Sentencing Law and Policy

Idaho about to become latest state to authorize execution by firing squad

As reported in this AP piece, "Idaho is poised to allow firing squads to execute condemned inmates when the state can't get lethal-injection drugs, under a bill the Legislature passed Monday with a veto-proof majority."  Here is more:

Firing squads will be used only if the state cannot obtain the drugs needed for lethal injections — and one death row inmate has already had his scheduled execution postponed multiple times because of drug scarcity.

The move by Idaho lawmakers is in line with those by other states that in recent years have scrambled to revive older methods of execution because of difficulties obtaining drugs required for longstanding lethal injection programs. Pharmaceutical companies increasingly have barred executioners from using their drugs, saying they were meant to save lives, not take them.  Idaho Republican Gov. Brad Little has voiced his support for the death penalty but generally does not comment on legislation before he signs or vetoes it.

Only Mississippi, Utah, Oklahoma and South Carolina currently have laws allowing firing squads if other execution methods are unavailable, according to the Death Penalty Information Center.  South Carolina’s law is on hold pending the outcome of a legal challenge.

Some states began refurbishing electric chairs as standbys for when lethal drugs are unavailable. Others have considered — and at times, used — largely untested execution methods.  In 2018, Nevada executed Carey Dean Moore with a never-before-tried drug combination that included the powerful synthetic opioid fentanyl. Alabama has built a system for executing people using nitrogen gas to induce hypoxia, but it has not yet been used.

During a historic round of 13 executions in the final months of Donald Trump’s presidency, the federal government opted for the sedative pentobarbital as a replacement for lethal drugs used in the 2000s. It issued a protocol allowing firing squads for federal executions if necessary, but that method was not used.  Some lawyers for federal inmates who were eventually put to death argued in court that firing squads actually would be quicker and cause less pain than pentobarbital, which they said causes a sensation akin to drowning.

However, in a 2019 filing, U.S. lawyers cited an expert as saying someone shot by firing squad can remain conscious for 10 seconds and that it would be “severely painful, especially related to shattering of bone and damage to the spinal cord.”...

Idaho Sen. Doug Ricks, a Republican who co-sponsored that state's firing squad bill, told his fellow senators Monday that the state's difficulty in finding lethal injection drugs could continue “indefinitely” and that he believes death by firing squad is “humane.”...

But Sen. Dan Foreman, also a Republican, said firing-squad executions would traumatize the people who who carry them out, the people who witness them and the people who clean up afterward. “I've seen the aftermath of shootings, and it's psychologically damaging to anybody who witnesses it,” Foreman said.  “The use of the firing squad is, in my opinion, beneath the dignity of the state of Idaho.”

The bill originated with Republican Rep. Bruce Skaug, prompted in part by the state's inability to execute Gerald Pizzuto Jr. late last year.  Pizzuto, who now has terminal cancer and other debilitating illnesses, has spent more than three decades on death row for his role in the 1985 slayings of two gold prospectors.

The Idaho Department of Correction estimates it will cost around $750,000 to build or retrofit a death chamber for firing squad executions.  Agency Director Jeff Tewalt last year told lawmakers there would likely be as many legal challenges to planned firing squad executions as there are to lethal injections.  At the time, he said he would be reluctant to ask his staffers to participate in a firing squad.

"The 'Cruel and Unusual' Legacy of the Star Chamber"

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

Supreme Court justices have read the “cruel and unusual punishments” clause as prohibiting torturous methods of punishment, prohibiting grossly disproportionate punishments, and/or prohibiting arbitrary discretion over the infliction of the death penalty.

All three accounts face familiar and formidable historical challenges.  There is general agreement that the founders took the clause from Article 10 of the English Bill of Rights, and that Article 10 repudiated the horrific sentence passed on Titus Oates by the infamous Judge Jeffreys in 1685.  Each of the major interpretations fails to account for important pieces of the Oates puzzle.

The methods of punishment inflicted on Oates were two days of horrific flogging, recurring stands in the pillory, and life imprisonment.  These methods were not capital, were not unusual in 1685, and were all included in the Crimes Act passed by the First Congress.  Oates’s sentence was not, by contemporary standards, disproportionate. His perjuries caused the executions of numerous innocents, quite possibly by torture.  By the standards of the times, he deserved hanging.

The Eighth Amendment, however, responded to anti-federalist fears that Congress might adopt torturous methods of capital punishment.  Prevailing theories fail to account for the disconnect between what the English provision did and what the American provision meant to do.

This Article argues that prevailing accounts are breathtakingly incomplete.  The full story begins not with the flogging of Titus Oates in 1685, but with the abolition of the Star Chamber in 1641.  Sentencing Oates, Jeffreys claimed for King's Bench all the Star Chamber's lawless power to determine punishments less than capital.  The English Article 10 repudiated this attempt to resurrect the Star Chamber.  Then Congress, responding to anti-federalist fears about Congress adopting European-style executions by torture, freighted the "cruel and unusual" language with two additional meanings.  The clause now applied to capital, as well as noncapital, penalties.  It now also restricted legislative as well as judicial discretion.  Synthesizing the English original and the later concerns of the American founders, the Eighth Amendment forbids lawless discretion in both capital and noncapital cases, and torturous methods of punishment.  Proportionality was left to the legislature, subject to the powerful check provided by a constitutional requirement of even-handed enforcement.

At a time when the Court is reconsidering longstanding precedents from originalist premises, this account is not only a major advance in the academic literature.  It may also be, practically speaking, a matter of life and death.

Rounding up some public defender commentary on Gideon's 60th anniversary

I saw a lot of interesting headlines in recent days in conjunction with the 60th anniversary of the Supreme Court's ruling in Gideon v. Wainwright.  Here is a sampling from various sources:

From Fox News, "Supreme Court's 'Gideon' ruling at 60 and the right to counsel: In their own words"

From the Los Angeles Times, "Criminal defendants’ right to counsel still shortchanged in much of California"

From NPR, "You have the right to a lawyer, but public defenders note a lack of resources, respect"

Oregon Public Broadcasting, "A constitutional crisis in Oregon’s criminal justice system continues, 60 years after landmark US Supreme Court decision"

The Sixth Amendment Center, "The State of the Nation on Gideon’s 60th Anniversary"

From Teen Vogue, "Gideon v. Wainwright Was a Landmark Decision, But Women Invented the Idea of the Public Defender"

From the US Courts, "60 Years Later, Gideon’s Legacy Lives On"

From the US Department of Justice, "Justice Department Commemorates the 60th Anniversary of Gideon v. Wainwright"

US Sentencing Commission posts over 1600 pages of public comment on proposed amendments

Perhaps unsurprisingly in light of a whole lot of notable proposed amendments to the US Sentencing Guidelines, the US Sentencing Commission received a whole lot of public comment in response to its "Notice and request for public comment" on these amendments.  Helpfully, for folks interested in seeing some of the highlights, the USSC has made big sample available here with lots of helpful links to each of the issues covered and with this explanation:

The Commission reviews and catalogs all public comment submissions for future reference and official recordkeeping purposes.  A representative sample of public comment is carefully selected, redacted, and posted online to provide the public with the kind of information considered by the Commissioners during their deliberations." 

Especially because I am distracted by a few different and distinct obsessions this weekend, I am certain I will not get a chance to review much of the commentary anytime soon.  But I welcome folks using the comments to flag any especially interesting comments (or any predictions they may have about what the final amendment will look like). 

A few recent related posts:

• US Sentencing Commissions publishes proposed guideline amendments and issues for comment 
• US Sentencing Commission to begin series of public hearings on its proposed guideline amendments
• US Sentencing Commission soon to begin second set of public hearings on proposed guideline amendments

Notable Seventh Circuit discussion of how a combination of factors can amount to "extraordinary and compelling reasons"

A helpful colleague made sure I did not miss a short ruling authored by Judge Frank Easterbrook for the Seventh Circuit concerning factors in support of motions for compassionate release. The ruling in US v. Vaughn, No. 22-2427 (7th Cir. March 15, 2023) (available here), is worth reading in full, and this is part of the discussion that seems especially notable:

Vaughn maintains that his arguments collectively identify “extraordinary and compelling reasons” even if none of them does so independently. At least two circuits have held that it is permissible to consider reasons jointly as well as severally. United States v. Ruvalcaba, 26 F.4th 14, 28 (1st Cir. 2022); United States v. McGee, 992 F.3d 1035, 1048 (10th Cir. 2021). But one has gone the other way, remarking: “[W]hy would combining unrelated factors, each individually insufficient to justify a sentence reduction, amount to more than the sum of their individual parts?” United States v. McKinnie, 24 F.4th 583, 588 (6th Cir. 2022). See also United States v. McCall, 56 F.4th 1048, 1066 (6th Cir. 2022).

The Sixth Circuit’s rhetorical question has some intuitive appeal. Often 0 + 0 = 0. But not always. One persistent error in legal analysis is to ask whether a piece of evidence “by itself” passes some threshold — to put evidence in compartments and ask whether each compartment suffices. But when one court of appeals asked whether Fact A showed probable cause for an arrest, then whether Fact B did so, whether Fact C did so, and so forth, the Supreme Court reversed in a sharp opinion reminding all judges that evidence should not be compartmentalized.

[T]he [court of appeals] viewed each fact “in isolation, rather than as a factor in the totality of the circumstances.”  This was “mistaken in light of our precedents.”  The “totality of the circumstances” requires courts to consider “the whole picture.”  Our precedents recognize that the whole is often greater than the sum of its parts — especially when the parts are viewed in isolation. Instead of considering the facts as a whole, the [court of appeals] took them one by one. … The totality-of-the-circumstances test “precludes this sort of divide-and-conquer analysis.”

District of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018) (internal citations omitted). Similarly, we have held that in employment-discrimination cases a district court must consider the evidence as a whole, rather than sorting facts into boxes and asking whether each suffices.... Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765–66 (7th Cir. 2016).

If we conceive of “extraordinary and compelling reasons” as those differentiating one prisoner’s situation from 99% of other prisoners, it is easy to see how Circumstance X could be true of only 10% of prisoners, Circumstance Y of 10%, and Circumstance Z of 10% — each insufficient to meet the threshold, but if they are independent then collectively enough to place the applicant among only 0.1% of all federal prisoners.  We do not say here that 99% is the threshold for “extraordinary and compelling reasons”; in the absence of guidance from the Sentencing Commission, identifying the threshold is committed to the discretion of district judges, with deferential appellate review.  See United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020).  Our point, rather, is that no matter how the threshold is defined, a combination of factors may move any given prisoner past it, even if one factor alone does not.  This leads us to disagree with the Sixth Circuit’s approach.

This does not help Vaughn in the end, however, because the discretion to evaluate multiple circumstances resides principally in the district courts.

Columnist George Will argues high plea rates can be explained by, "to a significant extent, coercion"

In this new Washington Post piece, headlined "How government’s excessive reliance on plea deals can undermine justice," George Will highlights the ABA's recent Plea Bargain Task Force Report (discussed here) to lament how prevalent pleas have become in our criminal justice systems.  Here are some excerpts:

Herewith a two-question quiz: What is the only right affirmed both in the Constitution of 1787 and in the Bill of Rights? And what governmental practice produces the most pervasive and glaring civil rights deprivations?

The answer to the first question is: the right to trial by jury. (Article III, Section 2: “The trial of all crimes, except in cases of impeachment, shall be by jury”; Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”) The answer to the second is: plea bargaining as currently practiced, which often effectively nullifies this right.

A just-published report by an American Bar Association task force says plea bargaining has not only become the primary way to resolve criminal cases, “some jurisdictions have not had a criminal trial in many years.” Think about that: Years can pass without a defendant exercising the constitutional right to an adversarial process conducted in public in front of a neutral judge and a jury of the defendant’s peers....

Last year, 98.3 percent of federal criminal convictions, and about 95 percent in the states, resulted from bargained guilty pleas. Why? To a significant extent, coercion.

This often begins with detention in frightening conditions: To be arrested is to be suddenly plunged into control by a government speaking an often arcane legal language.  Then there is “stacking” — prosecutors piling on charges which, in a context of mandatory minimum sentences, force defendants to choose between risking potentially life-ruining trials and pleading guilty to lesser charges, even if innocent....

The task force’s report stresses that plea bargaining has legitimate uses. It incentivizes defendants to accept responsibility for criminal conduct, and offers finality to their victims and the community.  Furthermore, prosecutorial resources are scarce, and plea bargaining is a mechanism for efficiently resolving cases.  No value in life, however, invariably supersedes all others, and the pursuit of efficiency has too often become “the driving force of criminal adjudication,” supplanting transparency and justice....

The Cato Institute’s Clark Neily and others suggest that plea bargaining on today’s “industrial scale” could be countered by a “trial lottery”: A small percentage of cases in which plea agreements have been reached should be randomly sent to trials.  How often would the government be unable to secure a conviction after it has managed to induce a pre-trial guilty plea?  Let’s find out.

I wish Will had mentioned the problems of acquitted conduct sentencing enhances in his discussion of the various forces that contribute to the very high rate of guilty pleas.  I raise the issue in part because as long as significant sentencing increases based on acquitted conduct remains permissible, prosecutors will always have a great incentive to bring as many charges as possible even if some plea cases were to "be randomly sent to trials." 

Prior related post:

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

"The Unconstitutional Conditions Vacuum in Criminal Procedure"

The title of this post is the title of this notable new article now available via SSRN authored by Kay Levine, Jonathan Remy Nash and Robert A. Schapiro. Here is its abstract:

For more than a century the United States Supreme Court has applied the unconstitutional conditions doctrine across a variety of settings, scrutinizing government efforts to condition the tradeoff of rights for benefits in the speech, funding, and takings contexts, among others.  The Court has declined, however, to invoke the doctrine in the area of criminal procedure, where people accused of crime are often asked to — and typically do — surrender their constitutional rights under the Fourth, Fifth, and Sixth Amendments in return for some benefit.  Despite the Court’s insistence that the unconstitutional conditions doctrine applies broadly across the Bill of Rights, its jurisprudence demonstrates that the doctrine functions as a selective shield that offers no support for certain rightsholders.

We argue that the Court’s approach undermines vital rights, with especially harmful consequences for people who most need judicial protection.  Since individuals accused of crime are often extremely vulnerable to coercive government measures, the important safeguards offered by the unconstitutional conditions doctrine should be at their apex in the criminal procedure setting.  Indeed, lower federal courts and some state courts have applied the doctrine to criminal procedure issues, demonstrating the doctrine’s utility in this domain.  We conclude that the Supreme Court’s aversion to using the unconstitutional conditions doctrine in its criminal procedure docket rests not on a principled doctrinal distinction, but on a failure to take seriously the constitutional predicaments facing those charged with crimes.  In accordance with its obligation to render equal justice under law, the Court must apply the unconstitutional conditions doctrine in this most critical area.

With pandemic legally winding down, should Congress build in CARES Act success to greatly expand BOP home confinement authority?

The question in the title of this post is prompted by this notable new Forbes piece by Walter Pavlo headlined "Bureau Of Prisons Sees End Of Cares Act Home Confinement, Some Prisoners Will Be Left Behind."  I recommend the full piece, and here are excerpts (with links from the original):

The CARES Act provided funding for the United States to tackle the COVID-19 pandemic, but it provided the Federal Bureua of Prisons (BOP) a means to both reduce crowding in federal prisons and place some minimum security prisoners with underlying health conditions on home confinement to complete their sentences. Over 12,000 prisoners have successfully been transferred to home confinement under the CARES Act and few have violated the conditions that returned them to prison. The Office of Legal Counsel determined that BOP’s preexisting authorities did not require that prisoners in extended home confinement be returned en masse to correctional facilities when the emergency period ends. Now, the Biden Administration has called for the end of national emergency and public health emergency associated with the COVID-19 pandemic on May 11, 2023 and that will mean that some prisoners will not see the benefit of home confinement.

The Federal Register published a draft of the final rule to end CARES Act home confinement in June 2022.  Comments and the final rule itself are now at the White House and will soon be published. In the draft proposal, the Department of Justice indicated that the BOP would stop home confinement placements of prisoners 30 days after the emergency period ends, so mid-June 2023.

As the program sunsets, one would think the BOP is slowing transfer of some prisoners to home confinement under CARES Act, but not so. Randilee Giamusso, who works at the BOP’s Office of Public Affairs gave a statement that, “The Bureau of Prisons (BOP) has not made efforts to slow CARES Act home confinement placements as the end of the CARES Act approaches. We have issued no guidance regarding this matter.”  That is welcome news to prisoners who meet the eligibility requirements for CARES Act placement.

Many are also hoping that the DOJ extends the 30 days after the end of CARES Act to something that takes into consideration the success of the program and the conditions of prison.  Maureen Baird, retired BOP Warden, told me in an interview, “Prisons are communal settings where contagion is always a concern.  I think the BOP has gone to great measures to try to avoid that contagion and one of the most successful measures has been CARES Act home confinement.”...

The CARES Act demonstrated that a select group of prisoners could be identified and successfully placed in community settings for an extended portion of their sentence.  There are currently prisoners on CARES Act who still have over 5 years remaining on their prison term who are under strict terms of home confinement and subject to being returned to an institution in the event of failing to live up to those terms.

Though it makes sense to wind down the pandemic-driven authority to transfer certain persons from federal prison to home confinement, Congress and the US Sentencing Commission and the Justice Department should carefully study the the apparent success of this CARES Act program and consider ways to give BOP broader authority in non-pandemic times to move low-risk prisoners into home confinement. As highlighted by some posts below about the CARES Act, it seems that great use of home confinement might help reduce recidivism, save taxpayer money, facilitate greater reentry success for offenders and advance other important goals. Of course, home confinement needs to uses efficiently and effectively, though if we can do that during a pandemic, I would hope we can also do it at other times.

Some prior related posts:

• Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption
• Another encouraging report on those released under federal CARES Act
• Celebrating "real" recidivism is essentially nil, and even technical violations stunningly low, for CARES home confinement cohort
• More notable details on the remarkable success of those released from federal prison under CARES Act  
• Spotlighting again the decarceral success of the CARES Act 

New CRS piece reviews circuit split over justifications for revoking supervised release

A helpful reader alerted me to this notable new "Legal Sidebar" from the Congressional Research Service.  As suggested by the title, "Can Retribution Justify the Revocation of Supervised Release? Courts Disagree," the piece details a jurisprudential divide among the circuits for the justification for supervised release revocation.  Here is how the five-page report begins:

What are the legitimate reasons that a government may subject an individual to criminal punishment?  Western penological theory and American legal history generally identify four principled bases for criminal punishment: retribution, deterrence, incapacitation, and rehabilitation.  The Sentencing Reform Act (SRA) requires federal courts to impose an initial sentence that reflects these purposes of punishment.

The SRA also authorizes federal courts to sentence defendants to supervised release, encompassing a set of conditions that the defendant must comply with upon release from prison for a period of time (or, for some offenses, for up to life).  A defendant’s compliance with these conditions is “supervised” or monitored by a federal probation officer.  If a defendant violates a condition, the court may revoke the supervised release and send the defendant back to prison, among other things.  The SRA lists deterrence, incapacitation, and rehabilitation among the factors that a judge must consider in making these revocation determinations.  The SRA does not, however, expressly include retribution as one such factor.

The federal appeals courts disagree as to whether, and to what extent, retribution may justify the revocation of supervised release in light of this statutory omission.  On one side of the divide, the U.S. Courts of Appeals for the First, Second, Third, Sixth, and Seventh Circuits have held that federal courts may consider retribution in making revocation decisions.  On the other side, the Fourth, Fifth, and Ninth Circuits have concluded that courts either may not consider retribution in these decisions at all or may consider it only to a limited degree.

This Sidebar summarizes the four purposes of punishment, including retribution; offers an overview of supervised release; and summarizes the aforementioned split.  The Sidebar concludes with congressional considerations.

Brennan Center publishes "A Proposal to Reduce Unnecessary Incarceration: Introducing the Public Safety and Prison Reduction Act"

The folks at the Brennan Center for Justice have a new report available here authored by Hernandez D. Stroud, Lauren-Brooke Eisen, and Ram Subramanian titled "A Proposal to Reduce Unnecessary Incarceration: Introducing the Public Safety and Prison Reduction Act."  Here is part of the report's introduction:

According to a 2016 Brennan Center for Justice report, nearly 40 percent of the U.S. prison population is incarcerated without any compelling public safety justification. Incarceration degrades people’s humanity, disrupts their social networks, and causes lifelong social and financial disadvantage through restricted access to education, jobs, and housing.  It also devastates families and communities, disproportionately affecting society’s most marginalized segments.

Reforms have reduced the population behind bars from its 2009 peak, yet an astonishing level of incarceration persists: today over 1.2 million people are confined to federal and state prisons, and just over 636,000 more are locked up in local jails.  Few states have achieved significant reductions in their prison populations, and in some places these populations have begun to grow again.

For a half century, the federal government has harnessed its grant-making power to spur states to incarcerate more people and to impose longer sentences, making the United States the most punitive country in the world.  It can now use that same funding power to reverse course.  The idea of using federal funding to reduce incarceration is not new, but recent programs have had mixed results.  For example, between 2010 and 2017, the U.S. Department of Justice’s Justice Reinvestment Initiative (JRI) provided state and local governments with technical assistance and direct funding to reduce their prison populations.  But this funding did not always produce the intended outcome....

Yet since assuming office in 2021, the Biden administration, while retaining JRI’s focus on recidivism reduction, now specifically allows grant money to support efforts to reduce incarceration for new crimes or technical violations of community supervision.  And more recently, in August 2022, as part of his 2023 budget proposal to Congress, President Biden unveiled a grant program called Accelerating Justice System Reform, which would dedicate $15 billion over 10 years for jurisdictions to implement crime prevention and public health approaches to public safety.

Building on this momentum, the Brennan Center for Justice calls on Congress to enact a new, $1 billion federal funding program, called the Public Safety and Prison Reduction Act, to channel money to states with the goal of reducing unnecessary incarceration while promoting humane and fair criminal-justice policies that preserve public safety.  The proposal, based on a previous Brennan Center policy solution — the Reverse Mass Incarceration Act — was crafted in consultation with a variety of stakeholders, including formerly incarcerated individuals.

Maricopa County prosecutor joins victims' group in challenging new Arizona Gov's pledge not to go forward with scheduled execution

As reported in this local article, headlined "'No law allows it': Maricopa County prosecutor challenges Gov. Hobbs' refusal to proceed with execution," notable litigation is afoot over execute powers and execution plans in the Grand Canyon State.  Here are the interesting details (with links from the originals):

Gov. Katie Hobbs faces a court fight over whether she can block a scheduled execution. 

Maricopa County Attorney Rachel Mitchell joined a crime victims' rights group Monday in asking the Arizona Supreme Court to order Hobbs to carry out the execution of convicted murderer Aaron Gunches.  "No law allows the governor to unilaterally suspend executions," Mitchell's court brief said....

The amicus brief supports the Arizona Voice for Crime Victims' petition for special action by the high court, filed on behalf of Karen Price, sister of Gunches' murder victim, Ted Price. 

Two weeks ago, Hobbs said the state wouldn't proceed with executions until her office's review of death-penalty procedures was complete.  The day before, the state Supreme Court had granted an execution warrant for Gunches with a date of April 6.

The first-term Democratic governor issued an executive order in January establishing a death penalty review commission. She cited questions about the Department of Corrections execution protocols and lack of transparency.  Democratic Attorney General Kris Mayes immediately paused executions. 

In her brief, Mitchell noted the "current execution protocol is the product of extensive litigation and multiple settlements with death row inmates."

Prior recent related posts:

• Different approaches to death penalty administration from different governors 
• New Arizona Gov pledging not to allow new scheduled execution to go forward

"Panicked Legislation"

The title of this post is the title of a new article authored by Catherine Carpenter which I missed when first posted here on SSRN, but now can be found in final form in print here at the Notre Dame Journal of Legislation.  Here is its SSRN abstract:

We are in the throes of a moral panic. It is not the first time, nor will it likely be the last, but it is among the most enduring.  Dubbed the sex panic, it has bred widespread and ever-escalating legislation, impacted the lives of more than a million people and their families, and caused public hysteria and violence.  And unlike other moral panics in our history that dissipated over time, there are no signs that the sex panic is diminishing.  Indeed, this panic grows more virulent with each passing year.

Panicked legislation is both the symbol and the result of a moral panic.  The article is uniquely situated, linking both social science and legal theories to offer a dynamic account of the world of moral panics, the mythical narratives that support them, and the inaccurate risk management assessment that plagues them.  It is ultimately a cautionary tale of hastily-crafted and fear-driven legislation that is fueled by the public’s distorted fear of a targeted group of people.

With a public unable or unwilling to hear the evidence, and political actors invested in their electorate, this article urges judicial intervention through the Irrebuttable Presumption Doctrine to challenge statutory schemes that are based on false assumptions that masquerade as universal truths.

"The (Immediate) Future of Prosecution"

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

Even as others make cogent arguments for diminishing the work of prosecutors, work remains — cases that must be brought against a backdrop of existing economic inequality and structural racism and of an array of impoverished institutional alternatives.  The (immediate) future of prosecution requires thoughtful engagement with these tragic circumstances, but it also will inevitably involve the co-production of sentences that deter and incapacitate.  Across-the-board sentencing discounts based on such circumstances are no substitute for the thoughtful intermediation that only the courtroom working group — judges, prosecutors and defense counsel — can provide. The (immediate) future also requires prosecutors to do more to recognize the distinctive role they can play in combating illegitimate domination.

LWOP for NYC terrorist Sayfullo Saipov as jury unable to return unanimous death sentence verdict for his mass murder

As reported in this new New York Post piece, "West Side Highway terrorist Sayfullo Saipov will serve life in prison after a Manhattan federal court jury could not unanimously agree to sentence him to death for killing eight people and wounding several others in an ISIS-inspired rampage."  Here are more of the particulars of another high-profile case in which a jury did not all vote for a death sentence:

The jury’s failure to reach a unanimous verdict — necessary to impose the death penalty — on Monday ended a dramatic, months-long trial that saw surviving victims tearfully testify about the horror of his attack and the killer’s family members urge jurors to spare his life.

Saipov was convicted in January of fatally mowing down eight people along a West Side Highway bike path on Halloween 2017 in a rented Home Depot truck. During the penalty phase of the trial, prosecutors questioned a host of witnesses – including surviving victims and family members of those slain – to show jurors the horrific violence carried out by Saipov.

Assistant US Attorney Alexander Li told jurors during the guilt phase of the trial that Saipov smiled, gave a “proud confession” and requested an ISIS flag to hang in a hospital room where he was being treated after the attack....

The jury convicted Saipov on 28 counts — nine of which carried the possibility of the death penalty — hours after they began deliberations on Jan. 26.  The conviction triggered the penalty phase of the case — which functioned like another full trial, where prosecutors and defense attorneys questioned witnesses, presented evidence and delivered opening and closing arguments.

During the penalty phase, family members of those killed described in painstaking detail how they’ve been devastated by the loss of their loved ones. The emotional testimony was referenced in prosecutors’ dramatic closing argument on March 7 as they urged jurors to condemn Saipov.   “The defendant caused unbearable pain to these families. They are still suffering,” Assistant US Attorney Amanda Houle told jurors in her closing. 

“Has the government proven aggravating factors that show that the way that this defendant chose to commit murder, by terrorist attack and the unremorseful slaughter of innocent civilians. Does that make his crime worthy of a harsher penalty?” Houle asked jurors.   “The evidence shows overwhelmingly that it does,” she said.  Houle then described the testimony jurors had heard about how families of the slain victims had been upended by the terrorist attack....

Saipov’s defense attorneys had sought to humanize him by questioning his family members on the stand, most all of whom broke down in tears when they told the jury they still loved him — despite what he had done. The defense’s penatly-phase case reached a dramatic peak when his father, sobbing uncontrollably, told jurors he still loved his son “with all my heart” from the witness stand.

The testimony prompted Saipov’s uncle, who was seated in the gallery of the courtroom, to stand up and begin shouting in Uzbek. “Dirty ISIS bastards!” the man yelled in Uzbek before slamming his fist on a courtroom door and walking out of the room.

In an impassioned closing argument, Saipov attorney David Patton repeatedly told jurors they face a “unique, individualized, moral decision” in whether or not to sentence the terrorist to death. “That is an awesome responsibility and power, and we are asking you to decide for life, to decide that the appropriate moral decision here is life,” Patton said. “It is not necessary to kill Sayfullo Saipov, not for our safety or anyone else’s and not to do justice,” Patton said.

Prior related posts:

• Will NYC terror attack become the first big federal capital case for Trump's Department of Justice?
• "Trump labels US justice system 'laughing stock' "
• Is Prez Trump making a capital prosecution for NYC terror killer harder with his death penalty tweets
• Federal judge rejects Sayfullo Saipov's efforts to block capital prosecution based on Prez Trump's tweets
• Noting that the Biden Administration in a high-profile case "has decided to continue to seek the death penalty" 

New Mexico seemingly poised to be latest state to elimination juvenile LWOP (after new press report about lost juve LWOPers)

This local press piece, headlined "Proposal to end juvenile life sentences in New Mexico on its way to governor," reports on notable new legislative developments in Land of Enchantment.  Here are some details:

In the early-morning hours Monday, the state House signed off on legislation that would abolish the possibility of a life sentence without parole for someone who committed a serious crime before they turned 18.  It would ensure that juveniles sent to prison would get a parole hearing 15 to 25 years into their sentence, depending on the severity of the underlying conviction.  Release wouldn’t be guaranteed, just a parole hearing.

The proposal picked up more support this year among legislators — following the failure of a similar proposal last year — and is now on its way to the desk of Gov. Michelle Lujan Grisham.  “A lot of meaningful work has happened in people’s hearts this year,” Long said in an interview.

She was in the gallery as the House took up debate on the proposal about 11pm Sunday and adopted the measure at 2:15am Monday, the last approval necessary to send it to the governor.  The House passed the bill on an 37-25 vote.  “Children are works in progress,” said House Majority Leader Gail Chasey, D-Albuquerque, “and we need sentencing options that leave room for their potential to experience positive transformations.”

Republican lawmakers blasted the proposal. Some crimes, they said, are so heinous that a parole hearing shouldn’t even be possible.  Rep. Stefani Lord, R-Sandia Park, said the hearings will reopen trauma for families.  “I don’t see how this is good for grieving parents or our community,” she said....

In the Senate, six Republicans support the bill. But the House vote was along party lines, with Democrats in favor and Republicans opposed. A year ago, the proposal died in the House without reaching the floor for a vote by the full chamber.

This year’s proposal makes changes intended to address the opposition. It establishes a tiered schedule of parole hearings based on the severity of the crime, rather than calling for hearings at 15 years across the board. And this year lawmakers have encountered plenty of advocates in person, including parents speaking about their own children and young adults sharing stories of redemption....

About 75 people would be affected by the bill, according to the American Civil Liberties Union of New Mexico, making them eligible for parole earlier than they would otherwise....  If approved by the governor, New Mexico would become the 27th state to end juvenile life sentences without parole, according to the Sentencing Project, an advocacy group.

Interestingly, ProPublica has this notable recent piece about juvenile LWOPers in New Mexico headlined "New Mexico Has Lost Track of Juveniles Locked Up for Life. We Found Nearly Two Dozen."  Here are short excerpts from the lengthy piece:

Gov. Michelle Lujan Grisham’s office has indicated that she will likely sign the legislation, if it is passed, by early April; it would go into effect this summer. In the meantime, officials in her administration could not answer basic questions about the number of prisoners affected and were unclear about which office is responsible for maintaining that information.

Carmelina Hart, spokesperson for the corrections department, initially sent ProPublica the names of 13 people in New Mexico’s prison system who were sentenced to life as children, which she said was the extent of the cohort. But a disclaimer below the list read, “Due to inconsistencies and mistakes over decades of data entry, as well as ensuing attempts of varying success to fix previous inaccuracies over that time, it is virtually impossible to conclude that all of these data are entirely correct.”...

Hart emphasized that the agency does have records of every person serving in its facilities, and that if the bill becomes law, NMCD will take the appropriate steps to ensure that it is in compliance....

One subset of New Mexico’s juvenile lifers who seem to have been disproportionately forgotten are those serving their time in out-of-state prisons.  Jerry Torres and Juan Meraz, for example, are both in the custody of the New Mexico Corrections Department for crimes they committed as juveniles in the state, yet they are locked up in Arizona — in a for-profit prison operated by the company CoreCivic.

Highlighting notable new Inquest essays looking "Beyond Gideon"

I continue to struggle to find time to keep up with all the commentaries posted at Inquest.  As regular readers know from my prior postings, Inquest bills itself as "a decarceral brainstorm," and it keeps churning out a wide array of essays on a wide array of criminal justice topics.  For example, a few weeks ago, a new essay by Jared Mollenkof focused on a new local prosecutor: " A Prosecutor’s Decarceral Potential: A new Minneapolis-area county attorney won’t end mass incarceration. But she has the chance to cause less harm and promote healing."

Capturing my attention this morning is a new Inquest series titled "Beyond Gideon," which is described as a "collection of essays examining how — or whether — public defenders can meaningfully contribute to the end of mass incarceration."  Here is part of how the series is set up here:

In the struggle against the harms of the carceral state, Inquest recognizes the limits of the public defense system — and of other actors in the criminal legal system.  Yet we also recognize that public defenders, by being among the closest to the people and communities harmed by mass incarceration, have a valuable role in working toward a world without it.  By running for office, advocating for decarceral legislation, and getting the attention of the Supreme Court, public defenders can — and do — fight for change.

Beyond Gideon is our attempt to broaden this lens.  In this series, we address questions about the role of public defense in challenging mass incarceration, and the conversations required to move that work forward.

We open with a reading list of archival essays examining how public defenders fit in the current system.  Over the next two weeks, in recognition of the sixtieth anniversary of the Gideon ruling, we will add a five-part series of new essays from people invested in thinking through the role of public defenders in bringing about a decarceral future.

There are two new essays already now available on the Inquest site, and here are the titles and links:

By Premal Dharia, "Gideon Turns Sixty: The Court’s decision must not preempt questions about the role public defenders can play in ending mass incarceration."

By Alexis Hoag-Fordjour, "Choice of Counsel: People assigned a public defender are the only ones deprived of the right to choose their lawyer.  This often intersects disastrously with racial bias."

Spotlighting DOJ support for proposed guideline amendment suggesting downward departure for criminal history involving marijuana possession

The folks over at Marijuana Moment have this effective new piece, headlined "Justice Department Backs Proposed Marijuana Sentencing Guideline Reform To Treat Past Convictions More Leniently," that flags the support from DOJ for a not-insignificant small proposed amendment to the federal sentencing guidelines criminal history rules.  Here are excerpts (with links from the original):

The Justice Department is backing a proposal to update a federal commission’s sentencing guidelines suggesting that judges treat prior marijuana possession offenses more leniently, arguing that it aligns with the Biden administration’s “sentiment” toward cannabis policy.  Members of the federal U.S. Sentencing Commission (USSC) voted to propose the amendment in January. And at a public hearing on Wednesday, a federal prosecutor testified on behalf of DOJ in support of the cannabis item.

As it stands, federal judges are directed to take into account prior convictions, including state-level cannabis offenses, as aggravating factors when making sentencing decisions. But as more states have moved to legalize marijuana, advocates have pushed for updated guidelines to make it so a person’s marijuana record doesn’t add criminal history points that could lead to enhanced sentences in new cases.

USSC’s proposal doesn’t seek to remove marijuana convictions as a criminal history factor entirely, but it would revise commentary within the guidelines to “include sentences resulting from possession of marihuana offenses as an example of when a downward departure from the defendant’s criminal history may be warranted.”...

Jonathan Wroblewski, director of DOJ’s Office of Policy and Legislation, said in written testimony that the department “supports the proposed amendment” on revising the marijuana sentencing guidance....  Phillip Talbert, U.S. attorney for the Eastern District of California, reiterated that position in oral testimony before members of the commission during Wednesday’s public hearing.

“The department supports including convictions for the simple possession of marijuana, without an attempt to sell or distribute, as grounds for downward departure,” he said. “The commission’s proposal is consistent with the president’s views that no one should be in jail for the simple possession of marijuana and his pardon proclamation. It will also account for the many jurisdictions that have decriminalized personal use marijuana possession.”...

Not all witnesses at the commission’s Wednesday hearing supported the marijuana change, however.  The Probation Officers Advisory Group, which was established by the commission itself, said in written testimony that it “does not believe guidance is necessary for determining whether a downward departure is appropriate for defendants who receive criminal history points for simple marijuana possession offenses.”  The group pointed out that “the possession of marijuana has not been legalized federally and that state laws pertaining to marijuana vary greatly and are continually evolving, such that these measures may create greater sentencing disparities.”...

USSC separately released a report in January showing that hundreds of people received more serious federal prison sentences in the last fiscal year because of prior cannabis possession convictions in states that have since reformed their marijuana laws.  While federal marijuana possession cases have declined dramatically since 2014 as more state legalization laws have come online, the report highlighted the long-term consequences of cannabis convictions in terms of federal sentencing.

Some prior recent related posts:

• US Sentencing Commission publishes proposed guideline amendments and issues for comment 
• US Sentencing Commission provides "Public Data Briefing: Proposed 2023 Criminal History Amendment"
• US Sentencing Commission releases "Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System"

"The Poor Reform Prosecutor: So Far From the State Capital, So Close to the Suburbs"

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

Given the undeniable role that prosecutorial discretion has played in driving mass incarceration, it makes sense to turn to them to scale it back as well.  This has certainly been a central motivation of the progressive/reform prosecutor movement that started in the late 2000s.  And while this movement has had some notable successes, recent years have shed some important light on the limits it faces as well.  In this essay, I want to focus on how the county-ness of prosecutors hems in their power from two different directions.

On the one hand, as county officials, prosecutors — at least in most major urban areas — have a large number of constituents who live in the suburbs and regularly oppose reforms … of policies that by and large do not affect them. It’s telling that many, if not most, reform prosecutors have been elected in counties that either have no suburbs at all within their borders (Philadelphia, Baltimore, St. Louis) or where the suburbs are a small fraction of the overall population (Boston, Portland).  It’s clear across a wide range of cities that the core support for reform DAs comes from Black communities with high levels of violence, i.e., the communities that bear the brunt of DA decisionmaking.  The more suburban voters in a county, however, the more diluted those voices become.

On the other hand, as county officials, prosecutors operate at the mercy of state officials, who have a wide range of powers for clipping their wings: legislatures can give state AGs concurrent jurisdiction, for example, and in many places governors can remove elected DAs or take their cases away from them.  While states are shielded from (some) federal interventions by the 10th Amendment, county officials have no such protection, as reform DAs in GOP-controlled states are increasingly beginning to discover.

My argument here is not one for nihilism.  Even with these limits, the so-called “progressive prosecutor” movement can (and has!) accomplish quite a lot.  But these constraints are very much real constraints, and ones that defy any sort of easy (or perhaps just any) policy fix.  It is essential to map out what these limits look like, the constraints they impose, and what they mean for reform efforts going forward.

With Prez Biden's blessing, majority of Senate Dems vote to reject DC criminal code reforms

The state of federal politics on crime and punishment came to the fore this week as the US Senate voted last night on whether to reject a proposed new District of Columbia criminal code.  This New York Times piece, headlined "Senate Clears Bill to Block D.C. Crime Law, Sending It to Biden After Reversal."  Here are excerpts:

The Senate on Wednesday voted overwhelmingly to block a new District of Columbia criminal code that reduces mandatory minimum sentences for some violent offenses, with Democrats bowing to Republican pressure to take a hard line on crime in a move that underscored the rising political potency of the issue ahead of the 2024 elections.

The 81-to-14 vote, with one senator voting “present,” cleared the Republican-written measure to undo the District’s law, sending it to President Biden, who after initially opposing it abruptly changed course last week and said he would sign it.

It was a sudden turn of events for the District’s council and its overhaul of local sentencing laws. Just a few weeks ago, Mr. Biden weighed in against congressional action to block the measure, accusing Republicans of meddling in local affairs.

But the high-profile incidence of carjackings and homicides in the capital and growing nationwide evidence that voters were casting their ballots based on candidates’ response to violent crime spurred a rapid retreat.  Dozens of House Democrats joined Republicans in opposing the District’s criminal code, and a growing number of Senate Democrats signaled they were inclined to follow suit, prompting Mr. Biden’s turnabout.

On Wednesday, 31 Democrats and two independents joined Republicans in supporting a resolution of disapproval of the criminal code, sending it to the president for his signature. Senator Raphael Warnock, Democrat of Georgia, voted “present.”

Republicans, using the authority of Congress to review all District laws, forced the showdown in an effort to paint Democrats as weak on law enforcement. They said the outcome demonstrated that any trend toward leniency was at an end. “We need to make certain that we send a strong message that the American public have had it with crime in America,” said Senator Bill Hagerty of Tennessee, the chief Republican author of the resolution. “The crime spree that is happening in our major cities must come to an end.”

But if Democrats were hoping that their opposition to the new criminal code would stop Republican attacks on their party’s image on crime in next year’s elections, they were likely to be disappointed based on comments made by Senator Mitch McConnell, Republican of Kentucky and the minority leader.  “Nobody will confuse Washington Democrats’ last-minute reversal on this one resolution for a road-to-Damascus moment on the crime issue,” Mr. McConnell said. “The American people are a lot smarter than that.”...

Local officials lamented the interference and even tried to pull back the criminal code before it was rejected by the Senate.  But the process to block it had already been set in motion, and Congress ignored the attempt to short-circuit the outcome.

The rewrite of the criminal code, which was years in the making, had split local officials as well.  The law was vetoed by Mayor Muriel E. Bowser, who was overridden by the District council. Her opposition, however, opened the door to Democrats abandoning their usual support of the District and voting in favor of overturning the law.

The White House’s handling of the issue angered House Democrats, who felt they were hung out to dry by the president after he said early last month that he would oppose the resolution of disapproval.  As a result, when the matter came before the House in early February, most Democrats backed the District council and voted against the effort to rescind the sentencing package, believing they were siding with the president, who would veto it.

Instead, Mr. Biden arrived on Capitol Hill last week and told Senate Democrats in a private luncheon that he would sign the measure if it reached his desk, undercutting House Democrats and District officials.  He said the crime legislation had gone too far even though he supported autonomy for the District of Columbia.  White House officials noted that the president had never explicitly pledged to veto the measure, only that the administration opposed it.

Some Senate Democrats stood by the District and argued that its democratically elected officials should be free to write their own laws without being subjugated to Congress. Senator Cory Booker, a New Jersey Democrat who has been active on criminal justice issues, mounted a defense of the District’s law in a party luncheon on Tuesday, according to senators who attended....

But the president’s reversal, the mayor’s veto and rising public unease with violent crime drove most Democrats to rally behind blocking the law, including Senator Chuck Schumer of New York, the majority leader, as well as both senators from neighboring Virginia, Mark Warner and Tim Kaine.  Mr. Kaine is among the senators up for re-election next year.  Both Democrats from Maryland, the other adjoining state, Senators Benjamin L. Cardin and Chris Van Hollen, voted “no.”

I was not familiar enough with all of the particular of the proposed DC Code reform to have a detailed and nuanced view of its pros and cons.  But I am certain that very few member of Congress voted on this matter based on any nuanced particulars of the proposed DC Code reform.  This issue turned into a "tough" versus "soft" on crime vote (with a hint of DC independence), and the political winds — which Prez Biden feels and also impacts — blew this vote a particular way.  It will be interesting to see if and how this vote and these winds shape future policy and politics, not only with respect to the work of Congress but also as campaign 2024 picks up steam.

New Prison Policy Initiative briefing covers "Racial disparities in diversion: A research roundup"

I received word via email of this new Prison Policy Initiative briefing titled "Racial disparities in diversion: A research roundup."  Here is how it starts (with links from the original):

As the costs and impacts of mass incarceration continue to grow, along with increased public outrage on the issue, counties and municipalities are adopting a wide range of programs that divert people out of the criminal legal system before they can be convicted or incarcerated. Diversion programs exist to move people away from overburdened court dockets and overcrowded jails, while offering to connect them with treatment, and saving money in the process. This practice sounds like a win-win for communities — and it’s successful by many metrics — but as we explain in our 2021 report about diversion programs, their design and implementation greatly impact the outcomes for defendants. That report focuses on the stage of the criminal legal process at which diversion occurs, with the earliest diversions (i.e., pre-arrest) offering the most benefits.

This briefing builds on our previous work by examining how — like every other part of the criminal legal system — diversion programs are often structured in ways that perpetuate racial disparities. Here, we review key studies showing how people of color who are facing criminal legal system involvement are systematically denied or excluded from diversion opportunities. This inequity has a ripple effect, contributing to the troubling racial disparities we see elsewhere, in pretrial detention, sentencing, and post-release issues like homelessness and unemployment. We conclude that policymakers and practitioners involved in diversion programming must address the cost, eligibility requirements, and discretionary decision-making to offer these vital opportunities in a racially equitable way.

Please note that because existing research is largely centered around prosecutor-led diversion programs, this briefing and its recommendations are, too. Prosecutors hold immense power in their decisions to file or dismiss charges, release pretrial defendants, and recommend sentences; in this way prosecutors are arbiters of racial fairness in the criminal legal system, in part through diversion.

DOJ testimony to Sentencing Commission on acquitted conduct sentencing generates notable responses

A few weeks ago, the Justice Department testified to the US Sentencing Commission that is was generally against efforts to amend the guidelines to significantly curtail the consideration of acquitted conduct at federal sentencing (hearing here, written testimony here).  This week, that testimony has generated some notable responses. 

Specifically, this new Reuters commentary by Hassan Kanu, headlined "U.S. Justice Dept takes a hard line on sentencing reform," laments that DOJ's position on this issue "does not square with agency leadership and President Joe Biden’s forceful commitments to addressing racism in the justice system and reducing mass incarceration."  And, perhaps even more notable, the lawyers representing Daytona McClinton in one of the acquitted conduct cases pending before SCOTUS filed this short new supplemental brief with the Court. (Regular readers know that last year I filed an amicus brief on the acquitted conduct issue in support of petitioner Dayonta McClinton.)  Here are some snippets from the new supplemental brief:

In its brief in opposition, the government argued that “[t]his Court’s intervention” was not “necessary to address” the widespread problem of acquitted-conduct sentencing because “the Sentencing Commission could promulgate guidelines to preclude such reliance.” Br. in Opp. 15.  In January 2023, the Sentencing Commission introduced preliminary proposed amendments that would, if adopted, place modest limitations on federal courts’ consideration of acquitted conduct in sentencing....

In urging the Sentencing Commission to reject the proposed amendments, the government began its argument with a broad reading of United States v. Watts, 519 U.S. 148 (1997) (per curiam).  The government argued that the Commission’s proposal to “[c]urtail[] the consideration of acquitted conduct at sentencing would be a significant departure from long-standing sentencing practice” because this “Court has continued to affirm that there are no limitations on the information concerning a defendant’s background, character, and conduct that courts may consider in determining an appropriate sentence.” Gov’t Views at 12-13.

That expansive reading of Watts is deeply at odds with the far more limited understanding the government has presented to this Court....  The government also appears to have reversed its position on whether “the Sentencing Commission could promulgate guidelines to preclude such reliance.” Br. in Opp. 15. In oral testimony to the Commission in February, the government argued that “[t]he Commission’s proposal is unfortunately inconsistent with [18 U.S.C. § 3661],” a statute governing sentencing law....

Even as the government urges this Court that other mechanisms exist to address a controversial sentencing practice that a host of distinguished jurists have criticized, see Pet. 11-15; Br. of 17 Former Federal Judges as Amici Curiae 1, the government simultaneously invokes a disputed reading of the quarter-century-old per curiam opinion in Watts to defeat even the most modest efforts at reform.  And contrary to its assurances to this Court, it now contends that the Sentencing Commission lacks authority to promulgate amendments addressing the practice.

Absent further guidance from this Court, there is no reasonable prospect of ending acquitted-conduct sentencing, even at the federal level.  And absent this Court’s review, there is no prospect of the practice ending at the state level, which comprises “the vast majority of criminal cases in the U.S.”

The Sentencing Project launches a "Second Look Network"

Regular readers should know that I am a big fan of second-look sentencing mechanisms, so I am also now a fan of a new "network" that I learned about via email today.  Here is a portion of the email (with links from the original):

The Sentencing Project is excited to announce the launch of the Second Look Network! The Second Look Network is a coalition of attorneys and post-sentence advocates across the country working on behalf of incarcerated individuals seeking relief from lengthy or unfair sentences.

The Network will facilitate the exchange of ideas and information between its members, and provide various opportunities for collaboration on effective litigation and mitigation strategies, host training sessions, and provide connections to experts and local policy efforts.  The Network will also provide communications and media support to its members. With support from Arnold Ventures, we are proud to create such a space to fill this need for the litigation community. 

To help build and maintain this Network, The Sentencing Project has welcomed a Director and Program Manager to our team.

Becky Feldman, Second Look Network Director

Becky is a post-conviction defense attorney and came to The Sentencing Project with 17 years of litigation and reentry experience on behalf of incarcerated people serving life sentences in Maryland prisons. 

Leyda Pereyra, Program Manager

Leyda is a social justice, equity and human rights advocate. Previously, Leyda served as an operational strategist and consultant to various campaigns that centered on health equity, economic empowerment, research and public policy through culturally responsive social justice frameworks.

We welcome you to learn more about the Network here. We also invite you to review the membership criteria, and, if applicable, apply to join us as we build this community.

I have written a whole lot about a broad array of second-look ideas and related issues in a a number of article through the years.  Here is a sampling of some of my major second-look related writings:

• "Re-Balancing Fitness, Fairness, and Finality for Sentences"
• "Reflecting on Parole's Abolition in the Federal Sentencing System"
• "Encouraging (and Even Requiring) Prosecutors to be Second-Look Sentencers"
• "Leveraging Marijuana Reform to Enhance Expungement Practices"
• "Turning Hope-and-Change Talk Into Clemency Action for Non-Violent Drug Offenders"
• "Exploring the Theory, Policy and Practice of Fixing Broken Sentencing Guidelines"
• "The Enduring (and Again Timely) Wisdom of the Original MPC Sentencing Provisions"

"Recommended but Rarely Followed: Downward Departures of the Federal Sentencing Guidelines Among Child Pornography Offenders"

The title of this post is the title of this student comment authored by Madison Flores and recently posted to SSRN.  Here is its abstract:

In the last fifteen years, the online sexual exploitation and abuse of children has increased by 422% worldwide.  However, despite having a recommended federal sentencing guideline system, district judges routinely fail to impose sentences concerning child-pornography offenses within those guidelines, often believing they are too harsh.  In response to the growing epidemic of the lackluster application of the federal sentencing guidelines by judges, this Comment explores and analyzes the federal sentencing guidelines structure; examines the factors judges use when sentencing; reviews case studies from several circuits in the United States showcasing the egregious disparities; evaluates how pre-sentence reports affect guideline ranges; and analyzes sentencing trends across the federal circuits.

The current structure leads to sentencing disparities throughout the federal system for similarly situated defendants. Whether defendants will receive fifteen, ten, or five years rests solely on the moral standards of the judges they stand before.  This Comment strongly suggests that federal courts more closely follow the sentencing guidelines set forth by Congress to protect those most vulnerable: the children.

Five months after mass marijuana possession pardons, DOJ announces application form for certificates

Back in October 2022, as detailed here, Prez Biden granted a mass pardon to "all current United States citizens and lawful permanent residents who committed the offense of simple possession of marijuana in violation of the Controlled Substances Act, as currently codified at 21 U.S.C. 844 and as previously codified elsewhere in the United States Code, or in violation of D.C. Code 48–904.01(d)(1), on or before the date of this proclamation."  But, perhaps problematically for some, a mass pardon done not readily come with the certificate or other official documentation that individuals often received when receiving a more traditional, individualized grant of clemency. 

To address this issue, I had heard that the Pardon Attorney office in the US Justice Department was working on a process to issue pardon documentation.  And, this past Friday, this DOJ press release addressed this matter under the heading "Justice Department Announces Application Form for Marijuana Pardon Certificates."  Here are the particulars (with links from the original):

[T]he Justice Department is launching an application for eligible individuals to receive certificate of proof that they were pardoned under the Oct. 6, 2022, proclamation by President Biden.  On Oct. 6, 2022, the President announced a full, unconditional and categorical pardon for prior federal and D.C. offenses of simple possession of marijuana.  The President’s pardon lifts barriers to housing, employment and educational opportunities for thousands of people with those prior convictions. President Biden directed the Justice Department to develop a process for individuals to receive their certificate of pardon.

The online application will be available on the Office of the Pardon Attorney’s website: Application for Certificate of Pardon.  The web form allows eligible persons to submit documentation to the Office of the Pardon Attorney and receive a certificate indicating the person was pardoned on Oct. 6, 2022, for simple possession of marijuana.

The President’s pardon, effective Oct. 6, 2022, may assist pardoned persons by removing civil or legal disabilities — such as restrictions on the right to vote, to hold office or to sit on a jury — that are imposed because of the pardoned conviction.  The application released today may also be helpful as proof of pardon for those who seek to obtain licenses, bonding or employment.  As President Biden said at the time of the proclamation, his action intends to “help relieve the consequences arising from these convictions.”  

Those who were pardoned on Oct. 6, 2022, are eligible for a certificate of pardon.  Consistent with the proclamation, to be eligible for a certificate, an applicant must have been charged or convicted of simple possession of marijuana in either a federal court or D.C. Superior Court, and the applicant must have been lawfully within the United States at the time of the offense. Similarly, an individual must have been a U.S. citizen or lawful permanent resident on Oct. 6, 2022.

Those who were convicted of state marijuana offenses do not qualify for the pardon.

The department is committed to carefully and expeditiously reviewing the applications and issuing certificates to those pardoned under the proclamation. For more information regarding eligibility and answers to frequently asked questions, please visit Presidential Proclamation on Marijuana Possession.

Prior related posts from October 2022:

• October surprise: Prez Biden announces he is "pardoning all prior federal offenses of simple marijuana possession"! Wow!
• A few more details about President Biden's mass pardon of federal offenses of simple possession of marijuana
• Rounding up a few (of many) reactions to Prez Biden's marijuana possession pardons
• Prez Biden's one miss in his marijuana moves: failing to urge Congress to move on federal record relief mechanisms
• US Sentencing Commission produces "additional analyses" of those receiving federal marijuana possession pardons

US Sentencing Commission soon to begin second set of public hearings on proposed guideline amendments

As first flagged in this post a couple of weeks ago, for sentencing fans looking for binge-worthy viewing and reading, the U.S. Sentencing Commission is still in the midst of its series of public hearings concerning  its many proposed amendments to the US Sentencing Guidelines.  The first hearings, which took place on February 23 and 24, can still be watched in full via the now-achieved live-streamed recording at this link.  That link also has all the witness written testimony for a full 25 witnesses for the first two days of public hearings where "the Commission [received] testimony on proposed amendments to the federal sentencing guidelines related to Compassionate Release, Sex Abuse of a Ward, and Acquitted Conduct."

The second set of hearing as this week, taking place on  March 7 and 8, and the link here where folks can live-stream all the action explains that the "purpose of the public hearing is for the Commission to receive testimony on proposed amendments related to Firearms, Fake Pills and the First Step Act-Drug Offenses, Circuit Conflicts, Career Offender, and Criminal History."  For these two days, it appears that there is again another 25 witnesses scheduled to testify on all these topics, and it appears that all their written testimony is already linked.   And again, the Commission will be engaging with a bunch of big policy questions along with lots and lots of (consequential) guideline technicalities. 

Among the many reasons the Commission has such a challenging job, on one issue they have to work with (or around) a recent Supreme Court cert grant.  As the Commission has rightly noted in proposed amendments, the FIRST STEP Act's new safety-valve provision for sentencing in drug cases ought to be incorporated into the the guidelines in some way.  But the circuit courts are deeply divided on the interpretation of that statutory provision, which produced, as noted here, the SCOTUS cert grant in was Pulsifer v. United States.  But that case will not be argued until this coming fall, and very likely will not result in a SCOTUS ruling until probably Spring 2024.  The Commission can amend the guideline before and/or after the SCOTUS ruling, but should it try to guess where SCOTUS will go or instead try to now develop a guideline that can function independent from the statutory debate.

A few recent related posts:

• US Sentencing Commissions publishes proposed guideline amendments and issues for comment 
• US Sentencing Commission to begin series of public hearings on its proposed guideline amendments
• SCOTUS grants certiorari to review reach of FIRST STEP Act's expansion of statutory safety valve 

New Arizona Gov pledging not to allow new scheduled execution to go forward

As reported in this AP article, headlined "Arizona Gov. Katie Hobbs refuses to proceed with execution set by court," the new Arizona Governor is continuing to promise to block executions in her state pending a review of state execution protocols. Here are the basics:

Arizona Gov. Katie Hobbs vowed Friday that her administration won’t carry out an execution even though the state Supreme Court scheduled it over the objections of the state’s new attorney general.  The Democratic governor’s promise not to execute Aaron Gunches on April 6 for his murder conviction in a 2002 killing came a day after the state Supreme Court said it must grant an execution warrant if certain appellate proceedings have concluded — and that those requirements were met in Gunches’ case.

Last week, Hobbs appointed retired U.S. Magistrate Judge David Duncan to examine the state’s procurement of lethal injection drugs and other death penalty protocols due to the state’s history of mismanaging executions.  “Under my administration, an execution will not occur until the people of Arizona can have confidence that the state is not violating the law in carrying out the gravest of penalties,” Hobbs said in a statement Friday.

Attorney General Kris Mayes’ office has said it won’t seek court orders to carry out executions while Hobbs’ review is underway.  Mayes, a Democrat who took office in January, tried to withdraw a request by her Republican predecessor, Mark Brnovich, for a warrant to Gunches.  The court declined to withdraw the request on Thursday.

The court said Hobbs’ review “does not constitute good cause for refraining from issuing the warrant.”  Mayes’ office declined to comment on Hobbs’ promise not to carry out the execution next month. Hobbs maintains that while the court authorized Gunches’ execution, its order doesn’t require the state to carry it out.

Dale Baich, a former federal public defender who teaches death penalty law at Arizona State University, said Hobbs can use her authority as the state’s chief executive when the state believes it cannot carry out an execution in a constitutionally acceptable manner.  “What the governor did is not unique,” said Baich, who applauded Hobbs’ move. “Governors in Alabama, Ohio and Tennessee recently used their authority to pause executions because they had serious questions about the protocols in their states.”...

Arizona, which has 110 prisoners on death row, carried out three executions last year after a nearly eight-year hiatus following criticism that a 2014 execution was botched and because of difficulties obtaining execution drugs.  Since resuming executions, the state has been criticized for taking too long to insert an IV for lethal injection into a prisoner’s body in early May and for denying the Arizona Republic newspaper’s request to witness the last three executions.

Gunches is scheduled to be executed on April 6 for the 2002 killing of Ted Price, his girlfriend’s ex-husband, in Maricopa County. Gunches, who isn’t a lawyer, represented himself in November when he asked the Supreme Court to issue his execution warrant so justice could be served and the victims could get closure.  In Brnovich’s last month in office, his office asked the court for a warrant to execute Gunches.  But Gunches withdrew his request in early January, and Mayes asked for the execution warrant submitted during Brnovich’s tenure to be withdrawn.

"To Hemp in a Hand-basket: The Meaning of 'Controlled Substance' Under the Career Offender Enhancement"

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

Sentencing enhancements can drastically impact prison sentences for people convicted of federal crimes.  The career offender enhancement is particularly harmful to a federal criminal defendant because it automatically raises their minimum offense level and criminal history score under the U.S. Sentencing Guidelines, which, although no longer mandatory, are almost always followed by judges in determining actual prison sentences.  Since 2016, the career offender enhancement has been applied to almost 8,000 criminal defendants who, at the time of their convictions, had accrued a total of two or more predicate felony convictions, for either a drug offense or a crime of violence enumerated in the Guidelines.

Yet an active circuit split over the definition of a “controlled substance” means that defendants with identical criminal histories could face drastically different guideline sentences.  Because the Supreme Court’s categorical approach in Taylor v. United States prohibits the use of “overbroad” predicate convictions for sentencing enhancement purposes, the definition of “controlled substance” is consequential -- a state statute criminalizing a broader set of conduct than applicable federal law cannot trigger the career offender enhancement.

Four circuits (the Fourth, Seventh, Eighth, and Tenth) have held that “controlled substances” are defined by applicable state law, sidestepping the categorical approach.  In those circuits, a prior conviction for marijuana that includes hemp -- now legal federally and in many states -- can serve as a predicate offense for the career offender enhancement. Four other circuits (the First, Second, Fifth, and Ninth) have held that “controlled substances” are defined by the Controlled Substances Act (CSA).  In these circuits, overbroad marijuana convictions cannot serve as predicate offenses under the categorical approach because the CSA currently legalizes hemp, while most state statutes before 2018 included hemp as a possible basis for conviction.  As a result, criminal defendants in these circuits are spared many years on their prison sentences by avoiding a career offender classification.

This Note argues that the Supreme Court should adopt the latter approach and hold that the CSA defines controlled substance offenses.  This recommendation is grounded in analysis of the career offender enhancement’s text, context, purpose, and history.

Former BOP director talks up need for second step to follow up FIRST STEP Act

Hugh Hurwitz, who served as Acting Director of the Federal Bureau of Prisons from May 2018 to August 2019, has this notable new Hill commentary headlined "First Step Act was only half the job; now a ‘Second Step’ is needed." It is worth reading in full, and here are  excerpts:

The First Step Act (FSA) was a landmark achievement in the area of criminal justice reform.  It came at a time of partisan politics and a divided Congress and was the only significant bi-partisan legislation passed during the Trump administration....  I had a unique viewpoint at this time: I was Acting Director of the Bureau of Prisons (BOP) during the negotiations and ultimate passage of the FSA....  But how successful is it?  I argue it was a small start, hopefully, on the way to something bigger.

The FSA had two primary goals: 1) to reduce the overcrowded prison population in the BOP and 2) to provide incentives for people in prison to take recidivism reducing programs which will increase the likelihood that they will succeed upon their release and not return to prison.  In my opinion, the FSA succeeded wildly in number 1, and failed miserably in number 2.  So, in short, yes, we definitely need something bigger: a second step.

While up-to-date data has not been made available, it appears that somewhere between 10,000 and 20,000 people have already been released early under the FSA, with thousands more in the queue.  BOP is still calculating how people earn time credits, and they continue to release more in batches.  Based on those numbers alone, it is hard to argue that the FSA was not successful in reducing the prison population.

The primary incentive offered under the FSA is time credits for completion of recidivation reducing programs. Application of these time credits will allow some people to complete their sentence early and transfer to supervised release, and others to transfer early to halfway houses or home confinement.  The problem with the FSA is that while it incentivizes people to take recidivism reducing programs, the only people eligible for the coveted time credits are those already deemed to be minimum- or low-risk for recidivating.  Said another way, only people assessed as minimum- and low-risk for recidivism are eligible to earn time credits leading to early release. But those are not the people we should be incentivizing to take recidivism reducing programs.  The ones who truly need these programs are those deemed to be of medium or high risk of recidivating.  Aren’t those the people we should be focusing on?  But the FSA does not allow these people to earn time credits....

Let me be clear: I am not saying the FSA is a bad law.  On the contrary, it has resulted in increased program opportunities and other changes to our federal prison system, and it has reduced the number of people in federal prisons.  What I am saying is that the need for a Second Step is great, as people deemed medium or high risk of recidivating are released without the benefit of critical recidivism reducing programs.

About 95 percent of the people currently in our nation’s prisons will be released to our communities. They will be our neighbors.  Isn’t it imperative that we do all we can to ensure that upon release they have the skills, tools, and resources to be productive, law-abiding members of society?  We need Congress to act now, in another bi-partisan effort, to pass laws that will ensure everyone incarcerated today is incentivized and given access to programs that will help reduce their recidivism risk.

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

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

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

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

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

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

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

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

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

Prior related posts:

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

An interesting (and dubitante) SCOTUS argument in Dubin

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Revocation at the Founding"

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

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

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

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

Alabama officials ready to resume carrying out death sentences

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

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

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

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

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

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

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

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

There are currently 166 inmates sitting on Alabama Death Row.

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

Some prior related posts:

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

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

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

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

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

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

Cruising around some early commentary on Cruz v. Arizona

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Background

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

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

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

The full text of the legislation can be viewed here.

A few of many prior posts on the EQUAL Act:

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

Could Alabama have an execution using nitrogen gas in 2023?

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

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

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

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

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

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

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

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

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

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

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

New Pennsylvania Gov announces his capital punishment abolitionist plans

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

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

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

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

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

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

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

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

Some notable SCOTUS sentencing stories from the relist watch

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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