Category: Sentencing

Unconnected Mitigation Evidence in Capital Cases

by · May 30, 2024 4:35 pm

Today the U.S. Supreme Court reversed a decision of the Ninth Circuit in a capital case, Thornell v. Jones. All but one of the Justices agreed that the panel decision was wrong. The Ninth Circuit itself refused to rehear this rogue decision over the dissents of ten of its judges. This is such a common occurrence it is hardly even news. The most newsworthy aspect of the case is that a solid majority of the Supreme Court is finally showing skepticism about the value of “background” mitigating evidence that has nothing to do with the crime. This is a most welcome development, even if over 40 years late.

Claims of ineffective assistance of counsel are the weapon of choice for capital defense lawyers who want to retry their state-court cases in federal court. The most common line of attack is to find something about the defendant’s background that the trial lawyer did not present, proclaim it to be critical evidence that would have turned the whole case around, and denounce the trial lawyer as incompetent because he did not present it. The evidence need not have any substantial weight if the murderer wins the judge selection lottery and draws judges who approach every capital case as an exercise in searching for an excuse to overturn the sentence. Continue reading . . .

SCOTUS Unties ACCA Hemp Knot

by · May 23, 2024 11:19 am

In the Armed Career Criminal Act (ACCA), Congress prescribed severe punishment for people with extensive criminal records who violate federal gun laws. The priors are generally state offenses, so there is a problem matching up criminal laws from different jurisdictions. Under the “categorical” approach the Supreme Court has developed, mismatches often spring loose criminals whose actual conduct meets the definition of the crime that Congress sought to include, frustrating the intent of the law. The Supreme Court has had to decide many cases on this topic, and today’s decision in Brown v. United States is the latest installment.

This decision involves two cases, one from Florida and one from Pennsylvania. In both cases, the drug dealers in question dealt in drugs that remain illegal under federal law. Between the times of their state drug-dealing crimes and their federal weapons sentencing, though, the federal government narrowed its definitions of controlled substances so that the state and federal laws were no longer a perfect match. Should that get them off? Three justices voted for that undeserved escape on a technicality, but the majority of six did not. Continue reading . . .

Supreme Court Copes with Sloppy Drafting in the First Step Act

by · Mar 15, 2024 2:50 pm

In 2018, Congress passed the First Step Act to water down federal sentencing law. I was critical of many provisions of the act at the time, see here, here, and here, though I did agree that some sentences were too harsh and could use a bit of moderation. Mandatory minimums were particularly under assault. I believe they serve a useful function, but some were overboard.

The previous version of 18 U.S.C. § 3553(f) had a safety valve allowing judges to let a defendant off from an otherwise mandatory minimum for certain drug crimes if all five of its listed requirements were met. The criminal history requirement was very narrow, and there is no doubt that the 2018 Congress wanted to open the door wider. But how wide? Unfortunately, the drafting of this section was sloppy, and today the Supreme Court disagreed sharply on how to read it. The case is Pulsifer v. United States. Continue reading . . .

Deja Vu All Over Again

by · Mar 13, 2024 2:22 pm

A March 4 article by By Paul Demko, Jeremy White and Jason Befferman published in POLITICO reports that liberal Democrat politicians in some of the nation’s most progressive cities are abandoning the soft-on-crime policies that they vigorously supported a few years ago. Back in 2020, as the George Floyd riots were tearing up these same cities, politicians running New York, Washington DC, Chicago, Baltimore, Seattle, Portland, Los Angeles and San Francisco were insisting that sentences for so-called “low level” drug and theft related crimes be reduced, that cash bail be eliminated and that criminals, including violent gang members, be released early to rehabilitation programs. The motivator for these policies was the systemic racism narrative promoted by progressive academics, non-profits like Black Lives Matter, race-baiting politicians and the national media. While this narrative had been pushed since the 1990s, it got major traction after Floyd’s death as deep blue cities reflexively cut police budgets, elected pro-defendant prosecutors and swept away consequences for crime. Then something happened.

Continue reading . . .

Cal. Supreme Ct. Upholds Life-Without-Parole for Young Adult Murderers

by · Mar 5, 2024 4:28 pm

A California law, enacted directly by the people, provides that the crime of first-degree murder with special circumstanhe ces committed by an adult is punishable by death or life in prison with no possibility of parole. Yet Tony Hardin, who committed a vicious murder at age 25, claimed that the Equal Protection Clause of the Fourteenth Amendment requires that he be considered for parole anyway because others who committed lesser degrees of murder at the same age are eligible for “youth offender parole” under California law. A California Court of Appeal panel actually bought that. The California Supreme Court rejected this claim in a 5-2 decision yesterday, reversing the Court of Appeal. Continue reading . . .

Coalition Grows to Overhaul California’s Thief-Friendly Law

by · Feb 9, 2024 11:28 am

The San Francisco Chronicle has this article on Mayor London Breed joining the coalition to overhaul California’s disastrous Proposition 47. And of course, being the Chronicle, the main thing they emphasize about the initiative is that it is “GOP-led,” generally regarded as a kiss of death in The City.

But Mayor Breed is not the only Democrat to climb on the fix-47 bandwagon. Continue reading . . .

The Persistent Myths of Mass Incarceration

by · Jan 18, 2024 1:41 pm

Professor Paul Robinson and a fellow colleague from Penn have posted an in-depth article that is worth a read.  The abstract, sans the roadmap:

Few claims have won such widespread acceptance in legal academia as the “mass incarceration” narrative: the idea that the rise in America’s prison population over the last half century was fueled largely by the needless and unjust imprisonment of millions of criminal offenders due to punitive changes in sentencing. To many academics and activists, the question is not how accurate the mass incarceration narrative is, but how mass incarceration can be ended. This Article argues the “mass incarceration” narrative is based on a series of myths and, as a result, many proposed reforms are based on a misunderstanding of America’s past and present carceral practices. A more accurate understanding is needed to produce effective reform.

The central myth of the mass incarceration narrative is that exceptional and unjustified punitiveness largely explains America’s significant increase in prison population since the 1960s. This explanation overlooks the numerous non-sentencing factors that increased incarceration: a near doubling in U.S. population, higher crime rates, increased justice system effectiveness, deinstitutionalization of the mentally ill, new and tightened criminalizations, worsening criminal offender histories, and more. While this Article makes no attempt at statistical precision, these non-sentencing factors can easily explain most of America’s elevated incarceration compared to the 1960s—a fact in direct conflict with the mass incarceration narrative. Additionally, while some punishments have increased in severity since the 1960s, most of these increases are likely to be seen as moving sentences closer to what the community – and many incarceration reformers – would believe is appropriate and just, as in cases of sexual assault, domestic violence, stalking, human trafficking, firearm offenses, and child pornography, among others. Continue reading . . .

No compelling evidence of racial bias in sentencing, per new meta-analysis

by · Jan 4, 2024 3:46 pm

The question of racial bias in the criminal justice system is a highly debated issue. In recent years, it has become a common belief that the criminal justice system is racially biased, wherein black and Latino defendants receive harsher sentences than whites or Asian defendants. But the empirical research does not fully support these perceptions, according to a recently published meta-analysis (note: a subscription is required for access).

Continue reading . . .

Public Support for Tougher Criminal Justice Rebounds

by · Nov 16, 2023 9:48 pm

“In general, do you think the criminal justice system in this country is too tough, not tough enough or about right in its handling of crime?” Gallup has asked this question six times since 1992. Initially, 80% of respondents said not tough enough. By 2020, only 41% thought so, though that was still twice many as thought it was too tough. In the latest survey, though, a solid majority of 58% think the system is not tough enough, more than quadruple the number who think it is too tough. Click on the thumbnail for the full-size graph. Megan Brennan has this report for Gallup.

Continue reading . . .

Defining “Violent”

by · Aug 31, 2023 3:44 pm

One would not think that defining “violent crime” is all that difficult. Yet in both federal law and California law, there are definitions of “violent” that are excessively narrow, excluding crimes that everyone with sense would consider violent. Dan Walters has this column at CalMatters, titled “California law treats some violent crimes as nonviolent, letting offenders off the hook.” He has an extended quote from this column by Emily Hoeven at the SF Chronicle (behind a paywall).

From Walters’ column:

Hoeven noted that earlier this year, the Assembly’s (perhaps misnamed) Public Safety Committee rejected a Republican bill to classify domestic violence as a violent crime, thereby making it easier to keep offenders behind bars.

This outrageous situation results from a 2016 ballot measure, sponsored principally by then-Gov. Jerry Brown and passed by voters, that purported to give those who commit nonviolent crimes chances to earn their way out of prison.

However, it was deceptive. Proposition 57’s indirect definition of a nonviolent crime was that it did not appear on a specific Penal Code list of 23 violent crimes.

That list only referred to particularly heinous crimes and omitted many offenses that ordinary folks would consider violent, including some forms of rape and domestic violence. The result is that those who commit some unspeakable crimes, including battering one’s spouse, are given kid gloves treatment in the penal system.

How did the definition get so screwed up? The problem in California is, in substantial part, the result of lazy drafting. (The federal problem is a topic for another post.) Continue reading . . .