Tuesday, June 07, 2022

Notable cert petition (and amicus) urges SCOTUS to take up drug quantity calculations review standards

Long-time readers know that I have long complained about how the Supreme Court sets its criminal docket and repeatedly fails to take up many consequential sentencing issues (except in capital and ACCA cases).  But hope springs eternal, and issues needing SCOTUS attention are never ending.  To that end, I want to flag a recent cert petition, which has new amicus support, and is scheduled to be considered by the Justices this week.  The case is Tucker v. United States, No. 21-7769, coming from the DC Circuit, and here is an excerpt from the cert petition:   

A fourth of the federal cases reported to the United States Sentencing Commission are narcotics prosecutions.  The issue of drug quantity frequently heavily influences the element of Relevant Conduct which factors into those offenders’ Sentencing Guidelines’ Base Offense Levels.

After being convicted by a jury for a federal narcotics conspiracy charge, Petitioner unsuccessfully contested the district judge’s approach to determining the quantity of drugs for which he was being held accountable.  On appeal, Petitioner contended that the trial judge’s methodology should be reviewed de novo.  The Circuit Court reviewed for clear error, which is the standard followed in three courts of appeals.  Conversely, five Circuits apply a de novo standard of review; the process employed by two other Circuits is equally rigorous.  This distinction can make a difference: courts using the more vigorous standard of review have reversed sentences flowing from methodologies that depended more on conjecture than recognized criteria....

Deciding the standard of appellate review is a matter for this Court.  Thus understood, the question presented is whether the Court should resolve the circuit conflict by requiring de novo review for contested methodologies used to determine Base Offense Levels in narcotics prosecutions.

This amicus brief filed in support of the petition frames the issue this way:

Whether the methodology used by a district court to determine drug quantity for purposes of sentencing for drug trafficking offenses should be reviewed de novo, under a heightened standard, or only for clear error, the standard followed by D.C. Circuit below.

Given that nearly 20,000 federal drug cases are sentenced every year — that's roughly 400 each and every week — it is hard to think of a federal sentencing issue much more consequential than the calculation and review of drug quantities.  Fingers crossed this case might capture the attention of at least four Justices.

Just a very few of many prior related posts newer and older:

June 7, 2022 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, June 06, 2022

"'How Much Time Am I Looking At?': Plea Bargains, Harsh Punishments, and Low Trial Rates in Southwest Border Districts"

The title of this post is the title of this recent article authored by Walter Gonçalves and available via SSRN. Here is its abstract:

Scholarship on the American trial penalty, vast and diverse, analyzes it in connection with plea bargaining’s dominance, its growth starting in the last third of the nineteenth century, and present-day racial disparities at sentencing.  The overcriminalization and quick processing of people of color in southwest border districts cannot be understood without an analysis of how trial sanctions impact illegal entry and drug trafficking in these busy jurisdictions.  Professor Ronald Wright wrote about the role of prosecutorial power and plea bargaining in the federal system, but he passed over how and why immigration crimes became widespread.  Any discussion of prosecutors and plea bargaining requires an understanding of how they manage illegal entrants and drug couriers — the most prevalent defendants in federal court.

This Article analyzes the reasons for increasing plea rates and trial penalties in the southwest and how they helped enable the proliferation of fast-track programs.  The plea-bargaining machine used racial stereotypes and stigmatizations of Latinx and African American populations to justify few trials and process as many migrants and drug couriers as possible.  This paper provides practical advice for criminal defense lawyers when representing clients at the plea and sentencing stage of a case.  It also unites a discussion of implicit bias to explain why judges disfavor racial minorities.

June 6, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Reviewing big criminal cases lingering as SCOTUS seeks to wrap up a remarkable Term

Entering the current Supreme Court Term last fall (the term known as October Term 2021), the sentencing case that garnered the most attention was US v. TsarnaevNo. 20-443, concerning the lawfulness of the Boston Marathon Bomber's death sentence.  And, at that time, the sentencing case that I thought could be most impactful was Wooden v. US, No. 20-5279, concerning application of the Armed Career Criminal Act.  The Term also started with arguments scheduled on two potential landmark cases significantly implicating a range of criminal justice issues: New York State Rifle & Pistol Association Inc. v. Bruen, No. 20-843, concerning the reach and application of the Second Amendment, and Dobbs v. Jackson Women’s Health Organization, No. 19-1392, concerning when and how abortions may be criminalized.

Fast forward eight months and SCOTUS activity and jurisprudence appears ever more uncertain, in part because we now know that soon-to-be-Justice Ketanji Brown Jackson will be replacing soon-to-retire Justice Stephen Breyer and in part because we still do not know who leaked a draft majority opinion in Dobbs and how that might be impacting the Court's work.  We did get (predictable?) opinions in Tsarnaev (a win for the government) and Wooden (a win for the defendant), and a few more notable criminal justice issues were added to the SCOTUS docket. 

As we head now into the traditional finishing month of the SCOTUS Term, and especially because the Justices handed down only three civil opinions this morning, I figured it would be useful to review the considerable number of criminal cases still pending at the Supreme Court.  Here, with help from SCOTUSblog, are the big undecided criminal cases in my sights:

From the November sitting

Issue(s): Whether the state of New York's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

From the December sitting

Issue(s): Whether all pre-viability prohibitions on elective abortions are unconstitutional.
U.S. v. TaylorNo. 20-1459 [Arg: 12.7.2021]
Issue(s): Whether 18 U.S.C. § 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a).

From the January sitting

Concepcion v. U.S.No. 20-1650 [Arg: 1.19.2022]
Issue(s): Whether, when deciding if it should “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act of 2018, a district court must or may consider intervening legal and factual developments.

From the February sitting

Ruan v. U.S.No. 20-1410 [Arg: 03.1.2022]
Issue(s): Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.

From the April sitting

Nance v. WardNo. 21-439 [Arg: 04.25.2022]
Issue(s): (1) Whether an inmate’s as-applied method-of-execution challenge must be raised in a habeas petition instead of through a 42 U.S.C. § 1983 action if the inmate pleads an alternative method of execution not currently authorized by state law; and (2) whether, if such a challenge must be raised in habeas, it constitutes a successive petition when the challenge would not have been ripe at the time of the inmate’s first habeas petition.

This list of a half-dozen cases I am eagerly awaiting does not provide a complete accounting of all the criminal-law-relevant matters still on the SCOTUS docket from this Term.  But it does comprise those cases that I think should likely be of greatest interest to sentencing fans.  (And, with roughly 30 cases left to be decided, this list comprises about 20% of what's now left for the Court to resolve.) 

Since the start of the Term, I figured we should not expect to see Bruen or Dobbs decided before the very last week of the Term.  But the fact that cases like Taylor and Conception are still pending strikes me as an interesting signal that something consequential (and divided) may be afoot in these cases.  But SCOTUS tea-leaf reading is always fraught, and perhaps this year it would be wise to just predict that everything is unpredictable.

June 6, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Sunday, June 05, 2022

Another example of "old law" federal prisoners not getting compassionate release equal treatment

Last year, I blogged here about an NPR story regrading so-called "old law" federal prisoners, persons who committed federal crimes before November 1987 and who are therefore not currently able to apply to a judge for compassionate release under the FIRST STEP Act.  This follow-up post also noted the realities facing the group of very old (and often very sick) people in federal prison who were convicted of crimes before Nov 1987 and cannot seek compassionate release directly from courts. 

This past week, a helpful reader sent me a judicial opinion involving one of these "old law" prisoners, US v. Joseph, No.86-CR-00322 (SD Fla. June 2, 2022) (available for download below).  This short opinion highlights the plight of one of these prisoners, whom the judge decides meets the FIRST STEP Act criteria for compassionate release, but still cannot get a court to directly order a sentence reduction as can all prisoners convicted after Nov 1987.  I recommend the eight-page Joseph opinion in full, and here are excerpts (with some cites removed):

To put it simply, Mr. Joseph, who stands convicted of crimes occurring prior to November 1, 1987, may not personally move a district court for compassionate release....  While the Court is unable to grant the relief requested, Mr. Joseph remains able to submit a request for motion under section 4205(g) from the Warden at his facility.  U.S. Dep’t of Justice, Federal Bureau of Prisons, No. 5050.50, Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g) (2019) (“BOP Guidelines”).  In such request, Mr. Joseph must address the extraordinary and compelling circumstances that he believes warrant consideration, as well as his proposed release plan.  As explained below, Mr. Joseph has presented extraordinary and compelling circumstances, no longer presents a danger to society, and has an exceptional release plan....

Mr. Joseph is seventy-three years old, suffers from deteriorating medical conditions (including anemia, thrombocytopenia, prediabetes, bilateral low vision), has a history of leukopenia, prostate cancer, and atrial fibrillation, and is also overweight.  Report at 5.  At the hearing held by Magistrate Judge Becerra, Dr. Kossouf provided new testimony as to Mr. Joseph’s disconcerting blood cell condition.  Specifically, he testified that Mr. Joseph suffers from a life- threatening blood cell condition that will “inevitably evolve into an aggressive form of leukemia.” Report at 13. Importantly, there is no treatment for Mr. Joseph’s condition and his most recent bloodwork demonstrated a sharp deterioration in his health. Id. (emphasis added)....

Mr. Joseph has provided significant evidence of both the extent and depth of his family support — financially and emotionally.  It is the exceptional nature of his family support that makes it extremely unlikely Mr. Joseph will reoffend.  Moreover, almost forty years have passed since Mr. Joseph committed his offenses and he would be closely supervised while residing with his son and daughter-in-law.  Further, in an almost unprecedented turn of events, Mr. Tilman, a retired sergeant, testified in support of Mr. Joseph’s compassionate release to home confinement.  The retired sergeant corroborated the testimony of Trevin Joseph, Mr. Joseph’s son, regarding the extensive support Mr. Joseph will have upon his release.  In other words, Mr. Joseph has a release plan that this Court views favorably.

Mr. Joseph is not yet eligible for parole.  Thus, he cannot seek early release through this avenue.  In that way, he is no different from a “new law” prisoner — for whom no parole may be sought.  However, unlike a “new law” prisoner, Mr. Joseph can only request compassionate release through the Warden at his facility.  If the Warden denies his request, that is the proverbial end of the road for Mr. Joseph.  The “new law” prisoner, however, has one additional option — a direct motion to this Court upon exhaustion of administrative remedies.  This disparity between “old law” and “new law” prisoners appears wholly unwarranted.

In sum, the statutory language here is clear and unequivocal.  Mr. Joseph cannot seek relief directly from this Court based on compassionate release under section 3582.  Nonetheless, the Court trusts that the Warden can initiate the proper compassionate release process for an “old law” prisoner like Mr. Joseph under section 4205.  In the meantime, the disparities highlighted in this Order certainly merit further examination by Congress, which is in the best position to determine whether it is appropriate to continue preventing inmates who committed offenses on or before October 31, 1987 from fully availing themselves of the First Step Act.  After all, one of Congress’s goals in passing the FSA was to broaden the reach of section 3582(c)(1)(A).

Download 86-CR-00322 - US v Joseph - CR Order

Prior related posts:

June 5, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Saturday, June 04, 2022

Notable (Pyrrhic?) victory under California Racial Justice Act for double murderer getting LWOP

A couple of years ago in this post, I noted the enactment of the California Racial Justice Act and suggested it could have a significant impact depending upon how it was applied by judges in the state.  I have not followed closely subsequent litigation over the CRJA's application, but this week I did see this local report on a notable ruling under the headline "O.C. district attorney violated Racial Justice Act in double murder case, judge finds."  Here are the basics:

An Orange County Superior Court judge ruled Friday that Dist. Atty. Todd Spitzer violated the Racial Justice Act when he made comments about the dating habits of Black men while discussing a double murder case.

However, Judge Gregg Prickett stopped short of imposing any sanctions that would have reduced Jamon Buggs’ sentence.  The appropriate remedy in the case — seeking life without the possibility of parole rather than the death penalty — had already been applied by the district attorney’s office, Prickett said.

The Racial Justice Act, passed in 2020, prohibits prosecutors from seeking or obtaining a criminal conviction or imposing a sentence based on race, ethnicity or national origin.  “The defendant has received what the statute would say was the appropriate remedy for the violation,” Prickett said.  “The court does not find that it would be in the interest of justice to dismiss enhancements, special circumstances or reduce charges.”

Buggs, who was convicted of murder in May for fatally shooting a man and woman inside a Newport Beach condominium, allegedly in a jealous rage, was sentenced by Prickett to life in prison without the possibility of parole....  During a roughly two-week trial, Buggs’ attorneys argued that he killed Darren Partch, 38, and Wendi Miller, 48, in the heat of passion, fueled by what they described as a toxic relationship between Buggs and his ex-girlfriend, Samantha Brewers....

The case had been mired in controversy since Spitzer made racist comments about the dating habits of Black men during an October staff meeting on whether to pursue the death penalty against Buggs.  At the meeting, Spitzer told prosecutors that he knows “many Black people who get themselves out of their bad circumstances and bad situations by only dating white women,” according to a memo written by then-prosecutor Ebrahim Baytieh, who attended the meeting.

Spitzer has said allegations of “any racial animus or bias against the defendant are baseless and quite frankly offensive.”  Buggs is Black, while Buggs’ ex-girlfriend and Miller are both white. Spitzer has alleged that Baytieh wrote the memo in retaliation because Spitzer had initiated an investigation of him related to another murder case....

Prosecutors argued in court Friday that the defense failed to provide a preponderance of evidence that Spitzer’s comments negatively affected Buggs’ case. Denise Gragg, one of Buggs’ defense attorneys, said Spitzer’s comments were an example of “the oldest bias that exists” regarding Black men and white women. She added that Spitzer has not acknowledged his comments as biased.

“If you can’t even recognize that is a bias, how can you assure yourself or us that there were not decisions made in this case or not made in this case that were influenced by that bias?” she asked. “Justice is not just done from the jury box,” she added. “It’s done from the back halls; it’s done in chambers…. That is the place where this case was damaged.”

A quick Google search did not turn up any reports or data on how the California Racial Justice Act has been applied or adjudicated so far.  I continue to suspect the CJRA could have a variety of notable impacts (especially if it were to ever be made retroactive). But the accurate statement that many criminal justice decisions get made in "back halls," and the broader challenge of identifying and crafting remedies for problematic discretionary decision-making, necessarily means the impact of the CJRA may prove hard to fully gauge or assess.

June 4, 2022 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Friday, June 03, 2022

What following the science might mean in when it comes to the actual laboratories of criminal justice

This interesting new Hill commentary, authored by Michael Kusluski and headlined "An easy win for criminal justice reform: Independent crime labs," highlights just one not so sexy, but still very important frontier for criminal justice reform. I recommend the full piece, and here are excerpts:

The 2009 National Academy of Sciences’ report on crime labs identified 13 areas for improvement.  While significant progress has been made, action on one recommendation has languished: to remove all public forensic laboratories and facilities from the administrative control of law enforcement agencies or prosecutors’ offices.

Most crime labs still operate under law enforcement control. Discussions of potential bias, however, distract from the larger problem: that police and prosecutors’ offices are simply not qualified to operate forensic laboratories.

The real issue is not bias but the delivery of good science.  Most publicly funded forensic laboratories (even those with a civilian lab director) ultimately report to individuals with no background in science.  This control may be as simple as setting budgets and priorities, but often involves setting policies and procedures.  In many jurisdictions, reserving crime scene (or even laboratory) positions for police personnel — no science degree required — still exists.  While some critics worry that forensic scientists could have their opinion swayed in one case or another, decisions are being made by nonscientists who influence millions of cases annually....

There is precedent for independent crime labs.  Medical examiners’ laboratories have always operated separately from the police.  The state forensic laboratories in Virginia and Alabama have been independent for decades.  A number of quasi-governmental and private (mostly DNA) forensic labs operate around the country, processing backlogged or specialty evidence.

The independent public crime labs that do exist typically enjoy department-level status rather than the bureau- or division-level status they would have under police departments.  Several jurisdictions (mostly municipalities) have opted to transition their police labs to independent agencies in recent years.  Unfortunately, they have often waited until the crime lab was in trouble or the jurisdiction was strapped for cash.

Because most forensic analyses take place at the state and local level, these changes will largely depend on state legislators, who may be reluctant to appear anti-police.  But the American National Standards Institute-National Accreditation Board (ANAB), which accredits most crime labs in the United States could require labs to move toward independence, forcing legislators to act.  Similarly, the Bureau of Justice Assistance (BJA) could withhold future funding for labs that are not independent.  Since forensic labs have become accustomed to federal funding for overtime and backlog reduction, this would be an effective incentive for change.

June 3, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"'Tough Talking' Sacramento District Attorney Presides Over Homicide And Violence Surge While 'Liberal' San Francisco Enjoys Major Decreases"

Image-fullNext week brings a high-profile recall vote on San Francisco's District Attorney Chesa Boudin, an election that many have come to view as a referendum on the progressive prosecutor movement. Because I consider all "movements" in the criminal justice reform space to be dynamic and erratic, I rarely think any one local vote itself reshapes the reform landscape.  But I still understand why this vote is getting considerable attention, and lots of politicians and pundits will surely see lots of lessons from the outcome of this interesting bit of local criminal justice democracy.  

Against that backdrop comes this notable new report from the Center on Juvenile and Criminal Justice.  Here is the report's introduction:

San Francisco has seen major decreases in crime amid progressive reforms, while nearby Sacramento is seeing a homicide and violence surge under the leadership of a conservative prosecutor whose policies feature high rates of incarceration.  Sacramento District Attorney Anne Marie Schubert has positioned herself as the state’s leading “tough-on-crime” candidate as she criticizes progressive San Francisco DA Chesa Boudin and seeks to unseat California’s reform-minded Attorney General Rob Bonta (Hooks, 2021; Schubert, 2022).  Yet DA Schubert’s tenure has coincided with increased homicide and violent crime, lesser declines in property crime, and above average rates of homicide and violent crime for urban Sacramento than in San Francisco.  Schubert’s “tough on crime” rhetoric and policies have not delivered lower or falling crime rates.

This analysis compares crime trends during Schubert’s conservative prosecutorial term in office (2015- present) with those of San Francisco’s progressive prosecutors (George Gascón and Chesa Boudin) during a key period in California’s criminal justice reform era.  If talking “tough on crime” and incarcerating more people actually reduced crime, we would expect to see a much bigger decline in crime and a lower crime rate in Sacramento than in San Francisco.  In fact, the opposite is the case. San Francisco has sustained larger crime declines and achieved lower rates of violent crime than the City of Sacramento since 2014.

The figure reprinted here is only one of a number of graphics from the report seeking to provide a broad view of crime rates and trends in two nearby (but very different) California cities. According to the report, the data show that "violent crime rates have risen an average of 9% in Sacramento while falling an average of 29% in San Francisco from 2014-2021, a period that spans the tenures of DA Schubert and San Francisco's progressive DA’s."  Here are some more data points from the report as highlighted on this CJCJ webpage:

June 3, 2022 in National and State Crime Data, Who Sentences | Permalink | Comments (14)

Thursday, June 02, 2022

Hoping it is not yet time to give up on passage of the EQUAL Act

When the US House of Representatives voted overwhelmingly in Sept 2021, by a tally of 361-66, to pass the EQUAL Act to equalize powder and crack cocaine sentences, I thought the long ugly stain of the crack/powder disparity might be finally about to come to an end.  In this post, I wondered "After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong?."  Nearly nine months later, it is now obvious that the Senate was not able to move quickly on this issue.  But, I was still optimistic in March 2022 upon news that a full 10 GOP Senators were now signed on as co-sponsors of the EQUAL Act, and so I asked here "Is Congress finally on the verge of equalizing crack and powder cocaine sentences?."

But April brought showers dousing some of my hopefulness in the form of a group of GOP Senators introducing a competing crack/powder sentencing reform bill tougher than EQUAL Act and a press report that Democrats were fearful of potential floor votes around possible EQUAL Act amendments.  And yesterday, I saw that FAMM President Kevin Ring has this new commentary, headlined "The Senate’s Unwillingness to Pass the EQUAL Act Highlights Its Dysfunction," while almost reads like a boxer's corner man throwing in the towel.  Here are excerpts:

When Lavonda Bonds, Yvonne Mosley, and Sagan Soto-Stanton saw the U.S. House overwhelmingly pass a bill last September to eliminate the federal sentencing disparity between crack and powder cocaine, they were excited and hopeful.  Their loved ones, who’ve each spent decades languishing in federal prison, could finally come home if the Senate would simply follow suit and pass this noncontroversial reform, known as the EQUAL Act.

Eight months later, these three women — and thousands of other families — are still waiting for the Senate to act.  They want to know what the holdup is.  They think I might know because I have been working in and around Congress for the past 30 years, first as a Capitol Hill staffer, then as a lobbyist, and for the past 13 years, as a D.C.-based advocate for families with loved ones in prison.

Unfortunately, I have to tell them all the same thing: The Senate is broken.  And the EQUAL Act is perhaps the best and most infuriating example of just how broken the Senate has become — it can’t even pass a bill with broad, bipartisan support and fix a 36-year-old mistake....

Congress, which voted unanimously in 2010 to reduce the disparity to 18:1, looked poised to finally eliminate it this year.  A diverse coalition of groups from across the ideological spectrum, including organizations representing police and prosecutors, civil rights, and civil liberties, joined together to support the EQUAL Act to end the unwarranted disparity.

The U.S. House approved the EQUAL Act last September by a vote of 361–66. House Republican Leader Kevin McCarthy (R-Calif.), conservative Reps. Jim Jordan (R-Ohio) and Louie Gohmert (R-Tex.), and nearly 70 percent of the Republican caucus joined every House Democrat in a powerful display of bipartisanship on a matter of equal justice.

As attention turned to the Senate, the bill’s supporters secured eleven Republican cosponsors (and more private commitments) to demonstrate that the EQUAL Act was bipartisan, popular, and would not fall victim to the filibuster, the Senate rule requiring 60 votes to cut off debate.  There’s no threat of filibuster preventing a vote for the EQUAL act, which could change the lives of thousands of suffering families.

So what’s the problem?  Senators may have to vote on amendments that get offered to the bill and they are scared.  They fear that members in the small minority who oppose the bill will offer amendments that sound good, yet are bad policy, known as “poison pills.”

This fear has always existed, especially in election years, but in recent years it has grown to the point of creating paralysis.  In the past, supporters of important reforms would stand together in opposition to obviously ill-intentioned amendments.  But senators today obsess over voting against poison pills they think will hurt their re-election chances, and leaders of the Senate’s majority party fear these votes could lose their side’s control of the chamber.  The Democrats control the Senate now, but this has been the practice of both parties in recent years.

The result is an unwillingness to move even popular reforms like the EQUAL Act. Filibuster or not, the Senate is broken.  And if it doesn’t get fixed soon, the families of Lavonda, Yvonne, Sagan, and thousands of others will remain separated by prison bars for no reason.

I do not think this commentary signals that the EQUAL Act cannot still get passed, but it reinforces my fear that the climb is far more uphill than it seemingly should be. One might especially recall that the FIRST STEP Act got to Prez Trump's desk during the lame-duck days after the 2018 election, so maybe that history foreshadows a 2022 path for the EQUAL Act.  But, whatever might come of this particular bill, I continue to be troubled to hear that the Senate cannot advance good policy because it seems a few of its members may fail to understand how to manage politics.  Sigh.

A few of many prior posts on the EQUAL Act:

June 2, 2022 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Offense Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

"Gentlewomen of the Jury"

The title of this post is the title of this notable paper recently posted to SSRN authored by Vivian Rotenstein and Valerie P. Hans. (The recent verdict in a high-profile state civil trial with a small, mostly male jury perhaps makes this research especially timely.) Here is the paper's abstract:

This Article undertakes a contemporary assessment of the role of women on the jury.  In 1946, at a time when few women served on U.S. juries, the all-male Supreme Court opined in Ballard v. United States that “The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of one on the other is among the imponderables.”  Three-quarters of a century later, the legal and social status of women has changed dramatically, with increased participation in the labor force, expanded leadership roles, and the removal of legal and other barriers to civic engagement, including jury service.  Theoretical developments and research have produced new insights about how gender-conforming individuals enact their gender roles.  We combine these insights with a substantial body of jury research that has examined the effects of a juror’s gender on decision-making processes and verdict preferences in criminal and civil cases.  We also consider how nonbinary and other gender-nonconforming people might bring distinctive perspectives and experiences to the jury.

After a review of the historical record, describing shifts over time in women’s jury participation in the face of legal and societal barriers, we summarize the evidence from decision-making research, gender scholarship, and jury studies to examine whether women bring a different voice to jury service.  Our review, which shows substantial overlap as a function of a juror’s gender along with significant areas of divergence, underscores the importance of full and equitable participation on the jury.

June 2, 2022 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Wednesday, June 01, 2022

John Hinckley, Prez Reagan's would-be assassin in 1981, due to be fully released this month 40 years after being found not guilty by reason of insanity

As reported in this new AP article, "John Hinckley, who shot President Ronald Reagan in 1981, is “no longer a danger to himself or others” and will be freed from all restrictions this month, a federal judge said Wednesday, capping Hinckley’s four-decade journey through the legal and mental health systems."  Here is more:

U.S. District Court Judge Paul L. Friedman said in September that he would free Hinckley from all remaining restrictions on June 15 as long as Hinckley continued to do well living in the community in Virginia as he has for years.  At a hearing Wednesday in Washington which Hinckley did not attend, Friedman noted Hinckley has continued to do well, and the judge made no changes to his plans for full freedom from court oversight.

“He’s been scrutinized.  He’s passed every test. He’s no longer a danger to himself or others,” Friedman said at a hearing that lasted about an hour.  Friedman devoted much of the hearing to talking about the “long road” of the case, which he was randomly assigned two decades ago, the third judge to be involved in the case.  He noted that Hinckley, who turned 67 on Sunday, was profoundly troubled when he shot Reagan but that he had been able to get mental health help.  Hinckley has shown no signs of active mental illness since the mid-1980s, the judge noted Wednesday, and has exhibited no violent behavior or interest in weapons.

Hinckley was confined to a mental hospital in Washington for more than two decades after a jury found him not guilty by reason of insanity in shooting Reagan.  Starting in 2003 Friedman began allowing Hinckley to spend longer and longer stretches in the community with requirements like attending therapy and restrictions on where he can travel.  He’s been living full-time in Virginia since 2016, though still under restrictions.  Some of those include: allowing officials access to his electronic devices, email and online accounts; being barred from traveling to places where he knows there will be someone protected by the Secret Service, and giving three days’ notice if he wants to travel more than 75 miles (120 kilometers) from his home in Virginia.

Prosecutors had previously opposed ending restrictions, but they changed their position last year, saying they would agree to Hinckley’s release from conditions if he continued to show mental stability and follow restrictions.  Prosecutor Kacie Weston said in court Wednesday that the government believes the case “has demonstrated the success that can come from a wraparound mental health system.”  She noted Hinckley has expressed a desire to continue receiving mental health services even after he is no longer required to do so, and said the government wishes “him success for both his sake as well as the safety of the community.”  Hinckley’s longtime lawyer, Barry Levine, said the case had “started with a troubled young man who inflicted great harm” and but that, in the end: “I think we have salvaged a life.”...

Reagan recovered from the March 30, 1981, shooting, but his press secretary, James Brady, who died in 2014, was partially paralyzed as a result.  Secret Service agent Timothy McCarthy and Washington police officer Thomas Delahanty were also wounded.  Reagan died in 2004.

In the 2000s, Hinckley began, with the judge’s approval, making visits to his parents’ home in Williamsburg, Virginia.  His father died in 2008, but in 2016 he was given permission to live with his mother full time.  Still, he was required to attend individual and group therapy sessions, was barred from talking to the media and could only travel within a limited area. Secret Service would also periodically follow him.  Hinckley’s mother died in 2021. He has since moved out of her home. In recent years, Hinckley has made money by selling items at an antique mall and by selling books online.

June 1, 2022 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Robina Institute releases big new report on "American Prison-Release Systems: Indeterminacy in Sentencing and the Control of Prison Population Size"

American_prison-release_systems_page_coverThe Robina Institute of Criminal Law and Criminal Justice today released this great big new report titled ""American Prison-Release Systems: Indeterminacy in Sentencing and the Control of Prison Population Size."  Here are excerpts from this important report's introduction:

“Indeterminacy” is the product of uncertainty, after a judge has pronounced a prison sentence, about later official decisions that will influence the actual time served by the defendant.  The uncertainty extends over many future decisions, such as good-time awards or forfeitures by prison officials and release or release-denial decisions by parole boards.  To the extent these later decision patterns are unpredictable, the judge’s sentence is “indeterminate” on the day of sentencing.  When prison sentences are highly indeterminate, many months or years of time-to-be-served can be unforeseeable in individual cases.

From a systemic perspective, indeterminacy can be seen as the field of play in which back-end officials with time-served discretion exercise their powers.  The larger the field — the greater the degree of indeterminacy — the greater the whole-system impact of back-end decisions.  Indeterminacy builds up cumulative effects over hundreds and thousands of cases. In systems with high degrees of indeterminacy, a substantial amount of control over prison population size is located at the back end of the system.  In many states, back-end officials have more to say about prison numbers than sentencing courts.

For those concerned about mass incarceration, serious attention should be paid to the prison-release frameworks at the back ends of America sentencing systems.  These are varied and are often highly complex.  In each state, it is important to consider the institutional structure for release decisions, how and by whom time-served discretion is currently being exercised, and the range of possibilities for future changes in existing decision patterns.  Not all, but a large portion of the nation’s prison policy is implicated. In recent years, much of the mass incarceration debate has been focused on “front-end” decisionmakers such as courts and prosecutors.  For a comprehensive slate of possible reforms, equal attention must be directed to the back end.

This project offers new conceptual tools to better understand and compare the wide range of prison-release systems across America.  We hope this will allow state officials to see their own systems in new perspective, and may shine a spotlight on policy options that would otherwise go unseen.

June 1, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, May 31, 2022

"Sounds of Silence: A Thematic Analysis of Victim Impact Statements"

The title of this post is the title of this new paper now available via SSRN and authored by Tali Gal and Ruthy Lowenstein Lowenstein lazar.  Here is its abstract:

Victim Impact Statement (VIS) is a legal document which crime victims submit to court as part of the sentencing stage, informing the court about the harms they have suffered.  VIS enhances victims’ sense of procedural justice, voice, and inclusion in the process, as well as their overall wellbeing.  At the same time, their use raises concern about defendants’ due process rights. 
The Article argues that VIS make a novel contribution to the criminal proceeding, beyond their formal goals of providing information to the court about the impact of the crime on its victims.  Using a thematic analysis of 25 VISs which were submitted to Israeli criminal courts by victims of sexual, physical and property offenses as well as by relatives of homicide victims, the Article identifies four types of functions that VISs play for the victims who submit them.  VISs were used to portray the offense as a life-changing event; to describe the hardships of the criminal justice process; to transform the victim into 'more than just a name’; and to deliver a message or request.  By bringing this content to the courtroom, the statements expanded the legal discourse and created an integrated therapeutic-legal discourse, which was accepted and formally acknowledged by the justice system.  The openness of the legal system to accept and acknowledge exogenous content that is not required by law, even if indirectly, suggests a need to rethink the social function of the court for victims and communities.  It is possible that the courts may be more inclusive of and more attentive to non-legal narratives, emotional expression, and interpersonal connectedness than it is generally believed.

May 31, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

Monday, May 30, 2022

Highlighting continuing struggles with implementing the FIRST STEP Act's earned time credits

In this post from the start of this year, I flagged Walter Pavlo's discussion of nettlesome issues surrounding implementation of various parts of the FIRST STEP Act. Issues raised in that prior piece are reviewed anew in this new Palvo piece in Forbes headlined "First Step Act Inaction Keeps Federal Inmates In Prison." Here is how the piece gets started:

The First Step Act (FSA), which among other things, provided federal prisoners a way to effectively lower their prison terms through participation in programs and productive activities. The law, signed by President Donald Trump in December 2018, meant that some prisoners could reduce their prison terms by up to one year. However, the rollout of the program has resulted in men and women remaining in prison well beyond what their release dates would be under FSA.

When the Federal Register published the final FSA rule on January 19, 2022, it also included comments from congressmen who expressed the need for clarity of the law. One such comment was “The Bureau does not have the resources to implement the FSA Time Credits program appropriately.” Over four months since that statement, it has proven to be true.

According to insiders at the BOP, prisoners and former executive staff with connections to the current state of the BOP as it relates to the FSA, there is “mass confusion at every institution,” and that the Designation and Sentence Computation Center, the entity ultimately responsible for calculating sentence duration, is backed up and the programming is not in place for FSA. The result is that thousands of prisoners are incarcerated beyond their legal release date.

May 30, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Sunday, May 29, 2022

"A Lost Chapter in Death Penalty History: Furman v. Georgia, Albert Camus, and the Normative Challenge to Capital Punishment"

Though we are still a full month away from the exact date marking the 50th anniversary of the Supreme Court's landmark Eighth Amendment ruling in Furman v. Georgia, this new article on SSRN (which shares the title of this post) seem like a fitting way to start reflecting on capital punishment.  The article is authored by Mugambi Jouet, and here is its abstract:

Overlooked historical sources call into question the standard narrative that the Supreme Court’s landmark decision in Furman v. Georgia (1972), which temporarily abolished the death penalty, reflected a challenge to its arbitrary, capricious, and discriminatory application.  This Article examines materials that scholars have neglected, including the main brief in Aikens v. California, a companion case to Furman that presented the fundamental constitutional claim: the death penalty is inherently cruel and unusual.

Aikens was largely forgotten to history after it became moot, leaving Furman as the main case before the Court.  The Aikens brief’s humanistic claims and rhetoric are at odds with the widespread idea that Furman was a case about administrative or procedural problems with capital punishment.  This is truer of the Furman decision itself than of the way the case was litigated.  Depicting any execution as “barbarity,” as an “atavistic horror,” the Aikens brief marshaled an argument that has garnered much less traction in modern America than Europe: the death penalty is an affront to human dignity.  Yet the transatlantic divergence in framing abolitionism was not always as pronounced as it came to be in Furman’s aftermath.  Since the Enlightenment, American and European abolitionists had long emphasized normative arguments against capital punishment, thereby revealing why they played a central role in Aikens-Furman.

Strikingly, the Aikens brief insistently quoted a European figure whose role in this seminal Supreme Court case has received no attention: Albert Camus.  “Reflections on the Guillotine,” Camus’s denunciation of the death penalty’s inhumanity, is among the sources prominently featured in the Aikens-Furman briefs.  The architect of this strategy was Anthony Amsterdam, a famed litigator.  Subsequent generations of American abolitionists have placed less weight on humanistic objections to executions, instead stressing procedural and administrative claims.  This shift has obscured how a lost chapter in death penalty history unfolded.

These events are key to understanding the evolution of capital punishment, from its resurgence in the late twentieth century to its present decline as the number of executions nears record lows.  On Furman’s fiftieth anniversary, the Article offers another window into the past as scholars anticipate a future constitutional challenge to the death penalty in one or two generations. 

May 29, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)

Saturday, May 28, 2022

Supreme Court of Canada declares all LWOP sentences unconstitutional as "degrading in nature and thus intrinsically incompatible with human dignity"

As this press article details, "Canada’s supreme court has ruled that life sentences without the chance of parole are both “cruel” and unconstitutional, in a landmark decision that could give more than dozen mass killers who committed “inherently despicable acts” the faint hope of release in the future." Here is more from the press piece about Friday's ruling:

The court unanimously determined on Friday that sentencing killers to lengthy prison terms with little hope of freedom risked bringing the “administration of justice into disrepute”.

The closely watched case centred on the fate of Alexandre Bissonnette, the gunman who killed six worshippers at a mosque in Québec City in 2017, but the court’s decision will possibly have consequences for at least 18 others who are serving multiple life sentences.

In Canada, those serving a life sentence for first-degree murder are eligible to apply for parole at 25 years. But in 2011, the Conservative government gave justices the ability to hand out consecutive sentences, rather than concurrent blocks of 25 years.

In the case of Bissonnette, the 27-year-old pleaded guilty to six counts of first-degree murder and six counts of attempted murder in 2018, after he entered the Islamic Cultural Centre in Québec City with a semi-automatic rifle and pistol, opening fire on worshippers. The prime minister, Justin Trudeau, called the act a “terrorist attack”.

Drawing on the 2011 provision, Crown prosecutors asked a judge to impose a parole ineligibility period of 150 years, the harshest sentence ever handed down in Canada since the abolition of the death penalty. Prosecutors said Bissonnette should serve 25 consecutive years for each of the six people he murdered.

The sentencing judge instead ruled Bissonnette would have the chance of parole at 40 years. That decision was overturned in 2020 by Quebec’s court of appeal, which ruled unanimously that Bissonnette should have a chance of parole at 25 years. Bissonnette, now 32, will be eligible to apply for parole in his 50s.

The ruling of the court applies retroactively to 2011 and could affect at least 18 others whose parole eligibility exceeds 25 years, even those who have exhausted their appeals. In some cases, people have been handed a 75-year wait period before being able to apply for parole....

Acknowledging the heinous crimes of those serving multiple life sentences, Chief Justice Richard Wagner wrote that the ruling “must not be seen as devaluing the life” of innocent victims. “This appeal is not about the value of each human life, but rather about the limits on the state’s power to punish offenders, which, in a society founded on the rule of law, must be exercised in a manner consistent with the Constitution.”

The full ruling in R. v. Bissonnette, 2022 SCC 23 (Canada May 27, 2022), is available here.  Here is just one of many notable passages: 

The objectives of denunciation and deterrence are not better served by the imposition of excessive sentences. Beyond a certain threshold, these objectives lose all of their functional value, especially when the sentence far exceeds human life expectancy.  The imposition of excessive sentences that fulfil no function does nothing more than bring the administration of justice into disrepute and undermine public confidence in the rationality and fairness of the criminal justice system.  A punishment that can never be carried out is contrary to the fundamental values of Canadian society.

The effects of a sentence of imprisonment for life without a realistic possibility of parole support the conclusion that it is degrading in nature and thus intrinsically incompatible with human dignity.  Offenders who have no realistic possibility of parole are deprived of any incentive to reform, and the psychological consequences flowing from this sentence are in some respects comparable to those experienced by inmates on death row, since only death will end their incarceration. For offenders who are sentenced to imprisonment for life without a realistic possibility of parole, the feeling of leading a monotonous, futile existence in isolation from their loved ones and from the outside world is very hard to tolerate, so much so that some prefer to put an end to their lives rather than die slowly and endure suffering that seems endless to them.  Furthermore, in international and comparative law, a sentence that deprives offenders of any possibility of being released is generally considered to be incompatible with human dignity.

To review, then, in Canada it is unconstitutional to impose functional life without parole sentences on even mass murderers, wheres in the United States many thousands of persons (and mostly persons of color) have been sentenced in recent decades to LWOP terms for federal drug offenses.

May 28, 2022 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sentencing around the world, Who Sentences | Permalink | Comments (2)

Friday, May 27, 2022

Helping to spread a federal sentencing "message" for a "corruption superspreader"

I always find it is interesting when judges in relatively low-profile cases talk about "sending a message" at sentencing, and I suppose I should try to make a habit of helping judges spread the messages they hope to be sending.  To that end, here I will flag this recent sentencing story out of Chicago headlined "‘You were a corruption superspreader’: Judge sentences ex-state Rep. Luis Arroyo to 57 months in prison in bribery case involving sweepstakes machine bill."  Here are excerpts:

Saying he needed to send a message on the cost of public corruption, a federal judge on Wednesday sentenced former state Rep. Luis Arroyo to nearly five years in federal prison for trying to bribe a state senator to help with legislation expanding the shadowy world of sweepstakes gambling machines.

Rejecting a defense plea for probation, U.S. District Judge Steven Seeger railed against Arroyo’s “dirty” conduct, saying in a lengthy speech that he sold out an already corruption-weary public and committed a “frontal assault on the very idea of representative government.”

“You were a corruption superspreader,” Seeger said near the end of a nearly four-hour hearing at the Dirksen U.S. Courthouse.  “The public did not get what they deserved.  They voted for an honest representative, and what they got was a corrupt politician.”

Arroyo’s lawyers had maintained that a prison sentence for the longtime Chicago Democrat would do nothing to stop the state’s seemingly intractable corruption problem and would be akin to “draining Lake Michigan with a spoon.”

But the judge took particular umbrage with attempts to downplay what Arroyo did, and at one point asked defense attorney Michael Gillespie specifically about the spoon comment.  “What does that mean?” the judge asked.  ”What am I supposed to do with that?”  As Gillespie fumbled for an answer, Seeger interrupted in a stern voice: “Maybe judges need a bigger spoon.”

Arroyo, 67, entered a blind guilty plea in November to one count of honest services fraud, a move that came without an agreement with prosecutors on what sentencing recommendations should be made to the judge.  The 57-month term imposed by Seeger was above the four years in prison recommended by prosecutors on Wednesday....

Arroyo resigned his seat shortly after he was arrested in 2019 on the bribery charges. A superseding indictment later added new wire and mail fraud charges against Arroyo and also charged James T. Weiss with bribery, wire fraud, mail fraud and lying to the FBI....

The case centers on the largely uncharted world of sweepstakes machines, sometimes called “gray machines,” for which Arroyo was moonlighting as a lobbyist.  The machines allow customers to put in money, receive a coupon to redeem for merchandise online and then play electronic games like slot machines.... According to the 15-page indictment, Weiss paid bribes to Arroyo beginning in November 2018 in exchange for Arroyo’s promotion of legislation beneficial to Weiss’ company, Collage LLC, which specialized in the sweepstakes machines....

In his remarks, Seeger said it was clear that Arroyo was a devoted family man and “a pillar of his community,” but chastised him repeatedly for trying to downplay the severity of his corrupt acts. The judge also noted that while there was no evidence of any other crimes committed in the wiretapped conversations, Arroyo certainly knew the language of corruption and seemed to be “in familiar territory.”

“I need to make sure that the message gets out that public corruption isn’t worth it,” Seeger said. “For whatever reason, that message isn’t getting through.”

May 27, 2022 in Booker in district courts, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Thursday, May 26, 2022

Air Force Court of Criminal Appeals decides court martialed prisoner cannot seek compassionate release in military courts

A helpful reader altered me to an interesting ruling this week from the US Air Force Court of Criminal Appeals in In re Kawai, Misc. Dkt. No. 2022-02 (AFCCA May 25, 2022) (available here). Here is how the opinion gets started:

On 29 January 2022, Petitioner requested this court grant him extraordinary relief in what he styled as a “Motion for Compassionate Release and Reduction in Sentence,” pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), and the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018).  This court received, by mail, Petitioner’s request on 2 March 2022, and docketed his petition on 11 March 2022; the Court did not order briefs by the Government or Petitioner in response.  We conclude we do not have jurisdiction to adjudicate Petitioner’s request and deny the petition.

Here is a key portion of the ruling:

The problem for Petitioner is the review of a motion for compassionate release is jurisdictional. “A motion to file for compassionate release can only be brought before the sentencing judge.” Ferguson v. United States, No. 1:22-cv10542, 2022 U.S. Dist. LEXIS 50986, at *2 (E.D. Mich. 21 Mar. 2022).  Yet, “[g]eneral courts-martial are ad hoc proceedings which dissolve after the purpose for which they were convened has been resolved.” Witham v. United States, 355 F.3d. 501, 505 (6th Cir. 2004).  Because Petitioner’s court was dissolved after his case, and because his case is final under Article 76, UCMJ, there is no sentencing court within the military service courts in which Petitioner may bring a motion under 18 U.S.C. § 3582(c)(1)(A)(i).

However, Congress has charged federal district courts with exercising jurisdiction over habeas corpus petitioners who are imprisoned as a result of court-martial convictions. See Burns v. Wilson, 346 U.S. 137, 139 (1953); Chapman, 75 M.J. at 601; see also Gilliam v. Bureau of Prisons, No. 99-1222, 2000 U.S. App. LEXIS 3684, at *3 (8th Cir. 10 Mar. 2000) (unpub. op.).  Federal district court is also the proper venue for Petitioner’s motion. See Owens, 2020 U.S. Dist. LEXIS 61460, at *2.

May 26, 2022 in FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Spotlighting the messiness of AEDPA more than a quarter century later

The Supreme Court's ruling earlier this week on the limits of federal habeas review (basic here, commentary here) has folks talking a bit more about the legal mess that is AEDPA.  The folks at The Marshall Project now have this new review under this full headline: "The 1990s Law That Keeps People in Prison on Technicalities: How the Supreme Court expanded the most important law you’ve never heard of."  Here are some excerpts (with links from original):

Earlier this week, the Supreme Court told Arizona prisoner Barry Jones that even though four federal judges agreed he may well be innocent of the 1994 murder that sent him to death row, the high court couldn’t overturn his conviction or stop Arizona from executing him. (Jones had argued he was hindered by poor lawyering at multiple stages of his case.)

In a 6-3 decision on Monday, in a case titled Shinn v. Martinez Ramirez, the conservative justices said they couldn’t do anything about it, because of one wonky law passed by Congress in 1996 and signed by then-President Bill Clinton. Misleadingly called the Antiterrorism and Effective Death Penalty Act, the law was created during the tough-on-crime ‘90s, to keep violent prisoners from getting released on what politicians called technicalities. But now, experts say the law actually keeps innocent people in prison on technicalities — and most of the cases it affects have nothing to do with terrorism or capital punishment.

In these cases, the importance of finality outweighs any claims the prisoners might make, the court’s conservative majority said. “Serial relitigation of final convictions undermines the finality that ‘is essential to both the retributive and deterrent functions of criminal law,’” Justice Clarence Thomas wrote.

While many judges and prosecutors complain about the length of the appeals process, these days there are few defenders of the 1996 law — other than state attorneys general who prosecute appeals in federal courts. “Lots of people are stuck,” said Christina Mathieson, director of the National Habeas Institute, which advocates for prisoners in these cases. “The gates to the federal courts are closed.”

Here are five things you should know about the law known as AEDPA (“ed-puh”):

  1. It was created after the Oklahoma City bombing....

  2. The law makes it harder for many prisoners to win appeals....

  3. The law was intended to speed up death row appeals, but failed....

  4. It doesn’t just affect terrorism and death penalty cases....

  5. It makes federal courts less powerful....

May 26, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, May 25, 2022

New Executive Order from Prez Biden, though mostly on policing, includes some sentencing and corrections matters

This new "FACT SHEET" from the White House, titled "President Biden to Sign Historic Executive Order to Advance Effective, Accountable Policing and Strengthen Public Safety," provides an overview of what the latest presidential EO will cover in the criminal justice space. Though focused mostly on policing issues, I was intrigued to see this passage at the very end of the fact sheet:

Reforms Our Broader Criminal Justice System

Directs a government-wide strategic plan to propose interventions to reform our criminal justice system.  A new committee with representatives from agencies across the federal government will produce a strategic plan that advances front-end diversion, alternatives to incarceration, rehabilitation, and reentry.  The Attorney General will also publish an annual report on resources available to support the needs of persons on probation or supervised release.

Improves conditions of confinement. The Attorney General, in consultation with the Secretary of Health and Human Services, will update procedures as necessary to increase mitigation of Covid-19 in correctional facilities; expand the publication and sharing of vaccination, testing, infection, and fatality data disaggregated by race, ethnicity, age, sex, disability, and facility; and to identify alternatives to facility-wide lockdowns and restrictive housing to reduce the risk of transmission.  The Attorney General will also report to the President on steps to limit the use of restrictive housing and improve conditions of confinement, including with respect to the incarceration of women, juveniles, and persons in recovery.

Requires full implementation of the FIRST STEP Act. The Attorney General will update DOJ policy as necessary to fully implement the FIRST STEP Act and to report annually on implementation metrics, including an assessment of any disparate impact of the PATTERN risk assessment tool and steps to correct any such disparities.

UPDATE: Here is the full detailed "Executive Order on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety" from the Biden White House.

May 25, 2022 in Criminal justice in the Biden Administration, Criminal Sentences Alternatives, FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (4)

Some sharp headlines in response to sharp SCOTUS habeas limits

The US Supreme Court's ruling earlier this week in Shinn v. Martinez Ramirez, No. 20-1009 (S. Ct. May 23, 2022) (available here), provides still further evidence that a significant majority of Justices are quite eager to limit and cut back on federal habeas review of state convictions.  That reality surely helps explain why some of the early commentary about the ruling, at least as judged by headlines, is notably sharp.  Here are just some examples: 

From The Daily Beast, "The Supreme Court Just Said That Evidence of Innocence Is Not Enough"

From HuffPost, "The Supreme Court Just Made It More Likely Innocent People Will Be Executed"

From The New Republic, "The Supreme Court Decides Death Row Prisoners Don’t Deserve Competent Lawyers"

From Salon, "Legal experts: Clarence Thomas’ “radical” ruling forces innocent people to stay in prison"

From Vox, "The Supreme Court just condemned a man to die despite strong evidence he’s innocent"

Though I am troubled by where the Supreme Court seems to be heading with its recent habeas jurisprudence, some of these headlines strike me as a bit too sharp.  For somewhat more measured accounts, here are two other notable blog perspectives on Martinez Ramirez:

From Crime & Consequences, "Taking Statutes Seriously"

From SCOTUSblog, "Conservative majority hollows out precedent on ineffective-counsel claims in federal court"

May 25, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, May 24, 2022

With Senate leader now pushing for EQUAL Act, can crack sentencing reform finally get to finish line?

The question in the title of this post is prompted by this New York Daily News article headlined "Schumer calls for end to crack cocaine sentencing disparity: ‘Cocaine is cocaine’."  Here are excerpts:

Senate Majority Leader Chuck Schumer on Monday called on lawmakers to end a sentencing disparity between crack and powder cocaine that has had a disproportionate effect on Black Americans. “We have a moment to balance the scales of justice,” the New York Democrat said at a news conference outside the Thurgood Marshall U.S. Courthouse in lower Manhattan. “It’s common sense: Cocaine is cocaine, and the sentencing should be equal.”

In September, the House overwhelmingly passed legislation to end a sentencing formula that uses an 18-to-1 ratio in treating equal amounts of crack and powder cocaine. The bipartisan vote was 361 to 66. Democrats and Republicans embraced the chance to correct what activists, researchers and law enforcement view as a historical wrong. Pricey powder cocaine has long been seen as the province of the wealthy, while crack is cheaper and generally associated with poorer Americans....

But the bill, called the Eliminating a Quantifiably Unjust Application of the Law Act, has not yet landed on the floor of the Senate this spring, with both parties moving cautiously ahead of the pivotal midterm elections in November.

Schumer, who declined to describe a timeline for passage, appeared to be embarking upon a pressure campaign meant to clear space for the legislation’s approval without a fierce fight on the floor. In the Senate, Sens. Rob Portman (R-Ohio) and Cory Booker (D-N.J.) are sponsoring the legislation to end the sentencing disparities. “We’re working together — Sens. Booker, Portman and myself — figuring out the right timeframe and the right way to go,” Schumer told reporters Monday. “We want to get this done as soon as we can.”

Booker’s office said Monday that the legislation has picked up 21 cosponsors, including 11 Republicans, since it was introduced in the Senate in January. Booker said in a statement he was “pleased that Leader Schumer has called for a vote on the bill.” “For decades, our nation’s drug laws have been overly punitive and fraught with racial disparities, but perhaps no law has been as fundamentally flawed as the crack and powder cocaine sentencing disparity,” Booker said in the statement. “I look forward to passing the EQUAL Act as soon as possible.”

Beginning in 1986, mandatory minimum sentences for crack cocaine and powder cocaine crimes were formulated using a staggering 100-to-1 ratio. The Fair Sentencing Act of 2010, signed into law by President Barack Obama, changed the ratio to 18 to 1. “Some of our colleagues would say, ‘Well, I’ll lower it, but I won’t make it equal,’” said Schumer, who at one point held up sweetener packets as props during the news conference. “100 to 1 was horrible, but 18 to 1 was just as horrible, which it is now. 1 to 1 is fair.”

Senator Schumer is wrong to assert current crack sentencing after the Fair Sentencing Act is "just as horrible" as it was under the 100-1 ratio.  It is a bit better, but still not actually fair.  The EQUAL Act finally presents the prospect of getting to the 1-1 sentencing ratio that the US Sentencing Commission urged way back in 1995.  More than a quarter of a century later, I hope Senator Schumer is right about the fact that now is finally, finally "a moment to balance the scales of justice."

A few of many prior posts on the EQUAL Act:

May 24, 2022 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Monday, May 23, 2022

Supreme Court decides, via usual 6-3 vote, to read AEDPA restrictively to limit federal habeas efforts

The Supreme Court this morning released two opinion, one of which dealt with federal habeas process in a capital case.  The ruling was the product of a 6-3 vote in Shinn v. Martinez Ramirez, No. 20-1009 (S. Ct. May 23, 2022) (available here), with the opinion for the Court authored by Justice Thomas and the dissent authored by Justice Sotomayor.  Here is how the opinion for the Court gets started:

A federal habeas court generally may consider a state prisoner’s federal claim only if he has first presented that claim to the state court in accordance with state procedures.  When the prisoner has failed to do so, and the state court would dismiss the claim on that basis, the claim is “procedurally defaulted.”  To overcome procedural default, the prisoner must demonstrate “cause” to excuse the procedural defect and “actual prejudice” if the federal court were to decline to hear his claim. Coleman v. Thompson, 501 U.S. 722, 750 (1991). In Martinez v. Ryan, 566 U.S. 1 (2012), this Court explained that ineffective assistance of postconviction counsel is “cause” to forgive procedural default of an ineffective-assistance-of-trial-counsel claim, but only if the State required the prisoner to raise that claim for the first time during state postconviction proceedings.

Often, a prisoner with a defaulted claim will ask a federal habeas court not only to consider his claim but also to permit him to introduce new evidence to support it.  Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the standard to expand the state-court record is a stringent one.  If a prisoner has “failed to develop the factual basis of a claim in State court proceedings,” a federal court “shall not hold an evidentiary hearing on the claim” unless the prisoner satisfies one of two narrow exceptions, see 28 U.S.C. §2254(e)(2)(A), and demonstrates that the new evidence will establish his innocence “by clear and convincing evidence,” §2254(e)(2)(B).  In all but these extraordinary cases, AEDPA “bars evidentiary hearings in federal habeas proceedings initiated by state prisoners.” McQuiggin v. Perkins, 569 U.S. 383, 395 (2013).

The question presented is whether the equitable rule announced in Martinez permits a federal court to dispense with §2254(e)(2)’s narrow limits because a prisoner’s state postconviction counsel negligently failed to develop the state-court record.  We conclude that it does not.

Here is how the dissent gets started:

The Sixth Amendment guarantees criminal defendants the right to the effective assistance of counsel at trial.  This Court has recognized that right as “a bedrock principle” that constitutes the very “foundation for our adversary system” of criminal justice.  Martinez v. Ryan, 566 U.S. 1, 12 (2012).  Today, however, the Court hamstrings the federal courts’ authority to safeguard that right. The Court’s decision will leave many people who were convicted in violation of the Sixth Amendment to face incarceration or even execution without any meaningful chance to vindicate their right to counsel.

In reaching its decision, the Court all but overrules two recent precedents that recognized a critical exception to the general rule that federal courts may not consider claims on habeas review that were not raised in state court. Just 10 years ago, the Court held that a federal court may consider a habeas petitioner’s substantial claim of ineffective assistance of trial counsel (a “trial-ineffectiveness” claim), even if not presented in state court, if the State barred the petitioner from asserting that claim until state postconviction proceedings, and the petitioner’s counsel in those proceedings was also ineffective. See id., at 17; see also Trevino v. Thaler, 569 U.S. 413, 429 (2013).  Martinez and Trevino establish that such a petitioner is not at fault for any failure to bring a trial-ineffectiveness claim in state court. Despite these precedents, the Court today holds that such a petitioner is nonetheless at fault for the ineffective assistance of postconviction counsel in developing the evidence of trial ineffectiveness in state court.  The Court instead holds that a petitioner in these circumstances, having received ineffective assistance of trial and postconviction counsel, is barred from developing such evidence in federal court.

This decision is perverse. It is illogical: It makes no sense to excuse a habeas petitioner’s counsel’s failure to raise a claim altogether because of ineffective assistance in postconviction proceedings, as Martinez and Trevino did, but to fault the same petitioner for that postconviction counsel’s failure to develop evidence in support of the trial-ineffectiveness claim. In so doing, the Court guts Martinez’s and Trevino’s core reasoning.  The Court also arrogates power from Congress: The Court’s analysis improperly reconfigures the balance Congress struck in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) between state interests and individual constitutional rights.

By the Court’s telling, its holding (however implausible) is compelled by statute.  Make no mistake.  Neither AEDPA nor this Court’s precedents require this result.  I respectfully dissent.

May 23, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Sunday, May 22, 2022

"Canceling Compassion: Nonretroactivity and the Narrowing of Postconviction Relief in Federal Courts"

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

In 2018, Congress passed the First Step Act, which opened the door for incarcerated individuals to apply directly to district courts for release or a sentence reduction by way of compassionate release.  A form of postconviction relief, certain federal courts have narrowed the scope of eligibility for compassionate release based on a restrictive reading of what are “extraordinary and compelling” reasons for relief.  Specifically, these courts hold that nonretroactive changes in sentencing law cannot constitute such “extraordinary and compelling” reasons as a matter of law.  This article explores the now-intractable circuit split that has emerged on this issue, critiques the underlying non-textual motivations that have guided certain courts, and proposes an immediate resolution by the Supreme Court.  Yet the deep disagreement amongst the courts, which has precluded relief based solely on an individual’s geographic location, raises a further question: should courts be the sole arbiter of compassionate release?

May 22, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, May 21, 2022

Register for "Looking Ahead: Learning from Past Commission Leadership"

In this prior post, I noted the great weekly panel series that has been running through the month of May titled "The Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond."  This series has been put together by the Center for Justice and Human Dignity, a nonprofit organization whose mission is explained here in terms of seeking  "to reduce prison incarceration in the United States while improving conditions for those imprisoned and working inside."

This panel series concludes this coming Tuesday, May 24, at 12noon ET with a fourth and final panel titled "Looking Ahead: Learning from Past Commission Leadership." The discussion among former heads of the US Sentencing Commission and judges is especially timely given Prez Biden's nomination of seven new people to the US Sentencing Commission just earlier this month.  Everyone can and should register to attend this session (and review the entire series) here.  The speakers for all the panels have been terrific, and here are the folks participating in this last panel:

I had the distinct pleasure of helping just a bit with this panel, and the opportunity to hear from former Chairs of the US Sentencing Commission should never be missed.

Prior related posts:

May 21, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Friday, May 20, 2022

Spotlighting the role of victims in advocating and advancing criminal justice refroms

This new Yahoo News article, headlined "Red states are enacting criminal justice reform at the urging of crime victims," is worth a full read. Here are excerpts from the lengthy piece:

In an effort to create the system of support he and others never had, [shooting victim Aswad] Thomas pivoted to a career where he could help other crime victims heal by joining Alliance for Safety and Justice (ASJ), a multistate public policy organization that promotes legislation on behalf of crime victims. The organization advocates for trauma centers in communities, less complicated probation laws and rehabilitation such as life skills programs and employment opportunities for the formerly incarcerated.

Since its founding in 2016, ASJ has won more than 50 campaigns tied directly to support for crime victims, including key wins in Republican-majority states that have been historically resistant to criminal justice reform....

These successes are a big reason why the CEO of ASJ, Jay Jordan, who spent eight years in prison for a robbery he committed in his teens, grimaces at the mention of criminal justice reform, instead calling it public safety — an important distinction that he says has garnered bipartisan support through the years.

“People often say, ‘Let's get tough on crime,’” Jordan told Yahoo News. “We say, ‘Let's get tough on safety.’ … We don’t see [states] as Republican or Democratic states. We see them as states where people live where people want to be safe.”...

In Ohio, India Brown, whose partner was murdered, was initially blocked from accessing victims’ compensation funds because of a previous teenage felony. Brown persuaded Gov. Mike DeWine and Attorney General Dave Yost, two Republicans, to fund trauma recovery centers and remove barriers to victims’ compensation. This would ensure that families have emotional support and financial stability. “I wrestled with unspeakable grief,” Brown wrote in an op-ed for the Columbus Dispatch.

And in Texas last summer, veteran Melvin Halsey, along with other crime victims, helped advocate for reform of the state’s probation system. Tens of thousands of Texans will no longer be sent back to prison for technical violations as a result. “Black people make up 13% of the population in Texas, but we’re 33% of the state’s incarcerated population,” Halsey wrote in an op-ed for the Austin American-Statesman last year. “A system that focuses on helping people rehabilitate ourselves rather than doling out harsh punishments is not only the right thing to do, it makes communities safer and saves Texas money too.”

May 20, 2022 in Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (3)

Thursday, May 19, 2022

Notable new research report explores role of federal defense counsel type in case outcomes

I just came across this interesting new "research report" from the Urban Institute titled "Counsel Type in Federal Criminal Court Cases, 2015-18." The report was produced for the Bureau of Justice Statistics, and here is its abstract:

This paper examines the role that the type of defense counsel plays in federal justice system outcomes.  We begin with a background on federal indigent defense systems and a review of the prior research examining the impact of counsel type on sentencing.  We then describe the study and present our descriptive results, which explore the frequency and variation in the use of each type of defense counsel (public defenders, assigned counsel, and private attorneys) and other key variables (disposition, incarceration decision, sentence length, year, district, case, and defendant characteristics).  Next, we model the outcomes of incarceration and sentence length to test whether type of counsel significantly impacts these decisions after controlling for legal and extra-legal factors.  Lastly, the results are summarized and situated in a broader understanding of the federal justice system.

Here is a key paragraph from the report's conclusion:

Our study found that counsel type does vary across several key variables.  For example, defendants who utilize federal public defenders had higher rates of accepting a plea deal than those who were provided a CJA panel attorney or who retained a private attorney.  However, the findings from our regression models indicate that individuals represented by CJA panel attorneys and private counsel have 18-25% greater odds of being sent to prison once convicted than those represented by a federal public defender, controlling for numerous legal and extra-legal factors.  Likewise, individuals represented by private and CJA panel attorneys received 4-8% longer sentences than those who used a public defender.  Taken together, these findings suggest that federal public defenders are an important part of the federal courtroom workgroup with specific expertise in federal criminal cases and more familiarity with the judges and prosecutors.  As a result, federal public defenders may be more likely to encourage their clients to take plea deals but may also secure their clients favorable sentencing outcomes.

I find this research so very interesting for so many reasons.  Notably, one of my early academic articles written more than two decades ago and before the guidelines became advisory, titled "From Lawlessness to Too Much Law? Exploring the Risk of Disparity from Differences in Defense Counsel Under Guidelines Sentencing," focused on my concerns about the impact that different defense counsel can have on sentencing outcomes.

May 19, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Wednesday, May 18, 2022

House Judiciary Subcommittee to hold oversight hearing on clemency and office of Pardon Attorney

As detailed at this official webpage, the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security is holding a hearing tomorrow titled "Oversight Hearing on Clemency and the Office of the Pardon Attorney."  Interestingly, as detailed via this witness list, Representative Ayanna Pressley will be the first witness.  This press release from Rep. Pressley's office may provide a preview of what she plans to talk about:

Today, Congresswoman Ayanna Pressley (MA-07), along with Congresswoman Mary Gay Scanlon (PA-05), Congressman David Joyce (OH-14), and Congressman Kelly Armstrong (ND-AL) urged Pardon Attorney Elizabeth Oyer to release disaggregated demographic data on the more than 17,000 pending clemency applications to better understand the current broken clemency process and address its impacts on constituents and communities....

In their letter, the lawmakers asked Pardon Attorney Oyer to provide a report by June 7, 2022 on all pending clemency applications detailing applicant demographic data, month and year of application submission, representation by an attorney, type of clemency request, type of relief sought, type of offense(s), and office currently reviewing application....

In December, Rep. Pressley, along with Representatives Cori Bush (MO-01), Hakeem Jeffries (NY-08) and grassroots advocates, unveiled the Fair and Independent Experts in Clemency (FIX Clemency) Act, historic legislation to transform our nation’s broken clemency system and address the mass incarceration crisis. 

This new Bloomberg piece, headlined "Lawmakers Press DOJ on Backlog of 17,000 Clemency Petitions," provides some context for this letter:

Some advocates for clemency say it can be used to address racial inequity in the criminal justice system. Black inmates account for 38.3% of the federal prison population, according to the Federal Bureau of Prisons, despite making up only 13% of the US population.

Between 2012 and 2016, Black men received 19.1% longer sentences for the same federal crimes as White men, according to a 2017 US Sentencing Commission report. Another 2017 report from National Registration of Exonerations found Black people are more likely to be wrongfully convicted than White people and receive longer sentences.

“Every application represents a person, a family, and a community,” the lawmakers wrote in the letter. “And every delayed response represents a miscarriage of justice, a dysfunctional process, and a policy failure in desperate need of repair.”

I suspect Rep. Pressley's testimony to start this oversight hearing could prove to be real interesting.  And, following here, the hearing schedule sets out this all-start set of witnesses:

UPDATE:  As of the morning of the hearing, one can find the written testimony of all the scheduled witnesses at this official House Judiciary webpage.  The testimony makes for interesting reads, though the professional history of the witnesses make what they have to say generally predictable.

May 18, 2022 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, May 17, 2022

"Unequal Treatment: (In)compassionate Release from Federal Prison in the Context of the COVID-19 Pandemic and Vaccine"

The title of this post is the title of this new piece now available via SSRN authored by Mariah Haley. Here is its abstract:

COVID-19, the disease caused by SARS-CoV-2, has wreaked havoc globally since it was first discovered in December 2019.  In the United States, many federal prisons experienced outbreaks of the virus, leading to both severe illness and death.  Almost as soon as the pandemic began in the United States, people in prison — especially those with preexisting conditions — turned to the statutory mechanism known as “compassionate release” to request early release from prison based on the “extraordinary and compelling” nature of the pandemic.

This Note examines how federal courts have considered compassionate release requests during the pandemic.  The Note further explores the disparate outcomes resulting from the vast judicial discretion within the compassionate release space.  While no two compassionate release cases are the same, with cases very fact-intensive, this Note argues that the current system results in inequitable geographical-based outcomes.  In concluding, this Note calls on the United States Sentencing Commission to offer guidance to federal courts on how to approach compassionate release requests in the context of the First Step Act and the ongoing COVID-19 pandemic.

May 17, 2022 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, May 16, 2022

Will feds consider a capital prosecution of the racist Buffalo mass murderer?

A little less than seven years ago, I asked in this post whether the state of South Carolina or the feds (or both) would capitally prosecute racist mass murderer Dylann Storm Roof after he slaughtered nine people at a historic black church in Charleston.  The feds decided to take the lead pursuing and securing a federal death sentence for Roof, which he is currently appealing to the Supreme Court.

Sadly, this past weekend saw another horrific racist mass murder in Buffalo.  But this time, because New York does not have the death penalty, only the feds are in a position to pursue a capital prosecution.  This local article, headlined "Many paths possible in prosecution of man accused of slaying 10 at Tops," provides this account of the legal lay of the land:

The Erie County District Attorney's Office and federal prosecutors each will have the chance to prosecute the man accused of slaying 10 people and wounding three others in Saturday's hate-inspired attack in a predominantly Black neighborhood in Buffalo.

But there is no definitive answer yet on precisely what that process will look like. Payton S. Gendron, 18, already faces a state charge of first-degree murder for the massacre at the Tops Markets on Jefferson Avenue. Federal authorities have said they are investigating the mass killing "both as a hate crime and racially motivated violent extremism."

While New York State has no death penalty, the federal government does. A decision by federal prosecutors on whether to seek the death penalty is likely months away, according to veteran area defense attorneys.

Gendron can simultaneously face charges in both state and federal court, or one case can proceed before the other. Being charged in both state and federal courts would not violate the constitutional prohibition on "double jeopardy" because both levels of authority have jurisdiction at the same time, said Thomas J. Eoannou, a defense attorney who is not involved in representing Gendron. "The legal process will be very involved," Eoannou said, even though the evidence "appears, at this point, to be overwhelming."

If convicted of first-degree murder in state court, the maximum sentence Gendron faces is life in prison with no possibility of parole.... Gendron currently faces a murder count that encompasses all 10 victims who were killed, and county prosecutors are still evaluating potential options for what he may be charged with, the district attorney said....

It will be "fairly easy" for federal prosecutors to charge Gendron with a hate crime, based on the contents of his racist diatribe and what was written on the gun he used, defense attorney Paul J. Cambria Jr. said....

Some attorneys, including Eoannou and Joseph J. Terranova, said they expect the federal prosecution to happen first. A recent case similar to what happened here, Eoannou said, is that of Dylann Roof, who killed nine people at an historically Black church in Charleston, S.C., in 2015. Roof was first prosecuted federally and received the death penalty. Then he pleaded guilty in state court.

The decision on whether to seek the death penalty would come from U.S. Department of Justice officials in Washington, D.C., and a federal jury's decision to impose the death penalty would have to be unanimous, Eoannou said.

May 16, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

SCOTUS finally grants cert to clarify paths of federal collateral review based on 2241 (and savings clause of 2255)

The Supreme Court this morning issued an order list with lots of cert denials, but one cert grant that ought to interest sentencing fans.  Specifically, the Justices took up Jones v. Hendrix, No. 21-847, which concern the availability of collateral review by federal prisoners in federal courts.  Here is how SCOTUSblog briefly describes the issue in this case:

Whether federal inmates who did not — because established circuit precedent stood firmly against them — challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under 28 U.S.C § 2241 after the Supreme Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.

A review of the cert petition shows that Marcus DeAngelo Jones was sentenced to over 27 years in federal prison on gun charges back in 2000 and now wants to be able to press a claim based on Rehaif. Here is how this petition sets forth the question presented:

Under 28 U.S.C. § 2255, federal inmates can collaterally challenge their convictions on any ground cognizable on collateral review, with successive attacks limited to certain claims that indicate factual innocence or that rely on constitutional-law decisions made retroactive by this Court. 28 U.S.C. § 2255(h).  28 U.S.C. § 2255(e), however, also allows inmates to collaterally challenge their convictions outside this process through a traditional habeas action under 28 U.S.C. § 2241 whenever it “appears that the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of [their] detention.”

The question presented is whether federal inmates who did not — because established circuit precedent stood firmly against them — challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under § 2241 after this Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.

The cert petition goes on to note that federal courts and commentators have been urging SCOTUS to take up this issue for many years because of the deep split in circuit jurisprudence.

May 16, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sunday, May 15, 2022

"The Prosecutor Lobby"

The title of this post is the title of this new article on SSRN authored by Carissa Byrne Hessick, Ronald Wright and Jessica Pishko. Here is its abstract:

Prosecutors shape the use of the criminal law at many points during criminal proceedings, but there is also an earlier point in the process where prosecutors have influence: during the legislative process.  The conventional wisdom in the legal literature is that prosecutors are powerful and successful lobbyists who routinely support laws that make the criminal law more punitive and oppose criminal justice reform.  In this article, we test that narrative with an empirical assessment of prosecutor lobbying in America.  Using an original dataset of four years of legislative activity from all 50 states, we analyze how often prosecutors lobbied, the issues on which they lobbied, the positions they took, and how often they succeeded.

Our data tell a complex story of partial success for the prosecutor lobby.  Prosecutors are less successful than expected when lobbying against bills, and they are most successful when lobbying in favor of criminal justice reform.  By analyzing not only national data, but also data from each state, we document that prosecutorial success is correlated with Republican control of the state legislature.  We further conclude that perceived expertise does not drive prosecutorial lobbying success, and that legislatures in some contexts respond to the prosecutor lobby much as they would to any other self-interested rent-seeking lobbyists.

May 15, 2022 in Who Sentences | Permalink | Comments (2)

Register for "Sentencing Review and Reduction: Open Questions and Next Steps for the Commission"

In this prior post, I noted the great weekly panel series for the month of May titled "The Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond."  This series has been put together by the Center for Justice and Human Dignity, a nonprofit organization whose mission is explained here in terms of seeking  "to reduce prison incarceration in the United States while improving conditions for those imprisoned and working inside."

This panel series is running every Tuesdays in May at 12noon ET, which means the third panel is scheduled taking place this coming Tuesday, May 17th.  This panel is titled "Sentencing Review and Reduction: Open Questions and Next Steps for the Commission," and the discussion is especially timely given Prez Biden's nomination of seven people to the US Sentencing Commission just last week.  Everyone can and should register to attend next week's session and the entire series here.  The speakers for all the panels are terrific, and here are the folks participating in this latest panel:

Elizabeth Blackwood, Counsel & Director for the First Step Act Resource Center at the National Association of Criminal Defense Lawyer

Marisa Taney, Associate at Debevoise & Plimpton LLP, Holloway Project

I had the honor of helping to moderate the final panel, which airs next week, and it is titled Looking Ahead: Learning from Past Commission Leadership (Tuesday, May 24 12pm ET).

Prior related posts:

May 15, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, May 14, 2022

"Plea Bargaining’s Uncertainty Problem"

The title of this post is the title of this notable new article authored by Jeffrey Bellin available via SSRN. Here is its abstract:

While commentators roundly condemn plea bargaining, the criticism can be as muddled as the practice itself.  Critics’ primary target is the “trial penalty.”  But a differential between guilty-plea and trial sentences seems inevitable in any system that allows defendants to concede guilt.  And, as a new wave of “progressive prosecutors” is demonstrating, gaps between (unusually lenient) plea offers and long (potential) post-trial sentences are not only a strong incentive to plead guilty but also a powerful tool for reducing American penal severity.  Other critiques point to flaws that parallel those found in the broader system, overlooking that plea bargaining is typically a reflection of these flaws, not their source.

Finding the traditional critiques lacking, this Article highlights uncertainty as the core problem with plea bargaining.  It is easy to overlook uncertainty because analysis of plea bargains usually focuses on cases after they have been resolved.  Yet from the perspective of someone accused of a crime who is deciding whether to plead guilty, uncertainty is key.  And while some uncertainty is inevitable, in many scenarios, plea bargaining turns the defendant’s choice into something resembling a floor bet at a Las Vegas casino — a solemn spectacle of plea-bargaining roulette.

Identifying uncertainty as plea bargaining’s distinct contribution to American dysfunction is important for two reasons. First, it provides a realistic blueprint for improving the largely unregulated plea-bargaining process — this country’s dominant mechanism for resolving criminal cases.  Second, by suggesting that plea bargaining is not the primary source of other important problems, like excess severity or wrongful convictions, the analysis helps to redirect reform efforts targeting those important problems to areas where they may be more effective.

May 14, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Friday, May 13, 2022

Split Second Circuit panel debates required procedures for imposing more than a year when revoking supervised release

A helpful reader made sure I did not miss the interesting and lengthy Second Circuit panel discussion in US v. Peguero, No. 20-3798 (2d Cir. May 13, 2022) (available here).  The issue generating lengthy discussion in the case concerns the required procedures for revoking his term of supervised release.  Here is portion of the majority opinion: 

Although the issue was neither raised nor briefed by either party, the dissent asserts that Section 3583(e)(3), which allows a judge to revoke supervised release based upon a finding of new criminal conduct, is unconstitutional.  In particular, the dissent contends that a revocation hearing based on new conduct punishable by more than one year in prison violates a defendant’s right to indictment, right to confront witnesses, right to a jury trial, and right to remain free unless proven guilty beyond a reasonable doubt.  In support of this proposition, the dissent relies upon the “essential differences” between terms of probation or parole — which the dissent contends do not require such constitutional protections — and supervised release.  We respectfully disagree.

As an initial matter, the dissent’s proposed holding is contrary to our well-settled precedent, from which this panel is not free to deviate.  In addition to the requirement that we adhere to binding precedent, we conclude that the dissent’s approach is unsupported by the Constitution itself in light of the clear and direct connection between a supervised release term (and its accompanying conditions) and the original conviction and sentence.  Moreover, we are unpersuaded by the dissent’s contention that there are distinctive characteristics of a supervised release revocation proceeding, as compared to parole and probation, that would justify the differing constitutional protections the dissent proposes. Finally, we believe that the dissent’s proposed rule would have a drastic and devastating impact on the effective functioning of the criminal justice system.

The dissent by Judge Underhill starts this way:

Carlos Peguero was sentenced to twenty-eight months in federal prison for criminal conduct proscribed by the State of New York.  Peguero was not federally indicted for the felony crime of assault, was denied the right to confront witnesses against him, was never advised of his right to a jury trial, and was found “guilty” by a preponderance of the evidence.  In short, Peguero was imprisoned without being afforded any of the fundamental Constitutional rights that protect citizens from arbitrary imprisonment by the government.

I acknowledge that the district court acted consistently with existing precedent of this Court, and that the majority feels constrained to follow that precedent and to affirm.  Importantly, however, no decision of the Supreme Court or this Court has ever analyzed whether a person on supervised release facing violation charges punishable by more than one year in prison has a right to indictment on those charges.  Nor has either Court ever held that proceedings that require indictment do not constitute a “prosecution” and therefore can be decided without affording the accused his Sixth Amendment rights.  Because this appeal raises Confrontation Clause issues, and because I conclude that Peguero had the right to be indicted for his claimed supervised release violations, I further conclude that he had the right to confront witnesses against him.  In my view, prior decisions allowing a judge to sentence a person to prison for more than a year based on a violation of supervised release without providing such essential Constitutional protections are misguided and based on unsupportable legal fictions.  Accordingly, I respectfully dissent.

May 13, 2022 in Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Wednesday, May 11, 2022

Prez Biden finally announces a full slate of nominees to the US Sentencing Commission

As I have noted in a number of prior posts (some linked below), due to a lack of Commissioners, the US Sentencing Commission has lacked a quorum needed to fully function for well over three years, and the USSC has not had complete set of commissioners firmly in place for nearly decade.  The USSC staff has completed lots of useful research and reports in the interim; but, with the FIRST STEP Act's passage in December 2018, it has been particularly problematic for the USSC to be non-functional in terms of formal amendments or agendas in recent years.

But today, nearly 16 month into his Administration, President Joe Biden has finally announced a full slate of seven Commissioner nominations to the US Sentencing Commission.  Here is the official announcement, headlined "President Biden Nominates Bipartisan Slate for the United States Sentencing Commission," and the basics about the seven nominees (which by statute have to be bipartisan and include at least three judges):

President Biden is announcing seven experienced and qualified nominees for the U.S. Sentencing Commission, a bipartisan independent agency created during the Reagan Administration.  The Commission was created to reduce sentencing disparities and promote transparency and proportionality in criminal sentencing. 

The Commission has lacked a quorum since 2019, which has prevented it from doing critical business. Today, President Biden is pleased to announce the nominations of these individuals — a bipartisan slate including the first Black chair of the organization — whose confirmations would allow the Commission to conduct its important work. 

Judge Carlton W. Reeves: Nominee for Commissioner and Chair of the United States Sentencing Commission

Judge Carlton W. Reeves has served as a United States District Court Judge for the Southern District of Mississippi since 2010....

Laura Mate: Nominee for Commissioner and Vice Chair of the United States Sentencing Commission

Laura Mate has served as the Director of Sentencing Resource Counsel, a project of the Federal Public and Community Defenders in the Office of the Federal Public Defender for the District of Arizona, since 2021 and from 2010 to 2021 was a member of Sentencing Resource Counsel....

Claire McCusker Murray: Nominee for Commissioner and Vice Chair of the United States Sentencing Commission

Claire McCusker Murray served as the Principal Deputy Associate Attorney General of the United States Department of Justice from 2019 to 2021....

Judge Luis Felipe Restrepo: Nominee for Commissioner and Vice Chair of the United States Sentencing Commission

Judge Luis Felipe Restrepo has served as a United States Court of Appeals Judge for the Third Circuit since 2016....

Judge Claria Horn Boom: Nominee for Commissioner of the United States Sentencing Commission

Judge Claria Horn Boom has served as a United States District Court Judge for the Eastern and Western Districts of Kentucky since 2018....

Judge John Gleeson: Nominee for Commissioner of the United States Sentencing Commission

Judge John Gleeson is a partner at Debevoise and Plimpton LLP in New York, where he has practiced since 2016....

Candice C. Wong: Nominee for Commissioner of the United States Sentencing Commission

Candice C. Wong serves as an Assistant United States Attorney and Chief of the Violence Reduction and Trafficking Offenses Section in the United States Attorney’s Office for the District of Columbia....

Because these selections have surely been made in consultation with Senate leadership, I am reasonably hopeful that hearings and a confirmation of these nominees could proceed swiftly.  (But that may be wishful thinking, as was my thinking that these needed nominees would come a lot sooner.)  There is lots of work ahead for these nominees (and lots of blog posts to follow about them and their likely agenda), but for now I will be content with just a "Huzzah!"

A few of many prior recent related posts:

May 11, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (9)

Tuesday, May 10, 2022

Lots of notable parole stories from coast to coast

Parole is often a subject that generates headlines, and today I saw a notable number of notable stories from five states on the topic that seemed worth flagging.  In alphabetical order:

From California, "Medical Parole Got Them Out Of State Prison. Now They're In A Decertified Nursing Home"

From New Jersey, "In major reversal, N.J. Supreme Court orders parole of man convicted of murdering state trooper in 1973"

From New York, "New York’s longest serving inmate who murdered 14-year-old granted parole"

From Virginia, "Chances for Parole Go from Bad to Worse Under Virginia’s New GOP Leadership"

From Wisconsin, "Parole of killer in Wisconsin puts pressure on Evers"

May 10, 2022 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

FAMM urges feds to seek sentence reductions for all incarcerated persons subject to sexual abuse at Dublin FCI

As detailed in this local article from a few months ago, numerous staffers at the federal prison in California have been criminally charged with sexually abusing numerous incarcerated women.  (As press pieces have noted, Dublin FCI "had become known by the nickname 'Rape Club' due to rampant sexual abuse" with dozens of employees investigated for wrong-doing.)  Brining a sentencing angle to this sad story, yesterday FAMM sent this letter to Deputy Attorney General Lisa Monaco urging "the BOP to seek, and U.S. Attorneys to file, reduction of sentence motions for every woman whose allegations have been found credible."

I recommend the two-page FAMM letter in full, and here is an excerpt:

The Bureau of Prisons can refer compassionate release motions to the U.S. Attorney for filing when it finds extraordinary and compelling reasons warrant a reduction in sentence. While the policy statement describing extraordinary and compelling reasons does not include sexual abuse by corrections officials, it does provide the BOP the power to identify “other reasons,” that alone or in combination with recognized criteria merit compassionate release.

Sexual assault by BOP personnel of incarcerated women is an exceptional abuse of trust.  The trauma resulting from such victimization is without doubt an extraordinary and compelling reason justifying consideration for compassionate release. None of the victims was sentenced to endure such violence. It has made their incarceration degrading and terrifying.  The victims could not protect themselves or flee their abusers.  Many struggle to speak about their experience for fear of retaliation.  Sexual abuse survivors bear the emotional scars of their violation for years. Mental health care in the federal system is inadequate to help them begin to heal....

A motion filed by the U.S. Attorney on behalf of the Bureau of Prisons is the best opportunity to secure emotional and physical safety for women who endured sexual abuse by BOP personnel.  A Department-sanctioned motion carries the weight of the Department’s imprimatur, something a defendant-filed motion does not.  But, more than that, a motion filed by the United States would convey the gravity of the harm these women endured and signal your commitment to make it right.

May 10, 2022 in Prisons and prisoners, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (11)

Monday, May 09, 2022

US Sentencing Commission releases latest detailed "Compassionate Release Data Report"

Cr-line-chart-2022_cropVia email, I got word that the US Sentencing Commission today published this updated compassionate release data report.  Here is the very brief accounting of the report from the email (as well as a reprinting of the graphic that appears as Figure 1 of the report):

With the advent of the COVID-19 pandemic, the courts received thousands of compassionate release motions, most filed by offenders.  This report provides an analysis of the compassionate release motions filed with the courts during the COVID-19 pandemic.

The Commission received the following information from the courts on motions decided during fiscal years 2020 and 2021 (October 1, 2019 – September 30, 2021):

  • 3,867 offenders were granted compassionate release. This represents 17.2% of motions.

  • 18,653 offenders were denied compassionate release. This represents 82.8% of motions.

There are lots and lots of interesting data points throughout this data report, including data highlighting that people sentenced long ago (and before the guidelines became advisory) had significantly higher success in getting a sentence reduction.  Also interesting is the data detailing the reasons that courts provided for granting these sentencing reduction motions, which suggests some small evolution in stated reasons from FY 2020 to FY 2021.

But most striking data are those details the dramatic variations in grant rates from various districts. As but one of many remarkable examples, consider the three districts of Georgia: the Southern District of Georgia granted only 5 out of 248 sentence reduction motions for a 2% grant rate; the Middle District of Georgia granted only 4 out of 217 sentence reduction motions for a 1.8% grant rate; but the Northern District of Georgia granted 76 out of 170 sentence reduction motions for a 44.7% grant rate.  One could also tell an island variation story, and no motions were granted (out of only six) in the Virgin Island district; but that lovely island district of Puerto Rico saw 79.2% of motions (19 of 24) granted. 

Remarkably, the District of Maryland — with a total of 211 sentencing reduction motions granted (though "only" a grant rate of 32.7% with 646 motions) — granted more of these motions that all the courts of the Fifth Circuit!  (The Fifth Circuit had the lower total circuit grant rate of 9.3% with only 204 motions granted out of 2,197 total brought.) 

May 9, 2022 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, May 08, 2022

Another month of highlights from among lots of new Inquest essays

I flagged a number of great pieces from Inquest in this post last month.  But Inquest, "a decarceral brainstorm," keeps churning out great new must-read essays every week. As I have said before, I am not sure how anyone can keep up with all the great content.  But I am sure I will keep spotlighting recent pieces worth checking out with an emphasis on sentencing and corrections topics:

By Jenny Rogers, "The Poverty of Access: Librarians have a responsibility to everyone in their communities — including those who are incarcerated"

By Piper French, "A Future for Susanville: This prison town is about to lose its livelihood. Its survival presents a test for abolition"

By Mon Mohapatra, "Unwell in a Cell: co-opting the language of mental health and treatment, jail expansion is taking root in several localities. But these are cages all the same."

By Leo Beletsky, Emma Rock & Sunyou Kang, "Drug-Induced Panic: Overdose mortalities and related harms require a public health response, not more criminalization and incarceration"

By Sara Mayeux, "And a Public Defender for All: We can celebrate the ascent of Ketanji Brown Jackson, while acknowledging that indigent defense remains woefully inadequate in this time of crisis"

May 8, 2022 in Recommended reading, Who Sentences | Permalink | Comments (0)

Friday, May 06, 2022

Register for "State Sentencing Commissions Work Towards Decarceration"

USSC panel with state folksIn this prior post, I noted the great weekly panel series for the month of May titled "The Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond."  This series has been put together by the Center for Justice and Human Dignity, a nonprofit organization whose mission is explained here in terms of seeking  "to reduce prison incarceration in the United States while improving conditions for those imprisoned and working inside."

This panel series is running now every Tuesdays at 12noon ET, which means the second panel is scheduled taking place this coming Tuesday, May 10th.  This panel is titled "State Sentencing Commissions Work Towards Decarceration," and the speakers are all the leaders of state sentencing commissions who will be discussing their work towards decarceration and lessons for the US Sentencing Commission.  Everyone can and should register to attend next week's session and the entire series here.  The speakers for all the panels are terrific, and here are the folks participating in this panel:

Kelly Mitchell, Chair of the MN Sentencing Guidelines Commission

Mark Bergstrom, Executive Director of the PA Commission on Sentencing

Sara Andrews, Executive Director of the OH Sentencing Commission

 

Here is a run-down of future panels:

Sentencing Review and Reduction: Open Questions and Next Steps for the Commission (Tuesday, May 17 12pm ET)

Looking Ahead: Learning from Past Commission Leadership (Tuesday, May 24 12pm ET)

Prior related posts:

May 6, 2022 in Who Sentences | Permalink | Comments (0)

Continuing to scratch the sentencing surface if Roe is overturned and abortions are criminalized

As mentioned in this post right after the leaked draft SCOTUS opinion suggested Roe v. Wade will soon be overturned, if abortion issues are returned entirely to elected officials, a lot more abortion-related activity will be criminalized in a lot more states raising all sorts of new issues regarding sentencing law and policy.  I flagged a few of the sentencing provisions of some of the recently-enacted criminal prohibitions of abortions in a few states in my prior post, and now Politico is on this beat with this new piece fully headlined, "Abortion bans and penalties would vary widely by state: The penalties vary widely by state, and also can include hefty fines or the suspension of a medical license."  Here are excerpts:

Abortion bans set to take effect if Roe v. Wade is overturned could mean lengthy prison sentences for people who have an abortion, the physicians who perform them or those who help people access the procedure. The penalties vary widely by state, and also can include hefty fines or the suspension of a medical license.

Even as national Republican leaders, many of whom have worked for decades to outlaw abortion, dismiss fears of prosecutions, state lawmakers have already enacted mandatory minimum sentences that would go into effect if Justice Samuel Alito’s draft opinion is handed down....

[I]n Texas, anyone who performs, induces or attempts an abortion where “an unborn child dies as a result of the offense” is guilty of a first-degree felony — punishable by up to life in prison and up to a $10,000 fine — under the state’s trigger ban.  In Alabama, anyone who performs an abortion, provides abortion pills or “aids, abets or prescribes for the same,” faces up to 12 months in county jail or hard labor and a fine of up to $1,000 under the state’s pre-Roe ban.  And in South Carolina, a person who ends their pregnancy either with a pill or by other means faces up to two years in prison and a fine of up to $1,000 under state law.

Bills moving in some states go even further. Legislation in Louisiana that would classify abortions as homicide and extend legal personhood to fertilized eggs was voted out of committee on Wednesday.  Homicide is punishable in the state by the death penalty or life without the possibility of parole....

And while some states — such as Idaho, Missouri and Kentucky — have legal language saying people who get an abortion can’t be charged, those patients could be forced to testify against their doctor or romantic partner who helped them access the procedure.  “Even if a bill doesn’t allow pregnant people to be charged directly, we’re concerned about the ways increased surveillance could lead to people being criminalized for an abortion or another kind of pregnancy loss,” Farah Diaz-Tello, the senior counsel and legal director of the group If/When/How, told POLITICO.

Notably, this new New York Times article discusses the growing use of "medication abortion" under the headlined "Abortion Pills Stand to Become the Next Battleground in a Post-Roe America." Here is how the lengthy article concludes:

Some abortion rights advocates said that the availability of safe and effective abortion pills has eliminated one of the greatest fears in the years before Roe — but has added a new one.  “One of the sharpest distinctions is really between the idea of hemorrhaging and the idea of handcuffs,” said Kristin Ford, a spokeswoman for NARAL Pro-Choice America.  “In the pre-Roe world, there was a legitimate concern about people bleeding out in back alleys. That’s not the reality we face. What we’re looking at now is a world of criminalization.”

The development of abortion drugs and the eagerness of some to distribute them and of others to prohibit them already has me wondering if we could be on the verge of a whole new frontier for the war on drugs. Remarkable times.

Recent related post:

May 6, 2022 in Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (13)

Thursday, May 05, 2022

Federal judge formally accepts below-guideline sentencing terms of Derek Chauvin's plea deal for civil rights violations

As reported in this post from back in December, Derek Chauvin pleaded guilty in federal court to civil rights violations arising from his murder of George Floyd.  He did so with a plea deal in place that would bind the federal judge to impose a sentence of between 20 and 25 years even though Chauvin's advisory guideline range is life imprisonment.  At the time, the judge deferred acceptance of the plea deal pending preparation of the presentence report.  That report is now in, as this AP piece reports that the plea deal was formally accepted by the court yesterday: 

The judge overseeing the federal civil rights cases of four former Minneapolis police officers in the killing of George Floyd said Wednesday that he has accepted the terms of Derek Chauvin's plea agreement and will sentence him to 20 to 25 years in prison.

Chauvin pleaded guilty December 15 to violating Floyd's civil rights, admitting for the first time that he kept his knee on Floyd's neck — even after he became unresponsive — resulting in the Black man's death on May 25, 2020. The White former officer admitted he willfully deprived Floyd of his right to be free from unreasonable seizure, including unreasonable force by a police officer.

Under the plea agreement, which Chauvin signed, both sides agreed Chauvin should face a sentence ranging from 20 to 25 years, with prosecutors saying they would seek 25. He could have faced life in prison on the federal count. With credit for good time in the federal system, he would serve from 17 years to 21 years and three months behind bars.

U.S. District Judge Paul Magnuson deferred accepting the agreement pending the completion of a presentence investigation. He said in a one-page order Wednesday that the report had been issued, so it was now appropriate to accept the deal. He has not set a sentencing date for Chauvin.

Chauvin is already serving a 22 1/2 year sentence for his murder conviction in state court last year, though he is appealing that conviction. He would serve the federal sentence concurrently with the state sentence. The federal plea deal means Chauvin will probably spend more time in prison than he faced under his state sentence. State prisoners in Minnesota typically serve one-third of their sentence on parole, which for him would mean 15 years in prison.

I am inclined to predict that Judge Magnuson will give Chauvin the max that this plea deal permits of 25 years, which would likely mean Chauvin will be in the federal pen until the early 2040s. Based on the state murder conviction alone, he would have likely been out by the mid 2030s.

A few prior related posts:

May 5, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Wednesday, May 04, 2022

Notable CCJ new task force examining long prison terms

I was pleased to see this announcement of the Council of Criminal Justice's new Task Force on Long Sentences. The membership roster is very impressive, and here is how the task force is described on the CCJ site:

The Council on Criminal Justice Task Force on Long Sentences is examining how long prison terms affect public safety, crime victims and survivors, incarcerated individuals and their families, communities, and correctional staff and developing recommendations that will strengthen public safety and advance justice.

Guided by research and data, and informed by the experiences of victims and survivors of violent crimes and those who have been incarcerated, the Task Force is assessing the drivers of growth in the number of people sentenced to 10 years or more and the impact of such sentences on racial, ethnic, and gender disparities in the prison system.  It also is considering ways to improve the post-release success of people serving long prison terms, most of whom return to the community.

The Task Force is co-chaired by former U.S. Deputy Attorney General Sally Yates, who was also U.S. Attorney for the Northern District of Georgia, and Trey Gowdy, a long-time federal and state prosecutor who served four terms in the House of Representatives.  Joining them are 14 other members representing a broad range of experience and perspectives, including crime victims and survivors, formerly incarcerated people, prosecutors, defense attorneys, law enforcement, courts, and corrections.

Launched in spring 2022, the Task Force on Long Sentences follows CCJ’s Violent Crime Working Group, which released a series of bulletins on strategies to address community violence and in January produced a roadmap of 10 essential actions that policymakers can take to reduce violence now. 

May 4, 2022 in Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Tuesday, May 03, 2022

"Why Tennessee Gov. Bill Lee should veto mass-incarceration crime bill"

The title of this post is the headline of this commentary authored by David Louis Raybin. I recommend the full piece, and here are excerpts:

Crime rates do not drive a state’s prison population — policy choices do.

Every year the General Assembly passes a few bills which lengthen sentences for a few crimes.  This year the flood gates opened.  Two dozen offenses have been amended to require service of 85% or even 100% of the total time before release. There are no “behavior” credits which reduce these sentences further. Some offenses now prohibit parole.

Our current sentencing scheme includes lengthy sentences that can be a mix of prison and supervised parole release on a case-by-case basis.  For example, a first offender might get a sentence of six years, but he or she would be eligible for parole supervision after service of about 30% of that time.  Now, he or she will serve the full 6 years.

There are better ways to accomplish certainly in sentencing such as by having mandatory minimums of real time behind bars but coupled with rehabilitative programs.  The sentence lengths under current law were never designed for 100% or even 85% sentences.  But now the real time in prison is doubled or even tripled with no hope and release perhaps decades later with little or no supervision.

In 1979, crime was getting out of hand. Gov. Lamar Alexander’s legal counsel and I were asked to draft a crime bill....  We came up with what was known as the Class X Felony Law of 1979.  Much like the current legislation, this law eliminated early parole and sentencing credits.

While it seemed like a good idea at the time, in a few years the prisons were filled and eventually overflowing.  There were riots in four prisons.  Correctional officers and nurses were held hostage.  A fire started at one prison caused millions in damage.  A federal court took over our prisons.  The General Assembly was called into an emergency special session.  As a result, parole and credits were restored as a reward for good behavior and to allow for supervised release of compliant inmates. We should learn the lessons of the not-too-distant past and not repeat the same mistakes.

The cost to taxpayers of this current legislation is astronomical: $95 million.  Thousands of people are convicted each year of the offenses that will now require substantially increased prison sentences.  Our prisons are already bursting at the seams with inmates backing up in the jails.  We would need to build new prisons each year to house the increase in inmates....  As part of the budget the legislature also approved funding for a covered football stadium.  We may need it to house all the extra prisoners this crime bill will generate.

With his veto pen, Governor Lee has an opportunity to give the General Assembly a chance to reconsider ill-advised, mass incarceration legislation.  This is not the kind of “criminal justice reform” the governor campaigned for and that voters resoundingly elected him to implement.

As someone who has helped draft numerous sentencing laws over the years, including a similar bill that had disastrous effects, I request Governor Lee to use his constitutional powers to let us catch our breath and work together for a long-term solution which will make us all safer.

May 3, 2022 in Scope of Imprisonment, Who Sentences | Permalink | Comments (4)

Monday, May 02, 2022

Multiple Tennessee executions put on hold as Gov orders "third-party review" lethal injection process

Tennessee had multiple executions scheduled for 2022.  But, as reported in this post a few weeks ago, the first of these scheduled executions was postponed by the Gov at the last minute because of concerns with the state's lethal injection process.  Now, as reported in this local article, "Tennessee Gov. Bill Lee has paused all executions in the state through 2022." Here are the details and context:

Lee announced the move in a news release early Monday morning, saying the pause will give time for a third-party review and a complete assessment over the lethal injection process.  “I review each death penalty case and believe it is an appropriate punishment for heinous crimes,” Lee said.  “However, the death penalty is an extremely serious matter, and I expect the Tennessee Department of Correction to leave no question that procedures are correctly followed.”...

U.S. Attorney Ed Stanton will oversee the independent review for Tennessee, the release said.  The review will include an exploration into circumstances that led to testing the lethal injection chemicals for only potency and sterility but not endotoxins ahead of the April 21 execution, clarity of the lethal injection process manual that was last updated in 2018 and adherence to testing policies since the update.

“An investigation by a respected third-party will ensure any operational failures at TDOC are thoroughly addressed,” Lee said.  “We will pause scheduled executions through the end of 2022 in order to allow for the review and corrective action to be put in place.”

Three of four executions in Tennessee have been carried out by electric chair since 2019, the release said. Death row inmates are given the choice between lethal injection and the electric chair in Tennessee.  Lethal injection is the default method for execution in the state.

Smith's execution was set to be the first since February 2020 due to COVID-19 delays.  He was one of five death row inmates set to be executed in Tennessee this year.  The Tennessee Supreme Court will set new dates for the 2022 executions, the release said.

Governor Lee's official statement is available at this link.

May 2, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, May 01, 2022

An (incomplete) account of the dynamic state of federal criminal justice reform politics

This new Politico article, headlined "Trump’s criminal justice reform bill becomes persona non grata among GOPers," provides an interesting (but I think incomplete) account of the current state of federal criminal justice reform politics.  I recommend the full piece, and here are some excerpts:

The First Step Act was not just hailed as a rare bipartisan achievement for the 45th president but as the beginning of a major shift in GOP politics, one that would move the party past the 1980s tough-on-crime mindset to a focus on rehabilitation, racial fairness and second chances.

Three-and-a-half years later, few Republicans — Trump included — seem not at all interested in talking about it. With spikes in crime registering as a top concern for voters, Republicans have increasingly reverted back to that 1980s mindset. Talk of additional legislation has taken a back seat to calls for enhanced policing and accusations that Democratic-led cities are veering toward lawlessness....

For some advocates, the Republican Party’s cooling to criminal justice reform confirms the belief the interest wasn’t ever sincere. But for lawmakers and advocates on the right who worked on the First Step Act, the shift has been similarly disconcerting, raising concern it freezes political momentum for further reform.

“I personally think there’s just as many people that want to do criminal justice reform as the last several years, but I think their voices are quiet now, and those that are opposed to the First Step Act are still opposed and have gotten louder,” said Brett Tolman from the conservative group Right on Crime.  Tolman added that much work continues behind the scenes. “It feels like we just have to bide our time a bit and get past when the emotion of all of the political rhetoric is at the forefront.”...

Republicans who support reforms say the party can be both in line with that vision and adopt a tough-on-crime posture — that voters will be able to differentiate between crackdowns on violent crime and accountability in the justice system. “Reform and calling out truths can coexist. It’s not a binary decision.  And there are achievable solutions available,” said Zack Roday, a Republican political strategist.

But trends aren’t helping the reformer’s cause. In the past year, violent crime rates have risen dramatically, with at least 12 major U.S. cities breaking annual homicide records in 2021.  Recent polling reflects public concerns about rising crime rates and dissatisfaction with how public leaders are addressing the problem.  Republicans pointed to the trends as evidence of a Democratic failure....

Despite the changing political winds, reform advocates still say they are optimistic that Congress will pass the EQUAL Act, which would end federal sentencing disparities between crack and cocaine offenses.  Supporters of the bill, which the House passed in September with the support of some of the most conservative members, say it would address racial disparities, noting 90 percent of those serving federal time for crack offenses are Black....

So far, the bill has the support of 11 Republican senators, the National District Attorneys Association, the Major Cities Chiefs Association and the American Civil Liberties Union.  But congressional aides warn the legislation is not a slam dunk, especially without the support of Grassley, now the top Republican on the Judiciary Committee.  This week, the senator introduced a separate bill tackling crack and cocaine sentencing disparities.  And in a midterm election year when public focus is on rising crime in communities, some conservatives say they do not see a path forward for federal reforms.

“From the federal government I don’t see anything passing this year on criminal justice reform, I think they’re done. I think the politics of it are too difficult,” said Charles Stimson, a crime expert at the conservative Heritage Foundation. “People will probably be motivated in the fall to vote for folks who take the law and order approach and they’re not going to believe people who say they don’t have a crime problem.”

Though covering a lot of ground well, this Politico piece seem to me to fail to highlight how much crime and punishment had become a part of this era's broader culture wars.  Of particular note, I think George Floyd's murder, which brought "defund the police" to the forefront of the political arena, served to derail some of the bipartisanship that got the FIRST STEP Act to the finish line.  And thereafter with rising crime concerns, the GOPs recent affinity for a certain brand of populism makes it ever more likely for a return to the classic tough-on-crime tune.  (It also bears noting, in this context and others, that while Prez Trump leaned into prison reforms all through 2018 and actively helped get the FIRST STEP Act done, Prez Biden has made no public effort to push criminal justice reforms others than politically-fraught policing reforms.) 

And yet, adding ever more nuance to a complicated political story, there still seems to be persistent bipartisan energy for not just the EQUAL Act, but also for other smaller reforms. For example, as noted here, just six weeks ago, the US House overwhelmingly voted, by a margin of 405-12, for the Prohibiting Punishment of Acquitted Conduct Act of 2021.  And various modest proposed marijuana reforms, such as the SAFE Banking Act and a variety of bills to enhance research or expand expungements, are garnering bipartisan support in one form or another.     

Stated differently, I share Brett Tolman's general view that there are still plenty of folks on both sides of the aisle that are considerably interested in considerable criminal justice reforms.  But, critically, as political and criminal justice realities on the ground have changed, leaders of Congress must change their vision of the possible circa May 2022.  More modest bills may have to get more attention, and the "best" cannot be the enemy of the "good enough."   Small reform victories are still victories, and I would hope that the type of criminal justice reform bills that pass by a margin of 405-12 in one chamber should be able to make some progress in the other.  But hoping for Congress to do better obviously does not mean it will anytime soon.  

May 1, 2022 in Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

"Donald Trump’s Clemencies: Unconventional Acts, Conventional Justifications"

The title of this post is the title of this paper now available via SSRN and authored by Austin Sarat, Laura Gottesfeld, Carolina Kettles and Olivia Ward.  Here is its abstract:

During his four years as president Donald Trump’s use of the clemency power generated considerable controversy.  Much scholarship documents the fact that he ignored the traditional procedures for reviewing and approving requests for pardons and commutations and used clemency to favor a rogues’ gallery of cronies, celebrities and those whose crimes showed particular contempt for the law.  However, few scholars have examined the justifications he offered when he granted pardons and commutations.  This paper fills that gap.  We argue that because the clemency power sits uneasily with democracy and the rule of law when presidents use this power they feel the need to supply justifications.  We report on a study of Trump’s clemency justifications that suggests that while his clemencies themselves were often controversial and his means of communicating about them unconventional, the reasons he gave for them were generally quite conventional and continuous with the justifications offered by his predecessors for their pardons and commutations.

May 1, 2022 in Clemency and Pardons, Criminal justice in the Trump Administration, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, April 29, 2022

GOP Senators introduce competing crack/powder sentencing reform bill tougher than EQUAL Act

Regular readers should be aware from my prior postings that Congress seems poised to pass the EQUAL Act to entirely eliminate the crack and powder cocaine sentencing disparity.  This disparity and its racialized impacts have been an ugly part of the federal sentencing landscape for over 35 years (when Congress first created the 100:1 disparity), and the Fair Sentencing Act of 2010 only partially reduced the disparity (down to 18:1).  But after the US House voted overwhelmingly, 361-66, to pass the EQUAL Act to end disparity last year, and after the Senate version had secured 11 GOP sponsors, I was hopeful the powder and crack cocaine disparity could and would finally be ended this year.

But, this press release from Senator Chuck Grassley's office, titled "Senators Introduce Bill To Reduce Crack-Powder Sentencing Disparity, Protect Communities From Criminals Most Likely To Reoffend," now has me concerned that a competing bill might now muck up the works.  Here are the details from the release:

Sens. Chuck Grassley (R-Iowa), Mike Lee (R-Utah), Roger Wicker (R-Miss.) and Lindsey Graham (R-S.C.) today introduced the SMART Cocaine Sentencing Act, which will reduce the sentencing disparity between crack and powder cocaine offenders tried in federal courts. The legislation aims to make sentencing fairer while also preserving the ability of courts to keep those most likely to reoffend off the street.

“I’ve worked on this issue for many years. I cosponsored the 2010 legislation led by Senators Durbin and Sessions to reduce the disparity in sentencing from 100-to-1 to 18-to-1.  It’s high time to do more to address this important issue and make our criminal code more just and fair.  Our legislation will significantly reduce this disparity while ensuring those more likely to reoffend face appropriate penalties.  Powder cocaine is being trafficked across the border in historic volumes, so we also need to take precautions that ensure these traffickers also face justice for spreading poison through our communities,” Grassley said....

This sentencing disparity between crack and powder cocaine offenders has had a disparate impact on communities of color across the country.  Reducing this disparate impact is critical, but must be thoughtfully enacted to prevent likely reoffenders from returning to communities just to violate the law again.

Separate legislation has been introduced in the Senate to completely flatten the differences between sentences for crack cocaine and powder cocaine offenses.  This approach does not account for the differences in recidivism rates associated with the two types of cocaine offenses.  According to a January 2022 analysis from the U.S. Sentencing Commission (USSC), crack cocaine offenders recidivate at the highest rate of any drug type at 60.8 percent, while powder cocaine offenders recidivate at the lowest rate of any drug type at 43.8 percent.  Raising additional public safety concerns, USSC data reveals that crack cocaine offenders were the most likely among all drug offenders to carry deadly weapons during offenses. These statistics show the need for a close look at all available government data before we consider an approach to flatten sentencing for crack and powder cocaine offenses. 

The SMART [Start Making Adjustments and Require Transparency in] Cocaine Sentencing Act will reduce the current crack-to-powder cocaine sentencing disparity from 18:1 to 2.5:1. It reduces the volume required to trigger 5-year mandatory minimum sentences for powder cocaine from 500 grams to 400 grams, and from 5 kilograms to 4 kilograms for 10-year mandatory minimum sentences.  For crack cocaine, the volume triggering a 5-year mandatory sentence is increased from 28 grams to 160 grams; the volume for the 10-year mandatory sentence is lifted from 280 grams to 1,600 grams.

Critically, the SMART Cocaine Sentencing Act also requires an attorney general review and certification process for any retroactive sentencing adjustments. It provides for new federal research from the Drug Enforcement Administration and the Department of Health and Human Services regarding the lethality and addictiveness of these substances as well as what violence is associated with cocaine-related crimes. The legislation also requires a new report from the USSC on crack and powder cocaine offenses, including data on recidivism rates....

Full legislative text of the SMART Cocaine Sentencing Act can be found HERE.  

Kevin Ring has an effective Twitter thread here criticizing various aspects of this proposal, which he calls the "The Grassley Unequal Act."  I hope that this bill does not impede progress on the EQUAL Act, but the fact that the EQUAL Act has not become law already make me concerned about the fate and future or long-overdue efforts to end the crack/cocaine sentencing disparity.

A few of many prior posts on the EQUAL Act:

UPDATE This new New York Times article, headlined "Drug Sentencing Bill Is in Limbo as Midterm Politics Paralyze Congress," details why the EQUAL Act may not get to the finish line in this Congress.  Here are excerpts:

[W]ith control of Congress at stake and Republicans weaponizing a law-and-order message against Democrats in their midterm election campaigns, the fate of the measure is in doubt. Democrats worry that bringing it up would allow Republicans to demand a series of votes that could make them look soft on crime and lax on immigration — risks they are reluctant to take months before they face voters.

Even the measure’s Republican backers concede that bringing it to the floor could lead to an array of difficult votes.  “I assume the topic opens itself pretty wide,” said Senator Roy Blunt, Republican of Missouri, who became the 11th member of his party to sign on to the Equal Act this month, giving its supporters more than the 60 votes needed to overcome procedural obstacles....

Though Mr. Schumer endorsed the legislation in April, he has not laid out a timeline for bringing it to the floor.  Democrats say he is giving backers of the bill a chance to build additional support and find a way to advance the measure without causing a floor fight that could take weeks — time that Democrats do not have if they want to continue to win approval of new judges and take care of other business before the end of the year....

Its supporters say that they recognize the difficulties but believe that it is the single piece of criminal justice legislation with a chance of reaching the president’s desk in the current political environment.  “Of all the criminal justice bills, this is the one that is set up for success right now,” said Inimai Chettiar, the federal director for the Justice Action Network. “It is not going to be easy on the floor, but I think it is doable.”

The problem is that the push comes as top Republicans have made clear that they intend to try to capitalize on public concern about increasing crime in the battle for Senate and House control in November....  Senator Mitch McConnell, the Kentucky Republican and minority leader, this week reprised his criticism of Judge Jackson and attacked Mr. Biden for having issued his first round of pardons and commutations, including for those convicted of drug crimes.  “They never miss an opportunity to send the wrong signal,” he said of Democrats.

Senator Tom Cotton, the Arkansas Republican who led the opposition to the First Step Act, said he was in no mood to let the Equal Act sail through. He has said that if the disparity is to be erased, penalties for powder cocaine should be increased.  “My opposition to the Equal Act will be as strong as my opposition to the First Step Act,” Mr. Cotton said.

The legislation encountered another complication on Thursday, when Senators Charles E. Grassley of Iowa and Mike Lee of Utah, two top Republican supporters of the previous criminal justice overhaul, introduced a competing bill that would reduce — but not eliminate — the sentencing disparity between crack and powder cocaine. They said that research showed that crack traffickers were more likely to return to crime and carry deadly weapons.  “Our legislation will significantly reduce this disparity while ensuring those more likely to reoffend face appropriate penalties,” said Mr. Grassley, the top Republican on the Judiciary Committee.

Sponsors of the Equal Act say they intend to push forward and remain optimistic that they can overcome the difficulties.  “We’ve got an amazing bill, and we’ve got 11 Republicans and people want to get this done,” said Senator Cory Booker, Democrat of New Jersey and the lead sponsor of the legislation. “My hope is that we are going to have a shot to get this done right now.”

With strong advocates of the EQUAL Act now saying that getting this to the floor of the Senate is "doable" or can "have a shot," I cannot help but think it is quite a long shot this Congress.  Sigh.

April 29, 2022 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Thursday, April 28, 2022

Register for "Alternatives to Incarceration: Reducing Mass Incarceration in Federal Court"

1234 AlternativesIn this post last week, I noted the great weekly panel series for the month of may titled "The Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond."  This series has been put together by the Center for Justice and Human Dignity, a nonprofit organization whose mission is explained here in terms of seeking  "to reduce prison incarceration in the United States while improving conditions for those imprisoned and working inside."

This panel series is to run every Tuesdays at 12noon ET from May 3 through May 24, which means the first panel is scheduled taking place this coming Tuesday, May 3rd.  This first panel is titled " "Alternatives to Incarceration: Reducing Mass Incarceration in Federal Court," which means the speakers will focus on incarceration alternatives in the federal courts and the impact of the US Sentencing Commission in their applicability.  Everyone can and should register to attend next week's session or the entire series here.  The speakers for all the panels are terrific, and here are the folks participating in this first panel:

Judge Dolly M. Gee, United States District Judge of the United States District Court for the Central District of California, CASA Program

Raul Ayala, Deputy Federal Public Defender at Office of the Federal Public Defender, CASA Program

Judge Leo Sorokin, District Court Judge, District of Massachusetts, RISE Program

Chris Dozier, NAPSA Federal Director, Retired Chief U.S. Pretrial Services Officer

And here is a run-down of the future panels:

State Sentencing Commissions Work Toward Decarceration (Tuesday, May 10 12pm ET)

Sentencing Review and Reduction: Open Questions and Next Steps for the Commission (Tuesday, May 17 12pm ET)

Looking Ahead: Learning from Past Commission Leadership (Tuesday, May 24 12pm ET)

Prior related post:

April 28, 2022 in Criminal Sentences Alternatives, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Sixth Circuit panel grants mandamus because district judge rejected a plea deal with an appeal waiver the wrong way

Earlier this week, a Sixth Circuit panel issued a notable ruling in In Re United States of America, No. 21-1318 (6th Cir. April 26, 2022) (available here).  At issue was the behavior of a District Judge who was unwilling to accept a plea agreement with an appeal waiver, and the panel was troubled the district court failed to provide a case-specific account for why a (somewhat limited) waiver was problematic:

What is particularly troubling is that the court’s reasoning would seemingly prohibit every plea agreement containing appeal waivers, regardless of the defendant’s case, the agreement’s charging or sentencing terms, or the parties’ reasons for negotiating those waivers.  We cannot credit the district court’s argument that it engaged in an individualized assessment simply because it inserted the phrase “the circumstances of this case” at various points in its opinion. Without more explanation from the court, such language is mere surplusage....

To summarize, a district court does not possess unrestrained discretion to reject a plea agreement.  It must, among other things, make an individualized assessment of the agreement and predicate its decision on the specific facts and circumstances presented.  Because the district court here failed to do that, this is the narrow circumstance in which the district court abused its discretion.  Accordingly, the United States has a clear and indisputable right to mandamus on this ground.

Some (now dated?) research has highlighted the "uneven practice of trading sentencing concessions for waivers" and that "some defendants appear to receive neither greater certainty nor leniency in return for signing wide-open and unlimited waivers of their rights to review."  More generally, I generally agree with the District Court's stated policy concerns with all appeal waivers: "The court explained its belief that appeal waivers 'embargo' trial court mistakes, 'insulate' the government’s conduct 'from judicial oversight,' effectively 'coerce' guilty pleas with offers 'too good to refuse,' and 'inhibit[] the development of the Sentencing Guidelines'.” 

But, even though I think appeal waivers should be viewed as void as against public policy, circuit courts have all regularly upheld various versions of this (government labor-saving) device.  (Early on, eager to limit appeals, many circuits claimed that an appeal waiver limited their jurisdiction to consider an appeal, but eventually they moved away from this anti-textual claim.)  Upon first seeing this Sixth Circuit opinion, I was concerned this panel might assert a judge could never reject an appeal waiver (which prosecutors argued), but the message from the opinion instead is that district judges need to provide an "individualized assessment" in order to do so. 

Prof Carissa Hessick, who has written a great book on plea bargaining, calls parts of the Sixth Circuit panel opinion "bonkers" in this Twitter thread.  She hopes the "Sixth Circuit decides to hear this case en banc and to reverse this terrible panel decision," but I am not holding my breath. 

April 28, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (12)