "adminstrative clemency" and which ought to be formally called a "reduction of imprisonment" process in the federal sysetm since 18 USC § 3582(c)(1)(A) speak to when a judge may "reduce the term of imprisonment."  So I really like the general suggestion that Prez Biden and his Administration seek to "address thousands of unfair federal sentences" through this mechanism.  But there are lots of challenging practicalities that make this essay seem a bit like wishful thinking to me.

For starters, Prez Biden's Department of Justice has, in various ways, opposed broad expanstion of sentence reductions under § 3582(c)(1)(A).  Most notably, DOJ officials have testified before the US Sentencing Commission against the approrpiateness of reductions based on changes in the law.  And, even after the USSC decided to authorize sentences reductions based on changes in the law in narrow circumstances, Biden's DOJ is aguing against the lawfulness of the USSC's new guideline terms.  In other words, with lawyers in Prez Biden's Department of Justice being generally oppositional to many sentence reductions, I would not expect them to be supportive of any efforts by the federal Bureau of Prisons to advance more of these motions.

More broadly, the recent activity surrounding sentence reductions under § 3582(c)(1)(A) over the last five years is the result of the FIRST STEP Act allowing prisoners to bring these motions directly to court without needing a filing by federal prison officials.  Congress was moved to allow prisoners to make these filings directly because BOP has long had a notorious record of almost never supporting a sentence reduction even for gravely ill inmates.  As many note, it seems the culture and practice of decision-mkaing by prison officials makes it much more likely that they will oppose requests for sentence reductions than support or advance them.  Perhaps a directive from Prez Biden could somewhat influence BOP culture and practice in this regard, but that seems like an evolution likely to take a long time to materialize.

Finally, though I do not know much about the California experience, sentencing reductions averaging around 370 persons per year in that jurisdiction actually amounts to less than what the federal system is already achieving on a steady basis based largely on prisoner motions.  The US Sentencing Commission's last compassionate release data report indicates that nearly 500 persons in federal prison secured prison-term reductions from July 2022 through June 2023.  (That data report also shows that nearly 5000 federal prisonsers received sentence reductions in less than four years from October 2019 through June 2023, though these numbers are driven by a COVID-era period that saw over 3000 reductions in about 15 months in 2020 and 2021.)  In other words, even without much help from DOJ and BOP, federal prisoners are already seeking, and federal judges are sometimes granting, sentence reductions on a steady basis.

That all said, it would still be great to see both DOJ and BOP become a lot more supportive of federal prisoner motions for sentence reductions.  The USSC data show that for every sentence reduction granted, there are four more that are denied.  Many of those denials, I suspect, are influenced by DOJ and BOP beig oppositional to the reduction.  If there were a way that Prez Biden could direct DOJ and BOP to be less oppositional to sentence reduction efforts, perhaps we would start to see the kind of culture change needed to really create a dynamic and effective corrective to "address thousands of unfair federal sentences."

December 29, 2023 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Thursday, December 28, 2023

Another accounting of the Biden DOJ's capital approach as it approaches a capital decision

The Washington Post has this lengthy new article on the capital punishment work of the Biden Administration's Justice Department.  the full headline highlights the themes: "Garland’s death-penalty record will soon include Buffalo killer decision; President Biden’s attorney general has stopped dozens of death-penalty cases he inherited, but continued two involving mass, hate-fueled killings."  Here are a few excerpts:

The Justice Department is nearing a decision over whether to pursue the death penalty for the White gunman who slaughtered 10 Black people at a Buffalo grocery store last year, a racist attack that could lead to the first new capital prosecution authorized by Attorney General Merrick Garland....

Payton Gendron, 20, faces charges on hate crimes and weapons violations for the May 2022 massacre. He already is serving a sentence of life in prison without parole after pleading guilty to New York state murder charges. Defense attorneys said he would plead guilty to the federal counts if prosecutors forego the death penalty.

Garland’s decision is freighted with political significance over whether he believes capital punishment is a just outcome for perpetrators of the nation’s deadliest mass killings. The attorney general has echoed concerns about the death penalty from civil rights groups and Democrats, including President Biden, who say it disproportionately targets minorities and the poor. But nearly three years into his tenure, Garland has sent conflicting signals about his stance.

Prosecutors this year took two death penalty cases Garland inherited to trial, while the attorney general has withdrawn the department’s intent to seek capital punishment in 32 others that also were filed before he took office. In 2021, he issued a moratorium on actually carrying out federal executions, which remains in place. But the Justice Department continues to aggressively fight appeals from the 40 inmates who are on federal death row.

Outside observers say Garland’s decision in the Gendron case could further clarify whether the Biden administration is closing in on defining a new “worst of the worst” standard, in which the death penalty is reserved for mass killers in an age of increasing acts of domestic terrorism. The two cases that went to trial this year, like the Buffalo case, both involved such crimes.

December 28, 2023 in Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Justice Department releases fact sheet detailing "Improvements to the Clemency Process"

Via email this afternoon, I got word of this new press release from the Department of Justice titled "Fact Sheet: Justice Department Improvements to the Clemency Process." Here is the full text (with links from the original):

The Justice Department is entrusted with the important responsibility of receiving and reviewing applications for executive clemency and making recommendations to the President in support of his exercise of the constitutional clemency power. In fulfilling this responsibility, the department is committed to improving the clemency application process to make it more transparent, accessible and user-friendly. The department is taking a series of actions to reform and streamline the clemency application process. 

Transparency & Accessibility

  • Form Simplification: The Justice Department is updating all of its clemency forms, including web forms, to make them more user-friendly, streamlined and accessible to diverse populations. The improved and simplified application for commutation of sentence is now available here. The revised pardon application form is currently open for public comment.
  • Language Access: The Justice Department has translated its revised application forms and informational materials into Spanish and is in the process of making its forms available in other languages as well.
  • Partnering with Federal Bureau of Prisons (FBOP): The Office of the Pardon Attorney is working closely with the FBOP to assist incarcerated individuals with the clemency process, including by launching a series of educational seminars for staff and individuals in custody.  In 2023, the Office met with over 1,800 people in FBOP facilities to provide information about applying for clemency.  Additional sessions are scheduled in 2024.

Efficiency

  • Reducing Processing TimesThe Justice Department is taking steps, including providing additional staffing and technical support for the Office of the Pardon Attorney, to reduce the processing times to ensure that clemency petitioners receive answers in a timely fashion.
  • Closing Long-Pending Petitions: The current Administration inherited an unprecedented backlog of clemency petitions.  Soon, the Justice Department will begin issuing letters to petitioners that have not been granted clemency in order to deliver closure to those waiting for answers they deserve.  Those receiving letters are welcome to submit new petitions.

Public Engagement

  • Education and Outreach: The department is working to educate the public about how to submit a clemency application in order to demystify the process and help ensure broader and more equitable access.
  • Listening Sessions: The department continues to engage with diverse external stakeholders to ensure that it is responsive to the needs of clemency petitioners and the public.

December 28, 2023 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Tuesday, December 26, 2023

"Victims of Coercive Plea Bargaining"

The title of this post is the title of this new article authored by Lucian Dervan, Vanessa Edkins and Thea Johnson.  Here is its abstract:

The last decade has seen a significant growth in academic research and literature related to coercive plea bargaining. One thread that emerges from this research is how coercive plea practices encourage innocent defendants to falsely condemn themselves, and sometimes even other innocent people to get the benefit of a “good” deal.  This Article compiles and synthesizes this research to highlight how and why typical plea bargaining can lead to false guilty pleas.  It also frames those who falsely plead guilty in the face of coercive bargains and those who are subject to false testimony as a result as victims of plea bargaining.  In this way, we expand our conceptions of who should be viewed as a victim in our current system of pleas more broadly.

The growing realization that coercive plea bargaining leads to many different types of victims reinforces the pressing need for plea bargaining reform that addresses coercive bargaining and false guilty pleas.  To that end, this Article highlights suggestions for reform from a recent report of the ABA Plea Bargain Task Force that address mechanisms for reducing the risks of coercive bargains.

December 26, 2023 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (38)

A notable 2023 year in review in two major death penalty states

Florida and Texas have notable histories, both past and moden, in the application of the death penalty.  The year 2023 added to those histories in various ways, as these two recent year-in-review press pieces detail:

From Florida, "Florida’s death penalty faced major change in 2023, caused national impact: After years without executions, Florida carried out six this year — along with laws expanding the state’s death penalty."  An excerpt:

Florida is one of five states that regularly uses the death penalty — and in 2023 the state stood out for its efforts to increase and expand the use of capital punishment. The state’s moves to resume executions after three years, to lower the bar for juries to recommend death sentences and to expand the crimes eligible for death put Florida at the forefront of the issue nationally....

In the spring, lawmakers and Gov. Ron DeSantis changed state law so juries don’t have to be unanimous to recommend the death penalty. The new minimum is a vote of 8-4 for death. Lawmakers also passed a bill making child sex abuse offenses eligible for the death penalty, a change that contradicts U.S. and Florida Supreme Court precedent. Prosecutors in Florida’s 5th Judicial Circuit this month filed the first such charges, and DeSantis has said they have his “full support.”

From Texas, "Texas executions remained low as 8 prison inmates put to death, 2 from Houston area, in 2023."  An excerpt:

Texas' death row population is at its lowest level in decades and fewer defendants condemned to die by Harris County juries are being executed or sent to death row. 

The Texas Coalition to Abolish the Death Penalty said in its annual report that 2023 marked the smallest death row population in more than 38 years, with a third of those coming from Harris County convictions.  As of December, 67 inmates from Harris County remain on death row, according to Texas Department of Criminal Justice records.

The state put to deaths eight people this year — two of whom were from the Houston area. The number of executions was higher than during the pandemic, but lower than the years prior, according to state records.

December 26, 2023 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Friday, December 22, 2023

Prez Joe Biden commutes prison terms of 11 non-violent drug offenders and extends pardons to more marijuana possession offenses

As set forth in the official "Statement from President Joe Biden on Clemency Actions," Prez Biden has decided to use his clemency pen a little this holiday season.  Here is how the statement starts:

America was founded on the principle of equal justice under law.  Elected officials on both sides of the aisle, faith leaders, civil rights advocates, and law enforcement leaders agree that our criminal justice system can and should reflect this core value that makes our communities safer and stronger.  That is why today I am announcing additional steps I am taking to make the promise of equal justice a reality.
 
First, I am commuting the sentences of 11 people who are serving disproportionately long sentences for non-violent drug offenses.  All of them would have been eligible to receive significantly lower sentences if they were charged with the same offense today.
 
Second, following my pardon of prior federal and D.C. offenses of simple possession of marijuana, I am issuing a Proclamation that will pardon additional offenses of simple possession and use of marijuana under federal and D.C. law. 

Upon first read, I believe there are additional marijuana possession offenses (eg, attempt charges and regulatory offenses) that are covered in today's marijuana pardon Proclamation beyond those federal marijuana possession offenses that were pardoned by Prez Biden's blanket pardons back in Oct 2022.  In addition, anyone who committed a federal marijuana possession offense after Oct 2022 until today is also covered by the new proclamation (which is, technically, many millions of Americans even though very few get actually arrested and prosecuted for violatons of federal law's blanket prohibition on marijuana possession). 

I am inclined to guess that folks at the Justice Department's Office of the Pardon Attorney came to realize that Prez Biden's Oct 2022 pardon grants had some gaps that could and should be filled by an even broader proclamation.  Notably, though, this new Proclamation still provide this express limit on its reach: "This pardon does not apply to individuals who were non-citizens not lawfully present in the United States at the time of their offense."

As for the commutation, the list of 11 individuals granted commutations today makes for an interesting read.  Most of the recipients are from the south and were serving 20 years or longer for crack offenses.  Two clemency recipients were convicted of meth offenses.   But none of the receipients will be home for the holidays, as three have their prison sentence "commuted to expire on February 20, 2024," and six have their sentence "commuted to expire on April 20, 2024."  (Why 4/20 was selected as the main sentence expiration date is beyond me, though I expect the "weed numerati" will find some meaning in that decision.)

Finally, I find it especially notable and interesting that four of the clemency recipients had been sentenced to LWOP terms and that two of these folks seemingly will still have many more years to serve in prison.  Earlie Deacon Barber and Darryl Allen Winkfield both were serving life terms, but will now have their federal prison terms expire on April 20, 2024.  But Deondre Cordell Higgins's life sentence was "commuted to a term of 25 years," and Leroy Lymons' life sentence was "commuted to a term of 27 years."  Because both of these persons were sentenced in the early 2010s, it seems unlikley they will be scheduled for relase from federal prison until the 2030s.  But, of course, for them that still surely beats never being scheduled for release from prison at all.

December 22, 2023 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (18)

Thursday, December 21, 2023

US Sentencing Commission provides (not quite complete) "Year in Review"

The US Sentencing Commission sent me email today titled "A Look Ahead + Year in Review."  One email cannot, of course, cover all that the Commission has been doing in an eventful 2023, but I was struck more by what was barely mentioned than by what was included in the USSC's five-point "Year in Review."  Here is what's listed in the email I received:

1. Long-awaited First Step Act implementation and Compassionate Release policy statement update

Equipped with a quorum of Commissioners for the first time since 2018, the bipartisan United States Sentencing Commission voted in April to promulgate amendments to the federal sentencing guidelines, and, in August, authorized delayed retroactive application of parts of one amendment (Amendment 821 relating to criminal history).

2. Launched a new public comment portal

The Commission launched a new Public Comment Portal in January where the public can participate in the amendment process and submit comment online during formal public comment periods.

3. First public hearing witness panel solely comprised of formerly incarcerated individuals 

At its February public hearing on the proposed Compassionate Release amendments, the Commission convened a panel of formerly incarcerated individuals.

4. Updated analysis of oft-cited 2017 Demographic Differences report

In November, the Commission updated its research on demographic differences in federal sentencing finding that — after controlling for available personal and offense characteristics — sentencing differences across demographic groups persisted during the five years following the release of its 2017 Demographic Differences in Sentencing Report.

5. Commission proposed 2024 amendments relating to acquitted conduct and simplification of the current "three-step process"

The Commission proposed a number of possible amendments in November relating to consideration of acquitted conduct under the new Guidelines, expanded consideration of an individual’s youthful age at sentencing, and a proposal that would simplify the current "three-step process" followed by judges at sentencing by effectively removing step two — consideration of departures under the Guidelines Manual.

Though all five of these USSC's developments are certainly noteworthy, I view the most consequential and significant action by the USSC as its intricate amendments to the guidelines' criminal history rules and its decision to make those amendments retroactive. (This action is briefly referenced in item #1, but merits much more attention in my view.)  The USSC's data suggests that perhaps as many as half of all federal defendants sentenced in the future may have their guideline range impacted by these amendments and also that perhaps tens of thousands of current federal prisoners migth be able to get their sentenced reduced as a result of making these amendments retroactive.

I also find it interesting the Commission has flagged here its recent proposal to effectively remove "consideration of departures."  I hope I will get a chance in the coming days to explain why I am not a fan of this proposal, though the closing mention of this proposal has me now wondering if the USSC may already have its mind made up on this front.

December 21, 2023 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Some notable (red) state clemency headlines and stories

In part because I had a small role in the stories behind recent pardon activity here in Ohio, I am quite pleased that I can here flag some great clemency news from the Buckeye State along with a couple of other new clemency stories emerging from other (red) states.  (And though I am always happy and eager to round-up these state clemency stories, I still find it frustrating that there is not a concerted effort by every chief executive in every state to make the holiday season happier by making greater use of the clemency power.) 

From North Carolina, "Roy Cooper issues four pardons, commutes one man's prison sentence"

From Ohio, "Ohio governor's expedited pardon project surpasses 100 pardons for reformed citizens"

From Tennesse, "Tennessee Gov. Bill Lee issues 22 pardons, commutation to woman convicted at 21"

December 21, 2023 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, December 20, 2023

The Sentencing Project releases review of "Top Trends in Criminal Justice Reform, 2023"

The folks at The Sentencing Project todat released this new report that reviews a number of state criminal justice reform developments in this past year. I recommend the short report in full for all the reviewed details, and here is its opening "overview":

The United States is the world leader in incarceration.  This year marked 50 years of the mass incarceration crisis, with the prison population having grown nearly 500% since 1973.  Today, nearly two million people – disproportionately Black – are incarcerated in prisons and jails.

However, stakeholders, including formerly incarcerated activists and lawmakers, have worked to scale back mass incarceration.  Advocacy organizers and officials in at least 10 states advanced reforms in 2023 that may contribute to decarceration and address the collateral impact of mass incarceration, while also supporting community-based public safety solutions.

This brief highlights 2023 policy reforms in decarceration, collateral consequences and youth justice.

December 20, 2023 in Recommended reading, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Tuesday, December 19, 2023

"The Prosecutor Vacancy Crisis"

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

There is a prosecutor vacancy crisis in the United States.  Prosecutors are quitting in droves and there are few applicants to replace them.  In Houston and Los Angeles, more than 15% of prosecutor positions are open. In Detroit, the vacancy rate exceeds 20%.  In Alameda, 25% of prosecutor positions are empty.  And in Miami, a staggering 33% of prosecutor positions are unfilled.  The situation is equally dire in many large and small counties across the nation.

Drawing on data and interviews from more than two-dozen district attorney’s offices, this article documents how low salaries, massive caseloads, the lack of remote work options, and crushing discovery burdens have caused an exodus from prosecutors’ offices.  Worse yet, many young lawyers no longer perceive prosecutor jobs as admirable public service.  Following the murder of George Floyd, law students are more likely to believe that public defenders, rather than prosecutors, are on the side of justice.

Prosecutor vacancies are dangerous to public safety and, counter-intuitively, to criminal defendants as well. Vacancies lead to junior prosecutors having massive caseloads that they cannot handle.  In turn, busy prosecutors fail to dismiss weak cases, leaving innocent defendants to languish in jail.  Vacancies also result in junior prosecutors being promoted to senior positions before they are ready. And vacancies cause Brady violations because busy offices fail to provide adequate training, and individual prosecutors lack the time review their casefiles and recognize Brady material.

December 19, 2023 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (6)

Monday, December 18, 2023

Possible Florida test case for new capital child rape statute now in the works

Almost eight months ago, I asked in this post: "With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy?"  In that post, I wondered aloud "about the facts of any 'Kennedy test case', [and] how long it might take to get to SCOTUS."  As reported in this recent press peice, we now have a a possible test case getting started: 

In a first for the state of Florida, prosecutors in the Sunshine State will be pursuing capital punishment against a man accused of raping a child where no death occurred under a new law that runs counter to the U.S. Supreme Court’s current Eight and Fourteenth Amendment precedent.

The Fifth Judicial Circuit State Attorney Office on Thursday filed court documents stating its intent to seek the death penalty against 36-year-old Joseph Andrew Giampa, who was indicted by a grand jury on six counts of sexual battery on a child under age 12 and three counts of promoting a sexual performance of a child. According to a news release from the state attorney’s office, prosecutors want to put Giampa to death due to “the severity of the crime and its impact on the community.”

The notice filed in Lake County Circuit Court lists numerous aggravating factors, which prosecutors say implore the state to seek the death penalty. Such factors include that the crime was committed for “pecuniary gain,” it was “especially heinous,” the victim was “particularly vulnerable,” and Giampa had previously been convicted of a violent felony....

According to a probable cause affidavit obtained by Law&Crime, authorities responded on Nov. 2 to Giampa’s home about a possible sexual battery. Once there, deputies detained Giampa. In his camper, deputies said there was a computer with a video showing an adult sexually assaulting a child under 12. After the sexual assault, the assailant who was recording the attack “set the camera down” and then “walked in front of the camera.” Authorities said the adult male in the recording was Giampa. Giampa then sexually assaulted the juvenile several more times as the video continued before exiting the room as “the juvenile victim begins cleaning up in view of the camera.”

The case is certain to pose constitutional challenges as the legislation adopted and signed by Gov. Ron DeSantis earlier this year is patently contra to the Supreme Court’s 2008 case Kennedy v. Louisiana, which prohibits the death penalty as punishment “where no life was taken in the commission of the crime.”...

Of the four justices who dissented — Samuel Alito, John Roberts, Antonin Scalia, and Clarence Thomas — three are still on the court, while all five of those who voted in the majority have been replaced, predominantly by justices whose overall judicial ideology is far more right-leaning.

The legislation’s text explicitly states that the high court’s earlier rulings on death penalty prohibitions were “wrongly decided and that such cases are an egregious infringement of the states’ power to punish the most heinous of crimes.”

DeSantis already released a statement indicating his intent to take the case up with the justices. “Today, the State’s Attorney for the Fifth Judicial Circuit announced that they will seek the death penalty in a case of sexual battery against a child under age 12,” he wrote in a Facebook post. “It will be the first case to challenge SCOTUS (U.S. Supreme Court) since I signed legislation to make pedophiles eligible for the death penalty. The State’s Attorney has my full support.”

Because I do not know the intricacies of Florida criminal procedure, I do not know if there are (appealable) means for the defendant here to seek some kind of dismissal/striking of the capital aspect of these charges.  I noted in my prior post that the Florida death penalty law, House Bill 1297, states expressly that "a sentence of death shall be imposed under this section notwithstanding existing case law which holds such a sentence is unconstitutional under the Florida Constitution and the United States Constitution."   But is it really proper for a state judge to entertain and allow criminal charges to move forward contrary to on-point state and federal constitutional law?  (Imagine if New York passed a statute, hoping SCOTUS might change its approach to the Second Amendment since Bruen is proving problematic, that ordered state courts to enforce a problematic gun law "notwithstanding existing case law.")

Whatever the possible procedures at an early stage of Florida's capital litigation, I wonder if the defendant here may be eager to seek to plea given what sounds like damning evidence of guilty.  Indisputably guilty murderers who face capital charges often offer to plead guilty to avoid a possible death sentence, but a prosecutor must be willing to make such a plea deal.  It will be interesting to see if this local Florida prosecutor will want to persistently pursue this capital charge which is certain to come with years and years of litigation.

Prior related post:

December 18, 2023 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (13)

Thursday, December 14, 2023

Some early celebrations of the FIRST STEP Act at five

In May 2018, the US House of Representatives under the leadership of House Speaker Paul Ryan (remember him?) voted by a margin of 360-59 to pass the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act or the FIRST STEP Act.   After much debate over the reach of the bill, in mid December 2018, the US Senate under the leadership of Senate Majority Leader Mitch McConnell (remember him?) voted by a margin of 87-12 to pass a somewhat bigger and broader version of the First Step Act.  After the House blessed the new version by a vote of 358-36, the final First Step Act went to the desk of President Donald Trump for signature on December 21, 2018.

I bring up this history because, arguably, the fifth anniversary of the First Step Act might be celebrated at many times.  But, techinically, we are still a week away from the official signing day for this consequental law.  But I have seen various reports of various forms of celebration and commentary as we approach the First Step at five, and I figured I could usefully do a quick round up here:

From the US Senate Judiciart Committe, "Durbin, Booker Celebrate Fifth Anniversary of the First Step Act on Senate Floor"

From Kevin Ring writing in The Hill, "The First Step Act wasn’t a mistake — but criminal justice reformers dropped the ball"

From Puck, "A Night for First Steps"

From Reason, "Colleen Eren: Why Donald Trump Signed the FIRST STEP Act"

December 14, 2023 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

US Sentencing Commission publishes for comment 755 pages(!) of "Proposed Amendments to the Sentencing Guidelines (Preliminary)"

USSC-Seal_vFFAs summarized in this press release, this afternoon "the U.S. Sentencing Commission voted to seek comment on several proposals that would, among other things, limit the federal courts’ consideration of acquitted conduct and youthful convictions under the federal sentencing guidelines."  Here is more from the press release:

The bipartisan Commission voted today to publish for public comment several options to address the use of acquitted conduct for sentencing purposes. The proposed amendment comes after the Commission took up the issue during last year’s abbreviated amendment cycle but determined that more time and public comment was needed before promulgating amendments.  The U.S. Supreme Court recently denied several petitions for writs of certiorari related to the use of acquitted conduct.  In issuing the denials, four Justices indicated their support for the denial, in part, to give the Commission time to address the issue.

U.S. District Judge Carlton W. Reeves, Chair of the Commission, said, “When the Supreme Court tells us to address an issue, the Commission listens.  From continuing the use of acquitted conduct to restricting (or even eliminating) its use in sentencing, all options are on the table.  We need the input of stakeholders — from seasoned federal judges to the individuals who have been directly impacted by sentencing and incarceration — to settle on the best course of action.” (Access the Comment Portal.)

Prompted by evolving brain development research, the Commission also proposed changes that would limit the impact of prior juvenile convictions on criminal history scoring and expand consideration of an individual’s youthful age at sentencing.  Judge Reeves said, “Congress directed the Commission to draft fair and equitable guidelines that reflect advancements in knowledge of human behavior as it relates to the criminal justice process.  We look forward to the public’s input on how to ensure that federal sentencing reflects all of the relevant data and research around age, crime, and justice.”

The Commission also proposed an amendment that would simplify the current “three-step process” followed by judges at sentencing by effectively removing step two — consideration of departures under the Guidelines Manual.  The proposal would also more closely align Commission guidance regarding consideration of individual characteristics with the factors set forth by Congress in section 3553(a).

“The Commission has reported on the impact of the Booker decision on multiple occasions.  Today’s proposed amendment acts on these observations and, after nearly 20 years, would update the Guidelines Manual to more fully reflect the advisory sentencing guidelines system established by the Supreme Court in Booker,” said Judge Reeves.

As part of this year’s policy work, the Commission has also worked to compile and disseminate information on court-sponsored programs relating to diversion, alternatives-to-incarceration, and reentry.  While the Commission did not propose amendments on this priority, the Commission published program documentation and background information on its website.  The Commission has also released its first podcast episode in a miniseries highlighting the various problem-solving courts around the country. It is the Commission’s intent to continue to develop and update these resources throughout the amendment year.

Several other technical or clarifying amendments were proposed today, including amendments addressing the guidelines commentary, new laws, and several circuit conflicts.

Today’s proposals are all drawn from the final policy priorities the Commission unanimously approved in August 2023.  The proposed amendments and issues for comment will be subject to a public comment period running through February 22, 2024. A public hearing on the proposed amendments will be scheduled in Washington, D.C., at a later date.

The Commission will soon post information about public hearings as well as a data presentation on today’s Proposed Youthful Individuals Amendment.  Official text of proposed amendments and issues for comment will also be published in a forthcoming edition of the Federal Register.

December 14, 2023 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, December 13, 2023

"Democratizing the Eighth Amendment"

The title of this post is the title of this new article recently posted to SSRN and authored by Erin Braatz. Here is its abstract:

The concept of evolving standards of decency has long been an important component of the Supreme Court’s interpretation of the Eighth Amendment’s prohibition on cruel and unusual punishment.  Yet the Court’s recent decisions problematically conceive of standards of decency as something static and capable of precise measurement.  This Article proposes a theoretically robust and empirically grounded account of evolving standards of decency, drawing on scholarship in the fields of history, sociology, and anthropology. This literature reveals that rather than constituting a static state, standards of decency develop through a process dependent upon interpersonal interactions.  While the Supreme Court’s earliest invocations of the concept of evolving standards of decency relied upon arguments similar to those found in this literature, the Court has lost sight of the concept’s dynamic nature.

Applying this account of standards of decency to the history of penal reform in the United States, this Article contends that the extreme privatization and isolation of penal practices beginning in the mid-twentieth century prevents the public from evaluating whether prison practices in the United States violate the Eighth Amendment’s prohibition on cruel and unusual punishment.  It also stymies the process through which standards of decency might evolve.  The development of penal practices outside of the public eye thereby contributes to the Supreme Court’s struggle to apply the concept of evolving standards of decency to imprisonment cases.  In contrast, recent reform movements, such as prison abolitionism, community control, and democratic criminal justice all rely implicitly on some version of a process-oriented notion of standards of decency.  In varying ways, they reflect a belief that building and facilitating robust interpersonal relationships will lead to a radical reimagining of how individuals can and should be treated in response to harms they may have caused.  Rather than rely on the Supreme Court to ensure that punishments in the twenty-first century are not cruel and unusual, this Article concludes that we must democratize the Eighth Amendment by adopting public policy choices that enable public engagement with penal spaces and the development of the interpersonal relationships through which standards of decency can be engaged.

December 13, 2023 in Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Four criminal cases of note in latest SCOTUS cert grants

The Supreme Court put out what I assume will be their last order list with cert grants for 2023, and this list had lots of notable cases from criminal justice fans.  The case sure to get the most attention is not a (quite) criminal case, with the Justices taking up a Fifth Circuit ruling that partially restricted access to mifepristone, the drug widely used in medication abortions.  But, as this SCOTUSblog post details, one of the crimnal case grants is sure to get a lot of attention and grants in three two other cases are also of note in a term shaping up to be heavy with criminal case:

Two days after Special Counsel Jack Smith asked the justices to decide quickly whether former President Donald Trump can face criminal charges for conspiring to overturn the results of the 2020 elections, the Supreme Court agreed to hear a case that could affect the charges against Trump even if the court ultimately rules that he is not immune from prosecution.  The justices on Wednesday agreed to weigh in on the use of a federal law — also at issue in Trump’s case — that makes it a crime to “corruptly” obstruct congressional inquiries and investigations to prosecute participants in the Jan. 6 attacks on the U.S. Capitol.

The announcement that the justices would hear argument in Fischer v. United States... The defendant in the case, Joseph Fischer, says he was only briefly inside the Capitol on Jan. 6 but was charged with (among other things) assaulting a police officer, disorderly conduct in the Capitol, and obstruction of a congressional proceeding.

Fischer sought to have the charge at the center of his Supreme Court case dismissed, and U.S. District Judge Carl Nichols agreed.  He reasoned that the law, which was enacted in the wake of the Enron collapse, was only intended to apply to evidence tampering that obstructs an official proceeding.

The U.S. Court of Appeals for the District of Columbia Circuit reversed and reinstated the charges against Fischer (as well as those against two other men).  It ruled that “[u]nder the most natural reading of the statute,” the law “applies to all forms of corrupt obstruction of an official proceeding, other than the conduct that is already covered by” the evidence-tampering provision.  In a dissenting opinion, Judge Gregory Katsas countered that the government’s interpretation of the law would render it “both improbably broad and unconstitutional in many of its applications.”

Fischer came to the Supreme Court in September, asking the justices to hear his appeal, which they agreed to do on Wednesday.

The justices also agreed to review a ruling by the U.S. Court of Appeals for the 9th Circuit in favor of Danny Lee Jones, who was sentenced to death for the murders of Robert Weaver and Weaver’s seven-year-old daughter, Tisha.  A federal district court in Arizona rejected Jones’s claims that his lawyer had provided inadequate assistance, but a federal appeals court in California reversed that decision. Over two dissents joined by 10 judges in total, the full court declined to rehear the case.

The state came to the Supreme Court in the spring, asking the justices to summarily — that is, without additional briefing or oral argument — reverse the 9th Circuit’s ruling. It argued that the lower court had misapplied the Supreme Court’s 1984 decision in Strickland v. Washington, which sets out the test to determine whether a lawyer’s performance was so inadequate that it violated the Constitution.  After considering the case at every conference since late September (and requesting the record from the lower court, which often suggests either that the court is drafting a summary reversal or that one or more justices is writing a dissent or a statement regarding the court’s decision not to hear the case), the justices finally announced on Wednesday that they would hold briefing and oral argument on the merits in the case.

Wednesday’s other grants included:

  • Chiaverini v. City of Napoleon – Whether a claim for malicious prosecution can proceed for a baseless criminal charge, even if there was probable cause for prosecutors to bring other criminal charges

  • Snyder v. United States – Whether federal bribery laws make it a crime to accept “gratuities” — that is, payment for something a government official has already done, without any prior agreement to take those actions in exchange for payment

December 13, 2023 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)

Friday, December 08, 2023

Reviewing the uncertain state of the death penalty in the Buckeye State

Writing in the Columbus Monthly, Andrew Welsh-Huggins has this terrific overview of the curious state of capital punisnment in Ohio. The full headline highlights the lengthy piece's themes: "Justice For None: What the Future Holds for Ohio’s Death Penalty: After a 5-year unofficial moratorium, the future of capital punishment in the state is unclear, frustrating both supporters and opponents." Here are excerpts from a piece worth reading in full:

The reasons behind the current de facto moratorium are multifaceted but begin with this: Republican Gov. Mike DeWine has said repeatedly that Ohio can’t obtain the three drugs used in its current execution protocol — midazolam, a sedative; pancuronium bromide or a related drug, a paralyzing agent; and potassium chloride, which stops the heart. Even if the state could locate those drugs, DeWine argues, his administration doesn’t want to risk pharmaceutical companies shutting off access to other drugs needed in state institutions, from state-funded medical facilities to psychiatric hospitals to prisons dispensing regular medication to inmates.

Since taking office in January 2019, DeWine has issued more than 40 reprieves affecting 27 death row inmates, including three reprieves as recently as mid-October.... DeWine’s position is of small comfort to death row inmates and their attorneys, since several states — including Missouri, Oklahoma and Texas — continue to carry out executions with lethal drugs with no apparent backlash from pharmaceutical companies. Asked about this discrepancy, DeWine press secretary Dan Tierney stuck to the party line: The concern remains that any drug, obtained directly or through third-party means, could jeopardize the state of Ohio’s access to pharmaceuticals.

As far as capital punishment itself, Tierney says the governor’s position hasn’t changed since December 2020, when at the end of his second year in office he told the Associated Press that while he still supports the death penalty as Ohio law, he has come to question its value since his days as a state senator when he helped write the state’s current law—enacted in 1981—because of the long delays between crime and punishment....

Bipartisan bills to abolish the death penalty have come and gone repeatedly in recent Ohio legislative sessions, with most never advancing beyond a single hearing.  But this fall, two bills have been introduced both in the House and the Senate, and the bills’ supporters think they have more momentum than in the past.  They note a significant selling point: These versions aren’t retroactive — should the legislation be approved and become law, the death penalty would still be in place for inmates currently sentenced to death....

Ohio’s unofficial moratorium also reflects a broader trend: On the books or not, death sentences are rarer and rarer.  Nationally, the number of executions carried out dropped by 82 percent between 1999 and 2022, according to the Washington, D.C.- based Death Penalty Information Center, while death sentences declined 92 percent during the same time period. Ohio had no death sentences last year or in 2021, and just one in 2020.  Meanwhile, DeWine signed a bill into law in early 2021 that prohibits the execution of individuals suffering from such serious mental illnesses as schizophrenia, schizoaffective disorder, bipolar disorder or delusional disorders at the time of their crimes. That law alone has removed four inmates from death row....

But adhering to the status quo isn’t good enough for Ohio’s top cop, Attorney General Dave Yost, who in his office’s most recent annual report on capital punishment, said the state was laboring under a “broken capital-punishment system.”  Yost, a Republican and a possible candidate for governor in 2026, used financial estimates of the death penalty from other states to conclude that the extra cost of imposing the death penalty on the 128 inmates on Death Row as of the end of 2022 might range between $128 million to $384 million.  “That’s a stunning amount of money to spend on a program that doesn’t achieve its purpose,” Yost wrote.

He added, “This system satisfies nobody.  Those who oppose the death penalty want it abolished altogether, not ticking away like a time bomb that might or might not explode. Those who support the death penalty want it to be fair, timely and effective.  Neither side is getting what it wants while the state goes on pointlessly burning through enormous taxpayer resources.”

December 8, 2023 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Thursday, December 07, 2023

Hunter Biden indicted on nine new federal tax charges

As reported in this AP piece, "Hunter Biden was indicted on nine tax charges in California on Thursday as a special counsel investigation into the business dealings of the president’s son intensifies against the backdrop of the looming 2024 election." Here's more:

The new charges — three felonies and six misdemeanors — come in addition to federal firearms charges in Delaware alleging Hunter Biden broke a law against drug users having guns in 2018.

Hunter Biden “spent millions of dollars on an extravagant lifestyle rather than paying his tax bills,” special counsel David Weiss said in a statement. The charges are focused on at least $1.4 million in taxes he owed during between 2016 and 2019, a period where he has acknowledged struggling with addiction.

If convicted, Hunter Biden could face up to 17 years in prison. The special counsel probe remains open, Weiss said. Hunter Biden had been previously expected to plead guilty to misdemeanor tax charges as part of a plea deal with prosecutors. Defense attorneys have signaled they plan to fight any new charges, though they did not immediately return messages seeking comment Thursday....

The criminal investigation led by Delaware U.S. Attorney David Weiss has been open since 2018, and was expected to wind down with the plea deal that Hunter Biden had planned to strike with prosecutors over the summer. He would have pleaded guilty to two misdemeanor tax evasion charges and would have entered a separate agreement on the gun charge. He would have served two years of probation rather than get jail time.

The agreement also contained immunity provisions, and defense attorneys have argued that they remain in force since that part of the agreement was signed by a prosecutor before the deal was scrapped. Prosecutors disagree, pointing out the documents weren’t signed by a judge and are invalid.

After the deal fell apart, prosecutors filed three federal gun charges alleging that Hunter Biden had lied about his drug use to buy a gun that he kept for 11 days in 2018. Federal law bans gun possession by “habitual drug users,” though the measure is seldom seen as a stand-alone charge and has been called into question by a federal appeals court.

Prior related posts:

December 7, 2023 in Celebrity sentencings, White-collar sentencing, Who Sentences | Permalink | Comments (15)

In a different context, some more notable circuit caterwauling over the categorical approach to criminal history

In this post a few days ago, I flagged the notable opinion from a Third Circuit judge in US v. Harris, No. 17-1861 (3d Cir. Nov. 27, 2023) (available here), lamenting the ugly story of the Armed Career Criminal Act's reliance on the "categorical approach" to assess criminal priors required by Supreme Court precedent.   Today, I see a Second Circuit jurist authoring a distinct chapter of this ugly story in a different sentencing context.  Concurring in US v. Chaires, No. 20-4162 (2d Cir Dec. 7, 2023) (available here), Judge Sullivan explains why he thinks his circuit has it all wrong in its approach to "the 'controlled substance offense' predicate to U.S.S.G. § 4B1.1 — the career offender enhancement."  Hard-core sentencing fans may be uniquely able to work through the whole opinion, but it is worth the full read.  And Judge Sullivan's opinion ends this way:

Given the Commission’s indecision and the Supreme Court’s reluctance, I think it imperative that the courts of appeal converge on the best reading of the career offender enhancement.  To my mind, there can be little doubt which of the two options is that best reading.  The state-dependent approach is firmly grounded in section 4B1.2(b)’s text and will permit a relatively straightforward inquiry.  The categorical approach lacks any foothold in that text, has proven to be hopelessly difficult to administer, and illogically disqualifies untold numbers of state and federal narcotics convictions from serving as predicate offenses — even though those convictions were in fact premised on a federally controlled substance.  For these reasons, I continue to believe that section 4B1.2(b) calls for a state-dependent approach to controlled substance offenses, as six of our sister circuits have already held.  See Jones, 81 F.4th at 599 n.5.  I therefore urge the Second Circuit to correct this error through an en banc or mini en banc proceeding that would overrule our currently binding precedent in Townsend and bring us in line with the majority of circuits to have addressed this issue.   

December 7, 2023 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

The Sentencing Project releases latest report on racial disparities, "One in Five: Racial Disparity in Imprisonment - Causes and Remedies"

As noted in this October post, The Sentencing Project is "producing a series of four reports examining both the narrowing and persistence of racial injustice in the criminal legal system, as well as highlighting promising reforms."  Today, The Sentencing Project released this latest report in this series, the third I believe, titled "One in Five: Racial Disparity in Imprisonment — Causes and Remedies."  Here is part of this new report's executive summary:

The United States experienced a 25% decline in its prison population between 2009, its peak year, and 2021.  While all major racial and ethnic groups experienced decarceration, the Black prison population has downsized the most.  But with the prison population in 2021 nearly six times as large as 50 years ago and Black Americans still imprisoned at five times the rate of whites, the crisis of mass incarceration and its racial injustice remain undeniable. What’s more, the progress made so far is at risk of stalling or being reversed.

This third installment of the One in Five6 series examines three key causes of racial inequality from within the criminal legal system. While the consequences of these policies and issues continue to perpetuate racial and ethnic disparities, at least 50 jurisdictions around the country — including states, the federal government, and localities — have initiated promising reforms to lessen their impact.

1. Laws and policies that appear race-neutral have a disparate racial impact....

2. Racial bias influences criminal legal practitioners’ use of discretion....

3. A financially burdensome and under-resourced criminal legal system puts people with low incomes, who are disproportionately people of color, at a disadvantage....

Prior related posts:

December 7, 2023 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Wednesday, December 06, 2023

"The Verdict on Private Criminal Justice"

The title of this post is the title of this book chapter now available via SSRN which is the final chapter of the book Private Criminal Justice authored by my OSU colleague Ric Simmons. Here is its abstract:

This is the concluding chapter of my book Private Criminal Justice, which was recently published by Cambridge University Press.  The book traces the history of private parties’ involvement in responding to criminal activity, and examines the modern instances of private policing, private adjudications, and vigilante justice.  This chapter first considers how the implementation of a widespread private criminal justice system — that is, responding to and punishing criminal conduct without the participation of the state — can still be responsive to the needs and interests of the community.  The chapter argues that the state in fact does a poor job of representing community interests, due to the politicization of public criminal justice policy and the related rise of mass incarceration, and posits that the private criminal justice system could enhance the influence of community interests on criminal justice policy.

The chapter concedes that currently, the components of our private criminal justice system lack many of the basic procedural protections for defendants, and it explores ways that the private system can be regulated so that defendants receive these protections, or at the very least ensure that defendants are informed of the protections that they are forfeiting when they opt out of the public system.

The chapter then offers suggestions for improving the accountability of private police officers, and for using aspects of the private criminal justice system to ameliorate the inequalities of the public criminal justice system.  It concludes by imagining a world where private criminal justice enforcement, settlements, and adjudications are normalized and common, resulting in a wider net of social control in which more criminal conduct is detected and punished, but the punishments are far less severe than in the current system.

December 6, 2023 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

"Accessing SNAP and TANF Benefits after a Drug Conviction: A Survey of State Laws"

The title of this post is the title of this notable new report produced by the Collateral Consequences Resource Center and authored by Margaret Love and Nick Sibilla. Here are parts of the report's introduction:

This report offers a comprehensive and up-to-date picture of the differing ways states have responded to the 1996 federal ban on access to SNAP and TANF benefits for those with a felony drug conviction, either by opting out of the ban or by modifying it, and includes illustrative maps and relevant sections of statutory text to facilitate analysis and comparison.

The 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) imposed a lifetime ban on federal food assistance benefits (SNAP) and Temporary Assistance for Needy Families (TANF) for anyone with a drug felony conviction obtained after passage of the Act. PRWORA allowed states to opt out of the ban or to modify it, and over the years all but one state has opted out of the ban or modified it for at least one of the two benefit programs. That said, fully half the states remain committed in some fashion to this outdated artifact of the War on Drugs.

Over the years there have been numerous reports critical of the policy underpinnings of the categorical ban on public welfare benefits imposed by PRWORA, and researchers have generally concluded that the ban is counterproductive even in modified form, including in criminal justice terms. Indeed, a recent empirical study of modified versions of the SNAP/TANF bans concluded that by “introducing greater state scrutiny of recipients’ conformity to state-sanctioned behavioral norms,” modified bans are “not inherently less punitive” than full bans.

We do not intend to dwell on the policy arguments against the PRWORA ban in this report. Rather, our purpose here is the more modest one of providing a detailed description of state laws that currently modify participation in the SNAP/TANF bans, for use by policymakers and advocates seeking further reforms. Surprisingly, this has not been done in the more than 25 years since PRWORA’s enactment. Two recent private sector studies have identified the extent of state participation in one or both of the PRWORA bans, but their conclusions are not consistent with one another or, in all cases, with our own research. Notably, neither of these studies documents the specific features of modified bans, which can vary widely from state to state in scope and effect.

Significantly, no previous report on the SNAP/TANF bans has included statutory text that would permit analysis of the ways various states have modified them, and comparisons between and among states. Our report attempts to remedy this shortcoming. We illustrate the national landscape of participation in the SNAP/TANF bans through a set of maps: one map shows the national landscape of participation in the PRWORA ban for all 50 states, and two additional maps show how states have modified the ban for each of the two benefit programs. A 30-page Appendix includes the text and an analysis of each state’s relevant law(s), providing additional detail about how access to benefits may be controlled differently even within the same general category of modification.

We hope that advocates in states that have not yet fully opted out of both the PRWORA bans will find this unique collection of research tools helpful as they work to complete this important law reform project.

December 6, 2023 in Collateral consequences, Drug Offense Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, December 05, 2023

Notable new Gallup polling on views about legal treatment of teens who commit violent crimes

Gallup released this new story about its latest polling on the treatment of juvenile offenders under the headline "Americans Divided on Treatment of Violent Juvenile Offenders."  Here are excerpts:

Americans divide evenly on whether the criminal justice system should treat teens who commit violent crimes the same as adults (46%) or give more lenient treatment in juvenile courts (47%).  This marks a shift in attitudes from two decades ago, when majorities of 65% in 2000 and 59% in 2003 felt juveniles aged 14 to 17 who commit crimes should be treated the same as adult criminals.

The latest results are from Gallup’s annual Crime survey, conducted Oct. 2-23.  The issue of how violent juveniles should be treated is increasingly relevant given the increase in mass shootings, particularly at U.S. schools, with the majority of K-12 school shootings perpetrated by children under age 18....

The views of Democrats, independents and younger adults have changed more than the opinions of Republicans and older adults.  However, all key subgroups show some movement away from believing that violent juvenile offenders should be treated the same as adults.  In fact, in 2000, the various political party and age subgroups generally held similar views, with between 60% and 68% of each believing juveniles should be treated the same as adults.

As a result of the disproportionate changes in opinion, Democrats and adults under age 50 now come down on different sides of the debate than Republicans and older Americans do.  Majorities of Democrats (61%) and adults under age 50 (56%) believe 14- to 17-year-olds who commit violent crimes should get more lenient treatment in a juvenile court, while majorities of Republicans (59%) and adults over age 50 (53%) believe such teens should be treated the same as adults. Political independents are evenly divided on the issue.

College graduates tend to believe juveniles should get more lenient treatment in the justice system, while those without a college degree tend to think juveniles should be treated like adults.  Parents of children under 18 (54%) are more likely than non-parents (45%) to favor teens receiving more lenient treatment in juvenile court....

Criminal justice statistics indicate that fewer young offenders are being tried as adults today than in the past.  Many states with separate juvenile justice systems have changed laws so children under age 18 are no longer automatically charged as adults for certain crimes.  Those laws may have changed because of a new understanding of adolescent development, a greater realization of the role poor mental health can play in teen criminal activity, and the possibility that young people with a criminal history can be rehabilitated.

December 5, 2023 in Elections and sentencing issues in political debates, Offender Characteristics, Who Sentences | Permalink | Comments (4)

Monday, December 04, 2023

"'Progressive' Prosecutors and 'Proper' Punishments"

The title of this post is the title of this new book chapter authored by Benjamin Levin and available via SSRN. Here is its abstract:

After decades of relative inattention to prosecutorial elections, academics and activists recently have focused on “progressive prosecutors” as a promising avenue for criminal justice reform.  That said, the growing literature on progressive prosecutors reflects little clarity about what makes a prosecutor “progressive.”  Recent campaigns suggest disparate visions of how to operationalize “progressive prosecution.”  In this chapter, I describe four ideal types of progressive prosecutor: (1) the progressive who prosecutes, (2) the proceduralist prosecutor, (3) the prosecutorial progressive, and (4) the anti-carceral prosecutor.  Looking to sentencing policy as a case study, I examine how these different ideal types illustrate different visions of criminal justice reform. 

December 4, 2023 in Who Sentences | Permalink | Comments (12)

Sunday, December 03, 2023

Impressive hand-wringing about the "categorical approach" to criminal history from Third Circuit judges

A helpful colleague made sure that I saw the notable opinion authored by Judge Jordan and joined by a half-dozen of his Third Circuit compatriots in US v. Harris, No. 17-1861 (3d Cir. Nov. 27, 2023) (available here).  The opinion is a concurrence in denial of rehearing en banc sought by the government hoping to overturn a key Third Circuit precedent, Mayo.  Mayo ruled a Pennsylvania's aggravated assault conviction did not qualify as "violent" to be a predicate for applying the Armed Career Criminal Act due to the "categorical approach" to criminal priors required by Supreme Court precedent. 

The full 42-page Harris opinion, which is filled with Mayo and mustard, is a must-read for anyone eager to better understand the mess that is federal law seeking to categorize state criminal priors.  I will here quote a number of paragraphs, mostly from the start and end of the opinion, though many more are worth reading: 

We recognize that our decision today declining en banc reconsideration of this matter will be a source of great frustration for the government.  Frustration is the gift that the “categorical approach” keeps on giving.  This peculiar analytical construct has forced us and other courts to reach perverse outcomes in many, many cases, this one being only the latest.  And even when the result of applying the categorical approach sometimes makes sense, time and effort is often wasted because a more obvious route to the sensible result is readily available.  Even worse is the difficulty of justifying the categorical approach and its outcomes to the citizenry we serve.  The public may not care whether anyone finds the categorical approach frustrating, but they do care about justice, and we are unable to explain how our holding in this case satisfies basic notions of right and wrong.  Despairing of that, we write to describe why the outcome here is compelled by precedent and to highlight why changes in the categorical approach are needed.

For those who may not be familiar with the categorical approach, we provide a brief overview of its origin and development, with particular focus on the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), the legislation that, along with another firearms statute, 18 U.S.C. § 924(c), and the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq., has been the primary seedbed for this extraordinary doctrine.  We then explain how application of the categorical approach regularly generates unjust results and taxes judicial resources.  We conclude by explaining our support for a more fact-based approach that would maintain key aspects of Supreme Court precedent while allowing courts to take account of an individual’s actual conduct and, hence, provide real justice....

Time and again, federal courts have been required to hold that state law felony convictions for conduct that plainly involved the use of force — including convictions for voluntary manslaughter, aggravated assault, assault with a deadly weapon with intent to kill, attempted rape, first-degree sexual abuse, sexual abuse by forcible compulsion, taking indecent liberties with a child, maliciously damaging or destroying property by means of an explosive, first-degree robbery, second-degree robbery, first-degree burglary, and second-degree burglary — do not qualify as “violent felonies” under ACCA.  Today, we are likewise compelled to reiterate, bizarre though it sounds, that shooting at a fleeing victim is not a “violent felony,” Harris, 68 F.4th at 141, while in Mayo, we were forced to say that bashing a victim in the head with a brick was not “violent” under ACCA....

Considering the well-intentioned provenance of the categorical approach, it is ironic that it has come to be such an impediment to the sound administration of justice.  Last year, Justice Thomas chose a different metaphor than hole digging, but his point seemed much the same when he memorably observed that the “‘categorical approach’ has led the Federal Judiciary on a ‘journey Through the Looking Glass,’ during which we have found many ‘strange things.’” Taylor, 142 S. Ct. at 2026 (Thomas, J., dissenting) (quoting Lewis Carroll, Alice in Wonderland and Through the Looking Glass 227 (J. Messner ed. 1982)). We hope the journey, and the digging, ends soon.

In the meantime, we have no choice but to deny the government’s petition for en banc review.

December 3, 2023 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Saturday, December 02, 2023

"Courtroom workgroup dynamics and implementation of Three Strikes reform"

The title of this post is the title of this new article published online through the journal Law & Policy and authored by Elsa Y. Chen, Emily Chung and Emily Sands.  Here is its abstract:

In 2012, California's voters passed a ballot initiative that scaled back the state's “Three Strikes” sentencing law and permitted certain individuals who were serving 25-to-life prison terms to petition for resentencing and potentially release.  Using analysis of original qualitative interview data supplemented with court administrative records, this study examines how characteristics of courtroom workgroup members; their intergroup dynamics; political, professional, and administrative considerations; and allocated resources were perceived by court officials to facilitate or impede the implementation of this reform in county courts.

Availability of staff and budget was associated with a higher proportion of completed case dispositions in the first 2 years of implementation, but resources were not the only factor associated with timely case processing.  Courtroom actors' seniority, experience, and professional security facilitated agreement on processes, schedules, and other details.  Small, stable, close-knit groups established routine procedures and developed expertise more quickly, but could not always avoid bottlenecks or delays.  Less stable workgroups had higher rates of denial of petitions for resentencing.  Positions toward Proposition 36 shaped by political, professional, or other priorities were perceived to influence some elected DAs' positions and line prosecutors' behavior, manifesting in cooperation, opposition, or mixed messages.

December 2, 2023 in Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Friday, December 01, 2023

In (sentencing) memoriam: noting a few major sentencing majority opinions by Justice O'Connor

Justice Sandra Day O'Connor was nominated to be the first female Supreme Court Justice by President Ronald Reagan when I was in middle school, and I had been a law professor for nearly a decade by the time she stepped down from being an active member of the Court.   As is true for nearly every Justice, sentencing rulings do not comprise a major part of the notable and consequential corpus of opinions that Justice O'Connor authored during a quarter century on the Court.  (SCOTUSblog reports in this lengthy tribute that "during her nearly quarter-century as a justice, O’Connor wrote 645 opinion.")  But there are still more than enough notable sentencing rulings from Justice O'Connor to make a very long list if I were to detailed them all.  As a memorial, I figured I would take a few moments to provide an abridged list of just some sentencing highlights among the hundreds of controlling opinions authored by Justice O'Connor:

Tison v. Arizona (1987)

Miller v. Florida (1987)

Penry v. Lynaugh (1989)

Coleman v. Thompson (1991)

Monge v. California (1998)

Ewing v. California (2003)

By keeping this list abridged and focused on sentencing-related opinions for the Court, I have left off many of Justice O'Connor's other major contribution in the criminal justice space.  In terms of other big court opinions in the criminal justice arena, Justice O'Connor's work in Teague v. Lane (1989) is arguable the most consequential; with a focus on separate opinions, her major dissents in Apprendi v. New Jersey (2000) and Blakely v. Washington (2004) are especially memorable.

I suspect readers may recall fondly (or perhaps not so fondly) lots of other criminal justice opinions authored by Justice O'Connor not listed above.  I welcome thoughts about her sentencing legacy and any sorts of comments about Justice O'Connor's role in shaping our modern criminal justice jurisprudence.

December 1, 2023 in Who Sentences | Permalink | Comments (1)

DPIC releases year-end report emphasizing small number of executing and death sentencing states in 2023

The Death Penalty Information Center this morning released its annual report here under the heading "The Death Penalty in 2023: Year End Report Only Five States Conducted Executions and Seven States Imposed New Death Sentences in 2023, the Lowest Number of States in 20 Years." Here is the part of the report's introduction, with lots of data and details following thereafter:

This year is the 9th consecutive year with fewer than 30 people executed (24) and fewer than 50 people sentenced to death (21, as of December 1). The 23 men and one woman who were executed in 2023 were the oldest average age (tied with 2021) and spent the longest average number of years in prison in the modern death penalty era before being executed. As in previous years, most prisoners had significant physical and mental health issues at the time of their executions, some of which can be attributed to the many years they spent in severe isolation on death row. Continued difficulties obtaining lethal injection drugs led some states to explore new, untested methods of execution or revive previously abandoned methods. Other states enacted or continued pauses on executions while the state’s method of execution was studied....

The Supreme Court granted only one stay of execution, reflecting the view of some members of the Court that prisoners bring “last-minute claims that will delay the execution, no matter how groundless.” The Court granted certiorari in only four death penalty cases, all of which pertained to procedural issues, and turned away the overwhelming majority of petitions filed by death-sentenced prisoners. Some state officials and legislatures may once again feel unrestrained by the risk of judicial oversight or correction; Florida directly flouted Supreme Court precedent with new legislation making a non-homicide crime a death-eligible offense, while states like Alabama announced plans to use nitrogen gas in an untested, risky method of execution.

December 1, 2023 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Who Sentences | Permalink | Comments (1)

Thursday, November 30, 2023

Notable resources and notice from the US Sentencing Commission

Via an official US Sentencing Commission email this afternoon, I received word on two new items of note and will just cut-and-paste the details here:

Public Meeting Scheduled for December 14, 2023 at 2:00pm (ET)

We invite you to join us on Thursday, December 14, 2023 at 2 p.m. (ET) for a public meeting of the U.S. Sentencing Commission.  The meeting will be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., in Suite 2-500 (South Lobby). The Commission will also livestream and record this event at the link below. The agenda follows:

  • Vote to Adopt August 2023 Meeting Minutes
  • Report from the Chair
  • Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment

Livestream Link

Problem-Solving Court Resources

(November 30, 2023) As part of its policy priority work this year, the Commission collaborated with chief judges, clerks of court, and chief probation officers from all 94 federal judicial districts to compile and publicly release information in support of problem-solving court program development. Access an interactive map, table of program documents, and a timeline of Commission work at the link below.

Explore Here

The big-ticket item here, of course, is "Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment."  Last year's proposed guideline amendments were quite significant and consequential, and I am excited to see in about two weeks if this year's proposals will merit the same description.

November 30, 2023 in Criminal Sentences Alternatives, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Oklahoma completes execution despite clemency recommendation by Oklahoma Pardon and Parole Board

As detailed in this new PBS News Hour piece, "Oklahoma executed death row inmate Phillip Hancock on Thursday, despite his claims of self defense and a recommendation for clemency by the Oklahoma Pardon and Parole Board."  Here is more:

Republican Gov. Kevin Stitt’s decision to allow the execution to move forward comes as some state Republicans and advocates call for a pause in executions and a review of Oklahoma’s 36 pending death row cases.

Hancock, 59, was convicted of two murders in 2001.  His attorneys and supporters maintain that he acted in self-defense, saying he was unarmed when he entered an Oklahoma City residence where Robert Jett Jr., 37, and James Lynch, 58, the two murder victims, were present.  Hancock has said he was attacked, beaten with a breakover bar, and threatened with a gun before managing to retrieve the weapon and fatally shooting the two men.  Hancock’s defense team argued the trial lacked physical evidence supporting the prosecution’s version of events.  A woman present during the incident testified that she could not witness the struggle, further complicating the narrative over what happened.

The state board voted 3-2 in favor of clemency in early November.  It was the fourth such recommendation since the state resumed executions in 2021, following a six-year moratorium. Stitt, who previously commuted the sentence of Julius Jones in 2021, did not intervene this time. He denied Hancock’s request for clemency just after 10 a.m. local time, when the execution was scheduled to begin....

Oklahoma has executed 122 people since 1976, the highest number of executions per capita in the country. 

“We are profoundly disappointed that Gov. Stitt has rejected the Pardon and Parole Board’s recommendation of clemency for Phillip Hancock,” Brett Farley of the Oklahoma Conservatives Concerned About the Death Penalty said in a statement. Oklahoma’s practice of capital punishment continues to be riddled with problems, including the inability of the state to prevent the execution of innocent people. Should the state proceed with the scheduled execution on Thursday, it will be yet another gross miscarriage of justice. Phillip’s case is one more reminder why we must insist state leaders reinstate a moratorium in order to correct these problems.”

Republican state Reps. Kevin McDugle and Justin J.J. Humphrey have been critical of Oklahoma’s death row sentences, saying people have been subject to system-wide failures in the state’s justice system, from ineffective defense counsel to prosecutorial overreach.  McDugle said that Hancock was undeserving of such a punishment.  “Right now I don’t believe in the death penalty in Oklahoma. I don’t,” McDugle told the PBS NewsHour in October.  “That’s why we are trying to fix it because if we can’t fix it to where we can execute those who deserve to be executed and quit executing those who don’t deserve to be executed … then we need to get rid of it.”

Earlier this year, supporters of Hancock, including his attorneys, provided the state board with key declarations.  One statement from Hancock’s former girlfriend claimed she arranged with one of the victims to lure Hancock to the house to be “taken care of.”  Hancock’s trial attorney, who admitted to a relapse of drug and alcohol addiction during the case, expressed embarrassment about his representation.  The foreperson of the jury that convicted Hancock provided a declaration that the majority of jurors believed Hancock initially acted in self-defense but later became the aggressor.

November 30, 2023 in Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Wednesday, November 29, 2023

Prison Policy Initiative sets out long list of "Winnable criminal justice reforms" for state systems

Prison Policy Initiative has produced this new 16-page document titled "Winnable criminal justice reforms: A Prison Policy Initiative briefing on promising state reform issues for 2024."  I believe this kind of publication is now an annual production by PPI, and this year's version lists 32 suggested reforms.  Here is how the report describes its mission, followed by links to the main reform areas identified:

In this year’s guide to winnable criminal justice reforms, we’ve added information on how Medicaid and Medicare laws can be changed to better serve people in reentry, and we’ve added a section on efforts around the country to legalize marijuana and decriminalize other drugs.  As always, we’ve also updated our list of Winnable criminal justice reforms and added new example bills and resources where you can learn more.

While this briefing is not intended to be a comprehensive platform, we’ve curated this list to offer policymakers and advocates straightforward solutions that would have the greatest impacts on reducing incarceration and ameliorating harms experienced by those with a conviction history, without further investments in the carceral system.  We have also included some talking points and resources that can be used to push back when carve-outs to criminal justice reforms (that is, categorical exclusions of people who would benefit from reforms) are being discussed.

Because each state’s criminal legal system varies so much — from law and procedures, the data collected, and even how the same words are defined — it can be difficult to apply lessons from other states to the same problem in one’s own.  This guide is designed to facilitate the sharing of ideas and information across states.  That said, while we point to multiple bills, model legislation, and regulations in this document, we also recognize that many of these examples reflect compromise and could be strengthened or made more comprehensive.  This information is intended to serve as a resource as you determine which problems are a priority in your state and which lessons from elsewhere are most useful.

The reforms focus on nine areas:

November 29, 2023 in Campaign 2024 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (27)