Tuesday, February 18, 2025

Noting departues and continued challenges at the federal Bureau of Prisons

Walter Palvo has this new piece at Forbes highlighting transitions and challenges at federal Bureau of Prisons.  I recommend the full piece, headlined "Bureau Of Prisons Executives Announce Retirement Ahead Of New Director," and here are a few excertps:

The Federal Bureau of Prisons (BOP) is currently experiencing significant upheaval, with a wave of leadership departures leaving the agency without clear direction during a critical time.  Acting Director William Lathrop, who stepped into the role on January 20, 2025, after former Director Colette Peters was reportedly fired, has now announced his retirement, effective February 28.  Lathrop’s statement acknowledged the gravity of the situation, saying,  “We are in unprecedented times as an Agency.”  His departure is accompanied by the resignations of five other senior leaders, including General Counsel James Wills and two regional directors.

This mass exodus has left the BOP rudderless, grappling with pre-existing operational challenges exacerbated by the sudden leadership vacuum. As the agency faces increasing pressure to perform amid significant policy shifts, uncertainty looms over its future....

Complicating matters further, the BOP has been tasked with additional responsibilities related to immigration. It is now responsible for assisting in immigration investigations and housing detainees, a shift that has sparked concern among staff members.  Facilities such as FDC Miami, FCI Atlanta, and FCI Berlin are now housing hundreds of detainees, and U.S. Immigration and Customs Enforcement (ICE) is exploring further expansion into other BOP facilities, including FCI Dublin and FPC Morgantown — both of which were slated for closure in December 2024.  This move marks a significant policy change, as BOP facilities have traditionally housed only those convicted of crimes.....

The BOP is grappling with multiple systemic issues, including severe staff shortages, crumbling infrastructure, insufficient halfway house capacity, and rising medical care costs for inmates.  Efforts to boost staffing levels have been hampered by uncompetitive pay rates in urban areas and a scarcity of workers in rural locations.  Compounding these issues, the Department of Government Efficiency (DOGE) has implemented a cost-cutting initiative, offering employees eight-month severance packages to voluntarily resign, creating an atmosphere of uncertainty and making recruitment even more challenging....

The departure of Colette Peters and her senior team leaves a critical leadership gap, providing an opportunity for the next director to bring in new personnel and potentially reshape the agency.  However, based on previous actions by the Trump administration, significant policy shifts are anticipated, which could further disrupt the already unstable environment within the BOP.

Attorney General Pam Bondi has acknowledged the urgency of the situation, declaring that addressing issues within the BOP is a top priority. Bondi has also pledged to fully implement the First Step Act, aiming to resolve the inconsistencies that have plagued the law’s application.  However, in the absence of a permanent director, her office has been issuing memos directly to frontline staff, leading to confusion and further uncertainty.  Those case managers, the ones who are the face of the agency to the prisoners, are often not consistent in the implementation of laws like the First Step Act because the policy is often ambiguous.  Leadership will have to take control of the narrative and assure that the prisoners are getting what Congress promised them under the law.

February 18, 2025 in Prisons and prisoners, Who Sentences | Permalink | Comments (1)

"State Constitutional Prohibitions against Unnecessary Rigor in Arrest and Confinement"

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

Clauses in five state constitutions prohibit treating people who are arrested or confined with “unnecessary rigor.” Decades ago, scholars concluded that history could teach us very little about these clauses.  Now with the power of digitized records and text-recognition technology, this Article reveals that “unnecessary rigor” was a recognized phrase with deep historical roots.  Courts, meanwhile, have been silent about the unnecessary rigor clauses in two states, and have offered divergent interpretations about the clauses in other states.  Jurisprudence has been limited by the missing historical record and the fact that “unnecessary rigor” does not appear in our modern vernacular, making a plain textual reading challenging.  The trove of historic sources presented in the Article suggest that state courts have interpreted the unnecessary rigor clauses too narrowly.

The Article argues that the animating principle of the unnecessary rigor clause is to protect human dignity against overzealous use of power in state custody, the context in which state power over the individual is at its apex.  To check overzealous state power in this special context, the clause requires all rigor — all rigidity and harshness — to be justified by necessity.  Excessive mandatory sentences, prolonged solitary confinement, failure to provide needed medical treatment, and unduly restrictive visitation policies are just a few examples of practices that can violate this animating principle.

February 18, 2025 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2)

Monday, February 17, 2025

Catching up with some roundng up of sentencing news and commentary

For a host of reasons, I have already concluded that it is essentially impossible for me to keep up with, let alone blog about, all the notable and newsy criminal justice and sentencing stories giving 2025 quite a start.  Consequently, a holiday Monday seems lik a fitting time for an abridged round-up to catch up on just some items recently catching my eye:

From the Atlanta Journal-Constitution, "Judge denies Georgia prisoner’s bid for death by firing squad"

From Cal Matters, "People are getting arrested under California’s new tough-on-crime law. Some counties aren’t ready"

From Crime & Consequences, "The Effectiveness of Rehabilitation Programs: Do they really work?"

From Harvard Magazine, "Cruel and Unjust: How the Supreme Court turned the failed war on crime into a war on liberty"

From the Manhattan Institute, "Why 'Rehabilitating' Repeat Criminal Offenders Often Fails"

From Reason.com, "North Dakota's 'Truth-in-Sentencing' Bill Could Cost More Than $250 Million"

From Stateline, "States debate prison spending as needs grow but budgets tighten"

From Verdict, "Whether or Not Ohio Ever Carries Out Another Execution Will Help Shape the Death Penalty’s Fate Across the Nation"

From the Wall Street Journal, "Jan. 6 Rioters Argue Pardons Apply to Charges Including Murder Plot, Child Porn"

From The Wrap, "Elizabeth Holmes Says Her New ‘Life’s Work’ Is Criminal Justice Reform, Intends to Resume Biotech Career"

February 17, 2025 in Recommended reading | Permalink | Comments (10)

Sunday, February 16, 2025

Might five US states complete six executions in March 2025?

This new USA Today piece highlights that a trio of states that have not conducted many executions recently are scheduled to carry out death sentences next month:

Louisiana's execution of Christopher Sepulvado on March 17 would mark the end of a 15-year break in executions in the state, which plans to use nitrogen gas.  Arizona's execution of Aaron Gunches on March 19 would be the first in the state since 2022, when the state struggled to carry out three executions.  Meanwhile South Carolina is set to execute its fourth inmate since September, when the state reinstated the practice after a 13-year pause.

In addition, accourding to the Death Penalty Information Center's Upcoming Executions page, Oklahoma and Texas have an execution scheduled in March, and Louisiana actually two executions scheduled on back-to-back days in mid-March.

If all six of these scheduled executions go forward, March 2025 will have more executions completed in the US than in over a decade.  The last month with six executions, based on my scan of the DPIC's execution database, was back in January 2015.  And if all ssx scheduled execution are completed, the US will have completed as many executions in the first three months of 2025 as it did in all of 2021 (which set a modern historic low for US executions in one year). 

After fairly steady declines in the number of yearly executions in the 2000s and and 2010s, the 2020s have so far seen a notable (though still modest) uptick in yearly executions since the modern low in 2021.  Time (and litigation) will tell if that trend will continue in 2025 and beyond. 

February 16, 2025 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

Saturday, February 15, 2025

AG Bondi orders transfer of federal lifer to Oklahoma to enable execution of state death sentence

As reported in this local article, "New U.S. Attorney General Pam Bondi has directed the Federal Bureau of Prisons to return convicted murderer John Fitzgerald Hanson to Oklahoma for execution." Here is more:

"Inmate Hanson viciously murdered an innocent woman," Bondi told the acting director of Federal Bureau of Prisons in a memo Tuesday. "The Department of Justice owes it to the victim and her family − as well as the public − to transfer inmate Hanson so that Oklahoma can carry out this just sentence," she wrote.

Hanson, 60, is serving a life sentence for bank robbery and other federal crimes at the U.S. Penitentiary in Pollock, Louisiana.  He avoided execution in 2022 when the Federal Bureau of Prisons under the Biden administration refused to transfer him.

Oklahoma's attorney general, Gentner Drummond, renewed the state's request for a transfer on Jan. 23. He made the request after President Donald Trump issued an executive order stating that it is U.S. policy "to ensure that the laws that authorize capital punishment are respected and faithfully implemented."

Drummond wants the transfer to be completed before the state's first execution of 2025 so Hanson can be scheduled next. Oklahoma is set to execute confessed killer Wendell Grissom on March 20 at the Oklahoma State Penitentiary in McAlester.

Hanson is asking a federal judge in Louisiana to prevent his transfer.  "It is well established that the federal government enjoys primary jurisdiction overan individual it 'first arrested and imprisoned,'" his attorneys argued in a Jan. 29 complaint.

Hanson faces execution for murdering retired banker Mary Agnes Bowles after kidnapping her from the parking lot of a Tulsa mall on Aug. 31, 1999. The victim was 77. He and an accomplice wanted her car for a robbery spree. Hanson shot her in a ditch near Owasso after the accomplice gunned down a dirt pit owner, Jerald Thurman, according to testimony at his trial....  

Hanson had been set for execution in Oklahoma on Dec. 15, 2022. A regional director at the Federal Bureau of Prisons refused to release him, writing "his transfer to state authorities for state execution is not in the public interest." The position was in keeping with the Biden administration's opposition to the death penalty.

This press release from the Oklahoma Attorney General notes the litigation over the transfer and provides this link to the Justice Department's filing.  Though I am not expert or even fully familiar with all prisoner transfer law, it strikes me as perverse (as well as quite dangerous) if a condemned state murderer would be able to evade a lawful state death sentence because he committed additional serious crimes which led him to also receive federal life sentences.

February 15, 2025 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Friday, February 14, 2025

"A More Luminous Beacon"

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

Over the Supreme Court's past four Terms, federal postconviction habeas corpus has been placed on the chopping-block.  Its fate hangs in the balance of an historical debate over the maxim, oft recited by the Court between 1830-1953, that postconviction habeas reaches only "jurisdictional defects" — as opposed to "mere error"on the part of the convicting court.  Justices Gorsuch and Thomas maintain that "jurisdiction" carried then the same narrow meaning it does now: power ab initio over the offense charged and the defendant's person.  Justices Kagan and Jackson contend that in this context, "jurisdictional defect" was understood broadly enough to encompass any error of federal constitutional (or perhaps even statutory) law.  Functionally, Gorsuch and Thomas are arguing to altogether abolish federal postconviction review of even the most serious alleged constitutional violations, while Kagan and Jackson are arguing to perpetuate a status quo that a broad, cross-ideological scholarly consensus recognizes as deeply broken.

Fortunately, the historical record makes abundantly clear that neither the Gorsuch-Thomas position nor the Kagan-Jackson position can be right.  In many pre-1953 cases, the Court did deem alleged constitutional violations to be "jurisdictional," but in just as many other such cases, it refused to make that move.  Not as fortunately, the Court has struggled for 195 years to articulate a clear answer to the question of which constitutional violations implicate "jurisdiction" for habeas purposes, and which do not.  Likewise, of the countless and brilliant scholars who have scoured the historical caselaw for such an answer, none has found one.  As Paul Bator famously put it in 1963, "[o]nce the concept of 'jurisdiction' is taken beyond the question of the [convicting] court's competence to deal with the class of offenses charged and the person of the prisoner, it becomes a less than luminous beacon."

This Article seeks, in the historical concept of "jurisdiction," what had eluded Bator and so many others: a more luminous beacon.  What's different this time, however, is our understanding of the writ's hard-wired conceptual DNA.  As I have recently argued, American habeas principally operates not on a logic of individual physical liberty (as long conventionally assumed), but on one of regulating the principal-agent relationship between We the People and the governmental officials who wield our delegated penal power.  When we approach the historical caselaw from this novel conceptual premise, it finally does yield a luminous beacon for modern habeas jurisprudence to follow: state actors' willful disobedience or systemic disregard of the People's constitutional commands are indeed "jurisdictional defects" cognizable on postconviction habeas review; their good-faith mistakes on federal constitutional questions, however, are not.

February 14, 2025 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

In first interview as HHS secretary, RFK jr states "we had about a third of our prison population that was in jail because of marijuana offenses”

One reason I have given significant attention to modern marijuana reform — and helped to start an academic center, OSU's Drug Enforcement and Policy Center, conducting research on the topic — relates to my worries that basic justice-system data and the potential consequences of marijuana criminalization have not often been examined and analyzed systemically and rigorously.  Critically, the same can and should and has been said about a wide variety of public-health issues related to modern marijuana reforms: an ad hoc committee of the National Academies of Sciences, Engineering, and Medicine (on which I had the honor of serving) released this big report last year emphasizing the critical importance of improved data collection and public health research in light of changing cannabis laws and practices.  

I provide this background to explain why I am not sure whether to be impressed or troubled or just nonplussed by new remarks by the new Secretary of the US Department of Health and Human Services, Robert F. Kennedy Jr., in response to questions from Laura Ingram on FOX.  The discussion of marijuana was only a little more than a minute toward the end of a lengthy interview, and the Marijuana Moment folks here provide the clip and highlights: 

Fresh off his Senate confirmation vote to become the secretary of the U.S. Department of Health and Human Services, Robert F. Kennedy Jr. said on Thursday that he is “worried about” the normalization of high-potency marijuana and that he feels its use can have “really catastrophic impacts” on people, but that state-level legalization can facilitate research into its harms and benefits.

Kennedy, who was vocal about his support for marijuana legalization when he was running for president — as well as during his time on the Trump transition team — has been notably silent on cannabis policy issues over recent months as he worked to win over senators to secure confirmation for the country’s top health role.  Now, during his first major media interview since receiving that final vote to secure the cabinet position earlier in the day, Kennedy told Fox News’s Laura Ingraham that he believes cannabis does hold serious harm potential.

The HHS secretary, who personally struggled with drug addiction during his youth, was asked about his cannabis policy position and noted that he’s been in recovery for over 40 years and attends daily 12-step meetings. “I hear stories all the time of the impacts of marijuana on people — and the really catastrophic impacts on them,” he said.

However, Kennedy said “that worry also has to be balanced [with] the impacts that we’ve had before” as it relates to criminalization. “Twenty-five states [have] now legalized marijuana, but we had about a third of our prison population that was in jail because of marijuana offenses,” he said. “That’s something we don’t want either.”

“Because of the legalization of recreational marijuana in 25 states, we have now a capacity to really study it and to compare it to states,” he said. “We need to do studies. We need to figure it out, and then we need to we need to implement policies to address” any health concerns.

I agree with RFK jr that "we don't want" to have "about a third of our prison population ... in jail because of marijuana offenses.” Fortunately, that has never been true or anywhere close to true (though we lack robust data here).  A 2015 Justice Department study of "Drug offenders in Federal Prison" estimated that just over 12% of the federal drug offender prison population in fiscal year 2012 (just before state legalization got started) was in federal prison for marijuana offenses.  These data mean than only about 5% of the total federal prison population — about a twenthieth, not a third — in 2012 was there based on marijuana offenses.  And because the federal system has always had, by far, the highest percentage of drug offenders incarcerated in its total prison population (usually around 40% compared to states having 20% or less of drug offenders), I can assert even absent robust data that it is likely that "our [national] prison population" has never had more than 5% of its members comprised of marijuana offenders.  

That all said, were I eager to try to find some possible kernal of reality in in this RFK jr claim, perhaps he was thinking about historic incarceration rates (including short jail stays) for all drug offenses or marijuana arrests nationwide or the impact of past marijuana offenses can have on future punishment.  Though the data here is again somewhat sketchy and changes all the time, there have been periods in the past when nearly one in three persons given some time behind bars nationally were involved in a drug offense (and, for decades, over 40% of the federal prsion population has been there for drug offenses, with the Bureau of Prisons now reporting that number at 43.8%).  In addition, national FBI arrest data highlight that marijuana arrests were a major portion of total drug arrests nationwide in the decades before state legalization reforms.  And the US Sentencing Commission issued this data report a few years ago noting that thousands of federal defendants (though far short of 1/3 of their sample) receive more criminal history points under the guidelines based on prior marijuana possession sentences. 

In the end, I am not sure I can find any data or sound foundation for what our new HHS head has said about "our prison population" in response to a question on the potential public health harms of cannabis.  But I find interesting that he expressed concern about the potential harms of cannabis criminalization, and I especially find just what the Trump Administration may do on both criminal justice and public health fronts to full of all sorts of uncertainty and intrigue.  Stay tuned.

February 14, 2025 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Pot Prohibition Issues, Prisons and prisoners, Who Sentences | Permalink | Comments (5)

Thursday, February 13, 2025

Texas completes its second execution of 2025 of man involved in multiple murders

As reported in this AP piece, a " Texas man who killed his strip club manager and another man, then later prompted a massive lockdown of the state prison system when he used a cellphone smuggled onto death row to threaten a lawmaker, was executed Thursday night." Here is more:

Richard Lee Tabler, 46, was given a lethal injection at the state penitentiary in Huntsville. He is the second person executed in Texas in a little over a week, with two more scheduled by the end of April. The time of death was 6:38 p.m. CST.

Tabler was condemned for the Thanksgiving 2004 shooting deaths of Mohammed-Amine Rahmouni, 28, and Haitham Zayed, 25, in a remote area near Killeen in Central Texas. Rahmouni was the manager of a strip club where Tabler worked until he was banned from the place. Zayed was a friend of Rahmouni, and police said both men were killed in a late-night meeting to buy some stolen stereo equipment that was actually a planned ambush.

Tabler also confessed to killing two teenage girls who worked at the club, Tiffany Dotson, 18, and Amanda Benefield, 16. He was indicted but never tried in their killings.

Tabler had repeatedly asked the courts that his appeals be dropped and that he be put to death. He also has changed his mind on that point several times, and his attorneys have questioned whether he is mentally competent to make that decision. Tabler’s prison record includes at least two instances of attempted suicide, and he was previously granted a stay of execution in 2010....

Tabler’s death row phone calls in 2008 to state Sen. John Whitmire, who is now the mayor of Houston, prompted an unprecedented lockdown of more than 150,000 inmates in the the nation’s second-largest prison system. Some were confined to their cells for weeks while officers swept more than 100 prisons to seize hundreds of items of contraband, including cellphones.

Whitmire led a Senate committee with oversight of state prisons, and said at the time that Tabler warned him that he knew the names of his children and where they lived. Whitmire, through a spokesperson at the mayor’s office, declined to comment on Tabler’s pending execution.

The ACLU appealed Tabler’s case to the U.S. Supreme Court last year, claiming he was denied adequate legal representation during his lower court appeals by attorneys who refused to participate in hearings at what they said was his request....

Tabler recruited a friend, Timothy Payne, a soldier at nearby Fort Cavazos, and lured Rahmouni and Zayed to a meeting under the guise of buying the stolen stereo equipment. Tabler shot them both in their car, then pulled Rahmouni out and had Payne video him shooting Rahmouni again.

Tabler later confessed to the killings. During the sentencing phase of his trial, prosecutors introduced Tabler’s written and videotaped statements saying he also killed Dotson and Benefield days later because he was worried they would tell people he killed the men.

February 13, 2025 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (8)

Florida completes its first execution of 2025 of murderer of a couple 28 years ago

As reported in this AP piece, a "Florida man convicted of killing a husband and wife at a remote farm in an attack witnessed by the couple’s toddler was put to death Thursday in the state’s first execution of the year."  Here is more:

James Dennis Ford, 64, was pronounced dead at 6:19 p.m. following a lethal injection at Florida State Prison. He was convicted of the murders of Gregory Malnory, 25, and his wife Kimberly, 26, who were killed during a 1997 fishing trip at a sod farm in southwest Florida’s Charlotte County where court records showed both men worked.

Ford had nothing to say Thursday evening to about 25 witnesses present for the execution. He was strapped on a gurney as the three-drug injection began, at first his chest heaving and then slowly nothing more. A few minutes later a staffer shook him and yelled “Ford! Ford!” to see if he was still conscious. There was no response.

At the time of the killings, the couple’s 22-month-old daughter witnessed the attack while strapped in a seat in the family’s open pickup truck. She survived an 18-hour ordeal before workers came upon the crime scene and found the girl covered in her mother’s blood and suffering from numerous insect bites, according to investigators.

The daughter, Maranda Malnory, recently told Fort Myers television station WBBH that she had no recollection of what had happened and only remembers her parents through photos and the memories of others. “I told one of my grandmas the other day you grieve the people you knew,” she said. “But I grieve what could have been.”

Ford’s execution was the first in Florida in 2025. One person was put to death in 2024, down from six in 2023, when Gov. Ron DeSantis was campaigning for the Republican presidential nomination. During the previous three years, the governor didn’t sign off on any executions. He signed Ford’s death warrant in January....

Court documents show Ford attacked Gregory Malnory after the group arrived to go fishing, shooting him in the head with a .22-caliber rifle, beating him with an axe-like blunt instrument and finally slitting his throat. Kimberly Malnory was beaten, raped and then shot with the same rifle, authorities had said.

Ford initially told investigators that the Malnorys were alive when he left them to go hunting, suggesting someone else killed them. Prosecutors said in a court filing that there was “overwhelming proof that Ford was responsible for the murders and the rape.”...

The U.S. Supreme Court denied Ford’s final appeal Wednesday without comment. Ford’s lawyers had filed numerous appeals since his sentencing, all unsuccessful. Recently the Florida Supreme Court rejected claims that his IQ of about 65 at the time of the murders put him in an intellectually disabled category with a mental age then of about 14 — therefore ineligible for execution, court documents show.

February 13, 2025 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (2)

"Falling racial inequality and rising educational inequality in US prison admissions for drug, violent, and property crimes"

The title of this post is the title of this paper recently published in Proceedings of the National Academy of Sciences and authored by Christopher Muller and Alexander Roehrkasse. Here is its abstract:

Using administrative and survey data, we show that there has been a sea change in the contours of American imprisonment.  At the end of the twentieth century, inequality in the prison admission rates of Black and White Americans was comparable to inequality in the prison admission rates of people with and without a college education. However, educational inequality is now much greater than racial inequality in prison admissions for all major crime types. Violent offenses have replaced drug offenses as the primary driver of Black prison admissions and Black–White inequality in the prison admission rate.  The prison admission rate of Black Americans has fallen, but the prison admission rate of White Americans with no college education has dramatically increased for all offense categories.  These findings, which are robust to adjustments for changing selection into college attendance, contribute to a growing body of evidence documenting narrowing racial inequality and widening educational inequality in Americans’ life chances.

February 13, 2025 in Data on sentencing, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

You be the judge: what federal sentence for prominent elderly state legislator convicted on 10 of 23 corruption counts?

The question in the title of this post is prompted by this lengthy Chicago Tribune article reporting on the results of a lengthy trial and jury deliberation under the headline "No sweep for either side, but Madigan jury’s split verdict still offers ‘historic’ corruption conviction." Here are a few details with a focus on a few legal particulars:

Illinois House Speaker Michael Madigan minced no words on the day Democratic Gov. Rod Blagojevich, his longtime political nemesis, was arrested on federal corruption charges in December 2008. “Today’s events are shocking and disappointing,” Madigan, the then-leader of the state Democratic Party, said on that infamous day 16 years ago. “It represents a new low for conduct by public officials.”

At the time, Blagojevich was the latest in a depressing array of governors, state legislators, county commissioners and aldermen accused of selling out the public’s trust for personal gain. On Wednesday, a federal jury added Madigan to that same, sad parade.

In a verdict sure to reverberate across the political landscape, the jury found Madigan, once the most powerful politician in the state, guilty of bribery conspiracy and other corruption charges alleging he used his public office to increase his power, line his own pockets and enrich a small circle of his most loyal associates.

But neither prosecutors nor Madigan could declare total victory. Jurors’ final verdict was overall mixed, deadlocking on several counts — including the marquee racketeering conspiracy charge — and acquitting Madigan on numerous others. Jurors also deadlocked on all six counts related to Madigan’s co-defendant, Michael McClain.

Jury foreman Tim Nessner told the Tribune late Wednesday that the panel was deadlocked 11-1 in favor of acquittal on the main racketeering charge as well as several other counts. He also said he felt much of the prosecution was “government overreach.”...

The split verdict does not avert the possibility of a significant sentence for Madigan, who turns 83 in April.  Several of the guilty counts carry a maximum of 20 years in prison, according to the U.S. attorney’s office.  No date has been set for Madigan’s sentencing.

It was a complicated conclusion to a complicated case, and leaves prosecutors to decide whether to go for a retrial. Speaking to reporters after the verdict, acting U.S. Attorney Morris Pasqual said it was too soon to make a decision on how to proceed. “We will obviously closely discuss the developments … and at the appropriate time we’ll make a decision about whether to seek a retrial,” Pasqual said....

Madigan was convicted on 10 of 23 counts, including one count of conspiracy related to a multipronged scheme to accept and solicit bribes from ComEd. Jurors also convicted him on two counts of bribery and one Travel Act violation related to payments funneled to Madigan associates for do-nothing ComEd subcontracts.

Madigan was also convicted on six out of seven counts — including wire fraud and Travel Act violations — regarding a plan to get ex-Ald. Daniel Solis, a key FBI mole who testified at length in the trial, appointed to a state board.

Jurors acquitted Madigan of one bribery count related to that plan. That charge specifically alleged Madigan took steps to find a board seat for Solis through the administration of incoming Democratic Gov. JB Pritzker.  One of the last pieces of evidence jurors heard before closing arguments was a stipulation that, if called to testify, Pritzker would say he has no recollection of discussing a Solis appointment with Madigan.

Jurors also acquitted Madigan of a bribery charge alleging he tried to have Juan Ochoa, a onetime political nemesis, put on the ComEd board. In addition, he was found not guilty of one Travel Act violation related to the ComEd scheme. And Madigan was acquitted of all four counts related to an alleged scheme to pressure developers of a West Loop high-rise into giving business to his law firm....

The verdict caps one of the most significant political corruption investigations in Chicago’s sordid history and cements an extraordinary personal fall for Madigan, the longest-serving state legislative leader in the nation’s history who for decades held an iron-tight grip on the House as well as the state Democratic Party.

There are a lot more details about Madigan and this trial in the full Tribune article, and many more details will surely be relevant to the determination of Madigan's advisory sentencing guideline range and at his eventual sentencing.  But, particulars aside, the foundational question at a forthcoming sentencing would seem to be whether and how much prison time would be fitting for a 83-year-old prominent career politicial convicted of some (but not a majority) of corruption charges.

February 13, 2025 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (5)

Wednesday, February 12, 2025

"The Crime Victims' Rights Movement: Historical Foundations, Modern Ascendancy, and Future Aspirations"

The title of this post is the title of this new talk/paper authored by Paul Cassell available now via SSRN.  Here is its abstract:

This article, which serves as the keynote address for the 2025 University of Pacific Law Review Symposium, explores the past, present, and future of America's crime victims' rights movement-one of the most successful social movements in modern history. 

Historically, crime victims played a central role in criminal justice processes through private prosecutions -- i.e., the ability of victims to initiate or participate in criminal prosecutions.  Today, while private prosecutions have been largely supplanted by public prosecutions, the victims' rights movement has successfully restored the victims' voice in criminal processes.  The movement has reformed contemporary American criminal justice so that criminal processes now often include participatory rights for victims. As a result of state victims' bills of rights, along with the federal Crime Victims' Rights Act, victims play an important role in criminal cases.  Because these rights for victims are participatory rights rather an entitlement to substantive case outcomes, the victims' rights movement is not a "carceral rights movement," aimed solely at securing punitive sentences. Instead, the movement focuses on giving a voice to crime victims in their own criminal cases.  This laudable effort has drawn broad support across the country. Efforts to expand and amplify victims' voices in criminal proceedings are justified and likely to continue into the future.

February 12, 2025 in Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

Third Circuit panel states "Second Amendment’s touchstone is dangerousness" when remanding rights claim by person with multiple gambling-related offenses

A helpful lawyer made sure I saw this week's important new ruling by a Third Circuit panel in Pitsilides v. Barr, No. 21-3320 (3d Cir. Feb. 10, 2025) (available here).  I highly recommend the Pitsilides ruling in full, especially because the Third Circuit, thanks to its prior Range rulings (see here and here), has been the leading court giving concrete meaning to the Suprmere Court's Second Amendment jurisprudence in the context of federal law's broad criminal prohibition on gun possession for persons with certain criminal records.

Though all 20 pages of Pitsilides merit a close read, here are excerpts (with some cites and footnotes removed) that seem to capture the heart of this interesting decisions:

[W]hile Rahimi and Range II did not purport to comprehensively define the metes and bounds of justifiable burdens on the Second Amendment right, they do, at a minimum, show that disarmament is justified as long as a felon continues to “present a special danger of misus[ing firearms],” Rahimi, 602 U.S. at 698, in other words, when he would likely “pose[] a physical danger to others” if armed, Range II, 124 F.4th at 232.  Indeed, as Judge Bibas presciently observed even before Bruen, “[a]s an original matter, the Second Amendment’s touchstone is dangerousness,” Folajtar v. Att’y Gen., 980 F.3d 897, 924 (3d Cir. 2020) (Bibas, J., dissenting); see also Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting) (“[L]egislatures have the power to prohibit dangerous people from possessing guns.”), and our sister circuits have articulated the principle similarly in light of Rahimi....

As evidenced by our opinion in Range II, the determination that a felon does not currently present a special danger of misusing firearms may depend on more than just the nature of his prior felony....  [W]e agree with the Sixth Circuit: Courts adjudicating as-applied challenges to § 922(g)(1) must consider a convict’s entire criminal history and post-conviction conduct indicative of dangerousness, along with his predicate offense and the conduct giving rise to that conviction, to evaluate whether he meets the threshold for continued disarmament.  As Range II illustrated, consideration of intervening conduct plays a crucial role in determining whether application of § 922(g)(1) is constitutional under the Second Amendment.  See 124 F.4th at 232.  Indeed, such conduct may be highly probative of whether an individual likely poses an increased risk of “physical danger to others” if armed. Id....

But as Bruen, Rahimi, and Range II teach, we may not paint with such a broad brush when evaluating an individual felon’s as-applied challenge.  So while bookmaking and pool selling offenses may not involve inherently violent conduct, they may nonetheless, depending on the context and circumstances, involve conduct that endangers the physical safety of others.  That assessment necessarily requires individualized factual findings.

While this case helpfully highlights how Second Amendment doctrine is moving toward a new "touchstone" of dangerousness, I am not sure it is all that helpful in unpacking how this ineherently vague standard is to be applied.  I have dozens of questions about how a "dangerousness" standard is to apply in the Second Amendment context, and I will flag just a few here.

For starters, there are many folks who were clearly dangeous, and were convicted of possibly dangerous crimes, in their twenties who thereafter mature and are no longer dangerous years later.  Do these folks have Second Amendment rights?  More broadly, data show that women as a class are much less likely to commit violent crimes than men, so does this suggest women with criminal records are more likely to have Second Amendment rights than men because they are, generally speaking, less dangerous?  And, procedurally, who bears what evidentiary burden on the issue of "dangerousness" in civil and criminal cases?  I assume Pitsilides will have to prove by a preponderance that he is not dangerous in the civil case that he brought, but does the Government now need to prove dangerousness beyond a reasonable doubt in every 18 USC § 922(g) criminal prosecution?

Interesting times.   

February 12, 2025 in Gun policy and sentencing, Procedure and Proof at Sentencing, Second Amendment issues | Permalink | Comments (0)

Tuesday, February 11, 2025

US Sentencing Commission conducting day-lomg hearing on (some) proposed guideline amendments

I flagged in this post last week that on February 12 the US Sentencing Commission was to be conducting a public hearing "to receive testimony from invited witnesses on proposed amendments relating to the career offender guideline, firearms offenses, simplification, and circuit conflicts."  At this page on the USSC's website, one can now see the full agenda for this public hearing, which runs from 9am to past 4pm and lists 23(!) scheduled witnesses during eight panels.

The USSC's webpage includes links to all of the scheduled witness's written testimony, and I would especially recommend this written testimony of US District Judge Edmond E-Min Chang, who serves as Chair of the Criminal Law Committee.  In just a few pages, that written testimony effectively summarizes the range of guideline amendments being explored at the public hearing.  Should be quite a day, and this webpage will also provide the live webstream of the day-long hearing.

February 11, 2025 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

"Of Two Minds: the Supreme Court's Divergent Approach to Constitutional Mens Rea"

The title of this post is the title of this new article authored by Rachel Barkow just posted to SSRN. Here is its abstract:

Constitutional law is typically conceived as a set of individual rights and a list of powers given to and restrictions on the government.  What typically goes unnoticed is that the Supreme Court often limits rights and narrows restrictions on the government by insisting that someone bringing a constitutional challenge demonstrate not only that they were harmed or that the government overstepped its bounds, but also that the governmental actor behaved with an improper mental state, or what criminal law refers to as mens rea.  These mens rea requirements are Court creations. On closer inspection, the Court’s rationales for insisting on mens rea requirements often fall short of justifying them and amount to little more than a backdoor way to undercut a constitutional right or avoid a constitutional remedy. This should be disconcerting to anyone who cares about the robust protection of the constitutional right at issue.

The Court’s eagerness to impose mens rea requirements on constitutional claims is troubling for another reason: it stands in sharp contrast to its unwillingness to establish constitutionally required mens rea requirements for substantive criminal law either as a matter of due process or pursuant to the Eighth Amendment when an individual faces incarceration.  The Court has instead allowed legislatures to set mens rea requirements or dispose of them to further public policy as they see fit.  For example, the Court has accepted strict liability offenses that impose terms of incarceration without a mens rea requirement and has dismissed the notion that the insanity defense is constitutionally required when criminal punishment is at stake.  If the Court truly cared about the history and tradition of fault and blame, it would be just as vigilant in policing legislative definitions of crime as it has been in imposing its own mens rea thresholds for constitutional claims.

This article will argue that, if anything, the Court has mens rea backward. It should be insisting on mens rea before individuals are punished with incarceration, and it should refrain from imposing judge-made mens rea requirements that undercut constitutional rights.

February 11, 2025 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Interesting "public safety agenda" reports from R Street

I recently came acrosss a series of short policy papers released last month by the think tank R Street Institute to provide suggestions regarding a "public safety agenda" for various government entities. Here are links to the four papers in the series, all of which make for short and interesting reads:

2025 Public Safety Agenda for Members of Congress by Christi M. Smith

2025 State Public Safety Agenda by Logan Seacrest

2025 Public Safety Agenda for Prosecutors and Courts by Lisel Petis

2025 Public Safety Agenda for Mayors, City Councilmembers, and Local Policymakers by Sarah Anderson

February 11, 2025 in Who Sentences | Permalink | Comments (0)

Prez Trump pardons former Illinois Gov after prior commutation ... are more clemencies in the works?

As reported in this AP piece, "President Donald Trump on Monday pardoned former Illinois Gov. Rod Blagojevich, whose 14-year sentence for political corruption charges he commuted during his first term."  Here is more:

The Republican president called the Democratic former governor, who once appeared on Trump’s reality TV show “Celebrity Apprentice,” “a very fine person” and said the conviction and prison sentence “shouldn’t have happened.”

“I’ve watched him. He was set up by a lot of bad people, some of the same people I had to deal with,” Trump said at the White House as he signed the pardon.

Blagojevich was convicted in 2011 on charges that included seeking to sell an appointment to then-President Barack Obama’s old Senate seat and trying to shake down a children’s hospital. Blagojevich served eight years in prison before Trump cut short his term in 2020....

At the time that Trump announced Blagojevich’s commutation in 2020, Trump had been investigated for his ties to Russia and their attempts to interfere in the 2016 election. The president made clear that he saw similarities between efforts to investigate his own conduct and those that took down Blagojevich.

I have been wondering ever since Prez Trump's flurry of clemency action his first week back in the oval office (see posts here and here and here and here) if he was going to put away his clemency pen for months or even years to come.  Notably, it has been roughly a half-century since any president has granted a significant number of clemencies during his first few months in office.  But this Blagojevich pardon suggests Prez Trump may be inclined to make clemency a regular (if not quite regularized) part of his second term.

Of course, there is no shortage of federal criminal defendants hoping that Prez Trump will keep his clemency pen active.  Here are just some of the press pieces I have noticed in recent weeks about various folks eager to encourage Prez Trump to see more folks as worthy of his clemency attention:

From The Daily Beast, "Sam Bankman-Fried’s Parents Seeking Trump Crypto Pardon for Son"

From The Economic Times, "Joe Exotic begs Donald Trump for pardon, says Justice department ‘weaponised against me’"

From The Hill, "Democrats accused of corruption look to Trump for clemency"

From the New York Post, "Disgraced ‘Chrisley Knows Best’ fraudster couple to seek Trump pardon

February 11, 2025 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Monday, February 10, 2025

Louisana poised to resume executions with nitrogen gas protocol

As reported in this local article, "Louisiana has approved a protocol for executions by nitrogen hypoxia, which will allow death sentences to be carried out again after nearly 15 years, Gov. Jeff Landry said Monday."  Here is more:

Louisiana has not carried out the death penalty since 2010.

In an execution by nitrogen hypoxia, the inmate's face is covered by a mask and pure nitrogen is pumped in instead of oxygen, causing death by asphyxiation.

“These capital punishment cases have been reviewed at every judicial level, have had decades of unsuccessful appeals, and the death sentences affirmed by the courts,” Landry said in the release. “I expect our DA’s to finalize these cases and the courts to move swiftly to bring justice to the crime victims who have waited for too long.”

The Louisiana Legislature passed a law permitting nitrogen hypoxia executions in the second 2024 special session, amid a shortage of lethal injection drugs. State Rep. Nicholas Muscarello, R-Hammond, sponsored the law, which also added electrocution to the list of state-sanctioned execution methods.

Louisiana stopped using electrocution to carry out the death penalty 34 years ago. Legal challenges and reports of burns on the bodies of those executed helped pressure the state to retire its electric chair.

It is unclear if and when an execution will take place. 57 people currently sit on death row, according to Cecelia Kappel of the Capital Appeals Project, a nonprofit law firm that represents all defendants facing the death penalty who would otherwise have a public defender....

State Attorney General Liz Murrill, who has typically been in lockstep with Landry on criminal justice issues, praised the state's move toward resuming executions. "Those sentenced to death have been convicted by a jury of their peers for the most heinous and barbaric crimes imaginable. These are the worst of the worst," she said in a statement. "Governor Landry and I are committed to moving this process forward to finally get justice for victims."...

Landry's office included a brief summary of the new execution protocol along with the news release, saying it "builds upon Alabama's constitutionally approved method." The condemned person will have access to a spiritual adviser. "Designated victim relationship witnesses" and media will be authorized to observe so long as it is in accordance with Louisiana law.

February 10, 2025 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (3)

Top New York state judge advocates for statute authorizing second-look sentencing

As reported in this New York Times piece, the "chief judge of New York State’s highest court urged the State Legislature on Monday to pass a bill that would allow prisoners who have been locked up for years to apply for reduced sentences."  Here is more:

The judge, Rowan Wilson, who oversees the state’s entire court system, said in his annual address at the Court of Appeals in Albany that the proposed legislation, known as the Second Look Act, would give people who committed crimes years ago an opportunity to show they no longer pose a danger and could be a benefit to society.

“Put simply, our criminal justice system isn’t working. Maybe it hasn’t really ever worked,” Judge Wilson said. “Prolonged incarceration is very expensive, and it does not make us safer.”...

The second-look bill would allow people serving prison terms of 10 years or longer to apply to judges and ask them to re-evaluate their sentences.  The aim is to “address the harms caused by New York’s history of imposing overly harsh sentences, including those required by mandatory minimums,” according to its language....

In his speech, Judge Wilson highlighted what he said were signs that the “traditional” model of the legal system was not working.  He pointed out that the United States is home to 5 percent of the world’s population, but 20 percent of its incarcerated people; that the felony conviction rate is significantly higher for New Yorkers of color than their white peers; and that the age of incarcerated New Yorkers is rising because of longer prison sentences.

“Over-incarceration has everything to do with the courts,” he said. “No prosecutor, jury, legislator or executive branch official imposed a prison sentence. Everyone sentenced to a New York prison was sentenced by a judge of the Unified Court System.”

February 10, 2025 in Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Might Trump's Justice Department conclude broad prohibitions on gun possession by drug users and convicted persons are unconstitutional?

The question in the title of this post is prompted in part by this recent Executive Order from Prez Trump titled "Protecting Second Amendment Rights." Among its notable provisions, this EO directs Attorney General Bondi to review, inter alia, "positions taken by the United States in any and all ongoing and potential litigation that affects or could affect the ability of Americans to exercise their Second Amendment rights." 

As regular readers know, ever since the Supreme Court's landmark 2008 Heller decision found that the Second Amendment protected an enforceable individual right to possess arms, I have been questioning the constitutionality of various provisions of 18 USC § 922(g) which criminalizes any gun possession by various persons.  Over the two decades since Heller, the US Justice Department has consistently defended (mostly successfully) these provisions again various Second Amendment claims.  However, since the Supreme Court's landmark 2022 Bruen decision, a number of courts have started to find various 922(g) provisions unconstitutional (or potentially unconstitutional) as applied.

Over at the Lisa Foundation, Tom Root is all over this matter with this new post headlined "Trump Executive Order Hints At Felon-In-Possession About Face."    Tom's post provides this helpful context (with helpful links from the original)

I have been speculating for a few months about whether [Prez Trump's] personal stake in being able to again pack his personalized “Trump .45” Glock would cause him to do something about the issue of F-I-P constitutionality.

The 3d Circuit has underscored its view that § 922(g)(1) can be unconstitutional as applied to a nonviolent felon (Range v. Attorney General) and the 6th Circuit has hinted that it feels the same (United States v. Williams). The 9th Circuit said as much in United States v. Duarte, but that holding is on en banc review and probably won’t survive. Some other circuits have gone the other way.

After New York State Rifle & Pistol Association v. Bruen and United States v. Rahimi, there’s been little doubt that the “as applied” 2nd Amendment question that's swirling around the F-I-P statute will reach the Supreme Court sooner rather than later.  Likewise, the Dept of Justice’s intractable opposition to any loosening of gun restrictions has been a feature of every court challenge of § 922(g), not just F-I-P but also drug user in possession, person-under-indictment in possession and domestic abuser-in-possession....

[The Trump EO] does not mean that the DOJ will drop its opposition to any or all of the varied “prohibited person in possession” issue raised by § 922(g), even whether F-I-P is constitutional as applied to a nonviolent defendant whose convictions are a quarter century old like Bryan Range.  But it is a clear signal that the next SCOTUS § 922(g) case may feature a much kinder, gentler DOJ that we’ve seen so far.

I share the view that it is too early to assume anything about what Trump's Justice Department might do on any of these fronts. But with a long textured history of court rulings, thousands of federal 922(g) prosecutions brought each year, and real challenges defending broad modern gun possession prohibitions on originalist grounds, this AG review is very much worth watching.

Some of many, many prior posts:

February 10, 2025 | Permalink | Comments (0)