Tuesday, June 18, 2024

Not quite original(ist) musings on SCOTUS showing little interest in constitutional criminal procedure cases

In this post over at Crime & Consequences noting the Supreme Court's latest criminal statutory case cert grant (flgged here), Kent Scheidegger closes with this notable lament:  

The high court’s apparent lack of interest in the constitutional criminal procedure cases that once made up a large part of its docket is frustrating.  With a solid majority finally in place who are dedicated to the real Constitution that the people actually adopted, there are large piles of pseudo-constitutional barriers to justice that could be corrected.  Yet the majority doesn’t seem to be much interested.

A variation of this frustration often echoes in Orin Kerr's (bemused?) hand-wringing about the fact that the Supreme Court is completing "three straight Terms of deciding no Fourth Amendment cases."  And I certainly have been heard to express disappointment about the Justices' failure to take up consitutional questions related to acquitted conduct and other suspect sentencing practices.  

Because the current Court may not experience changes in membership for at least a few more years, there is every reason to expect its recent cert granting (and cert denial) tendencies will continue for some time.  So Kent and Orin and I and others interested in constitutional criminal procedure cases should probably expect our collective frustrations to continue.  But just why has this historically large part of the Supreme Court's docket in recent years experienced such shrinkage? 

Kent's reference to "the real Constitution," as well as cases still pending before the Justices this Term and the interesting First Amendment case in Vidal v. Elster last week, prompts me to muse with some originalist (though not likley original) thoughts on this front.  As the Vidal case highlights, even Justices who embrace originalist approaches to interpreting the Constitution can reach different conclusions in hard cases.  To borrow a notable passage from Justice Barrett's opinion, there are various "judge-made tests" used by avowed originalists, and the current Justcies may be unqiuely worried that in constitutional criminal procedure cases different Justices may reach different results due to which "judge-made tests" they adopt and how they apply that test. 

A variation of this story defines modern Second Amendment jurisprudence, especially since the Justices in Bruen made up a new originalist test for assessing the constitutionality of gun restrictions.  For two years, we have seen considerable uncertainty and variation in judicial determinations about an array of federal and state gun prohibitions, and the Justices were urged by the US Solicitor General to clean up some of the constitutional messiness via the Rahimi case.   That we still await a ruling in Rahimi suggests the Court is not finding it easy to clarify its originalist Second Amendment.  Meanwhile, at least a half-dozen other federal gun prohibitions are confounding lower courts (with more in the states), all of which the Rahimi ruling seems unlikley to conclusively resolve. 

Why am I not expecting Rahimi to conclusively clarify originalist Second Amendment jurisprudence?  Because two other cases still on the current SCOTUS docket, Smith v. Arizona (dealing with the Confrontation Clause) and Erlinger v. US (dealing with the Jury Trial right), are the continuing echoes of game-changing originalist constitutional criminal procedure rulings from 20 years ago.  In the same Term, Justice Scalia brought originalism to new prominence via Crawford and Blakely, and I am not the only academic who has made a career trying to sort through the proper way to apply an originalist Sixth Amendment to all the intricacied of modern criminal justice decision-making.  That Sixth Amendment jurisprudence has been messy and confusing since Crawford and Blakely does not mean these cases were wrongly decided or misguided (indeed, my love and admiration for the Blakely ruling endures).  But, while none of the current Justices were even on the Court when Crawford and Blakely were decided, they have surely taken note of the steady stream of cert petitions highlighting the challenges of applying an originalist jurisprudence in these spaces.

I could go on and on by noting, for example, the ambivalence of many Justices to how Justice Scalia in Jones and Justice Gorsuch in Carpenter seemed inclined to "originalize" Fourth Amendment jurisprudence.  Also notable, but still unclear, is whether the pending Grants Pass case might lead the current Court to take an originalist Eighth Amendment turn.  The oral argument did not really hint at that possibility, but one never knows. 

Against that backdrop, I will speculated that those Justices who may be most consistently interested in originalist approaches to the Constitution are also the ones who realize how truly hard and contestable originalist doctrines can prove to be, especially for criminal procedure issues in which there is a lot of text, and a lot of history, and a lot of tradition to sort through and (re)interpret.  And the whole Court surely realizes that once its jurisprudence takes a robust originalist turn (see, eg, Blakely, Bruen, Crawford and surely others), it is alwfully hard to turn back.  And, again with recent experiences in mind, an originalist turn in this arena often will entail that criminal defendant of all sorts start looking to make new arguments of all sort that the originalist turn can and should mean even more rights and protections than existing doctrines provide.

Of course, as we get new SCOTUS rulings this week and next, my thinking about originalism and constitutional criminal procedure and the SCOTUS docket may change.  But for now, I fear that Kent and Orin and others may need to be content with a whole bunch of statutory cases and immunity claims. 

June 18, 2024 in Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

US Sentencing Commission releases latest "compassionate release" data through March 2024

The US Sentencing Commission today updates some of its data on sentence reduction motions on this webpage, particularly though this new Compassionate Release Data Report running through the second quarter of USSC Fiscal Year 2024 (meaning through the end of March 2024).   Notably, the latest data run includes information for nearly six months after the Commission's new "sentence reduction" guideline became law, and nearly a year after the Commission submitted this guideline to Congress.

As I have noted before, the long-term data going back to the height of the COVID pandemic period reveals, unsurprisingly, that we now see many fewer sentence reduction motions filed or granted than in years past.  Though there are month-to-month variations, it would be roughly accurate to say recent months see, on average, a few dozen compassionate release motions granted and a couple hundred  motions denied nationwide.  And the number of motions resolved and the grant rates from various districts remain quite different within and among circuits.

There are all sorts of other interesting data points in this new report relating to both the crimes and backgrounds of defendants bringing these motions and getting sentence reductions.  Especially because there are so many elements to sentence reduction motions and so much discretion in the hands of district judges when considering these motions, I continue to find these data stories fascinating, and I am hopeful researchers (and the USSC) will keep exploring how this part of the First Step Act continue to function.

June 18, 2024 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

New Prison Policy Initiative briefing explores impact of Dobbs on women under community supervision

I often say to students (and sometimes highlight here) that every big legal story has some kind of sentencing echoes.  This new Prison Policy Initiative briefing makes that point with respect to the Supreme Court's Dobbs ruling two years ago.  The full title and subtitle of this briefing summarizes its coverage: "Two years after the end of Roe v. Wade, most women on probation and parole have to ask permission to travel for abortion care.  Since the 2022 Dobbs decision, 21 states have restricted abortions earlier than the Roe v. Wade standard. Now, more of the 800,000 women on probation and parole must seek abortion care out-of-state — but for many, whether they can get there depends on an officer’s decision." 

Here is an excerpt from the briefing's discussion of its key findings:

To understand how this post-Dobbs landscape impacts women under the U.S.'s massive system of community supervision, we examined standard supervision conditions in each state, along with the number of women who must comply with them. We find that the one-two punch of abortion and supervision restrictions impacts an estimated 4 out of 5 womem (82%) on probation or parole nationwide.  That means that for the vast majority of people under community supervision, the ability to seek abortion care out-of-state is left not to the pregnant person, but to the discretion of a correctional authority, typically their probation or parole officer.

Specifically, we find that, excluding federal probation and post-release supervision, 82% of women on probation and 85% of women on parole live in states that (1) either completely ban abortion or restrict it based on gestational age and (2) list travel restrictions as a standard condition of supervision.

June 18, 2024 in Offender Characteristics, Reentry and community supervision, Who Sentences | Permalink | Comments (8)

Monday, June 17, 2024

"Illegitimate Choices: A Minimalist(?) Approach to Consent and Waiver in Criminal Cases"

The title of this post is the title of this new paper authored by Christopher Slobogin and Kate Weisburd now available via SSRN. Here is its abstract:

Current doctrine justifies many government searches, interrogations, and deprivations of liberty on the ground that the target of the action “voluntarily” agreed to it or waived applicable rights.  The standard critiques of this doctrine — that these choices are often or always coerced, the result of an unconstitutional condition, or inherently shaped by race, gender, and class — have usually been given short shrift by the courts, leading one of us to question whether the practice of using consent and waiver to deprive someone of basic rights and liberties should be abolished. In the meantime, we jointly wondered if there is a more immediate “minimalist” path forward, drawing on the Supreme Court’s own jurisprudence. 

This article takes the position that in many situations the voluntariness of a person’s choice need not be an issue, because the option the government proffers to that person is legally illegitimate.  Specifically, the “illegitimate choice” test we propose would make concerns about the validity of a person’s choice legally irrelevant in three situations: (1) when Supreme Court caselaw, properly construed, has made it so; (2) when the benefit the government offers is premised on acceptance of a condition that is not narrowly tailored to a compelling interest; or (3) when the benefit the government offers is itself unconstitutional. This approach would call into question searches based on the third-party doctrine, promises of leniency during interrogations, many types of pretrial and post-conviction dispositional conditions, certain waivers associated with plea bargaining, some types of special needs searches, and consent searches conducted in the absence of suspicion. In all of these situations, the illegitimate choice test would avoid difficulties with determining whether a choice is coerced or voluntary, while still maintaining consent as a viable option at other criminal justice decision-points.

June 17, 2024 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (10)

SCOTUS grants cert to address fraudulent inducement theory of federal criminal fraud

As explained here at SCOTUSblog, the Justice via a new order list has filled in a bit more of its still light docket for next Term:

The justices on Monday morning added four new cases to their docket for the 2024-25 term. In a list of orders from the justices’ private conference last week, the court agreed to tackle issues ranging from the burden of proof for an employer hoping to rely on an exemption from the Fair Labor Standards Act to the pleading standards for cases under the Private Securities Litigation Reform Act.

One of the four cases taken up by SCOTUS today is a criminal fraud case: Kousisis v. USHere is how the cert petition in this case presented  the questions to the Court:

The circuits are split 6-5 on the validity of the fraudulent inducement theory of mail and wire fraud. The Questions Presented are:

Whether deception to induce a commercial exchange can constitute mail or wire fraud, even if inflicting economic harm on the alleged victim was not the object of the scheme.

Whether a sovereign’s statutory, regulatory, or policy interest is a property interest when compliance is a material term of payment for goods or services.

Whether all contract rights are “property.”

June 17, 2024 in Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (25)

Maryland Governor to issue mass pardons for low-level marijuana offenses estimated to cover over 175,000 convictions

As reported in this Washington Post piece, "Maryland Gov. Wes Moore will issue a mass pardon of more than 175,000 marijuana convictions Monday morning, one of the nation’s most sweeping acts of clemency involving a drug now in widespread recreational use."  Here is more about this high-profile clemency effort:

The pardons will forgive low-level marijuana possession charges for an estimated 100,000 people in what the Democratic governor said is a step to heal decades of social and economic injustice that disproportionately harms Black and Brown people. Moore noted criminal records have been used to deny housing, employment and education, holding people and their families back long after their sentences have been served.

“I’m ecstatic that we have a real opportunity with what I’m signing to right a lot of historical wrongs,” Moore said in an interview. “If you want to be able to create inclusive economic growth, it means you have to start removing these barriers that continue to disproportionately sit on communities of color.”

Moore called the scope of his pardons “the most far-reaching and aggressive” executive action among officials nationwide who have sought to unwind criminal justice inequities with the growing legalization of marijuana. Nine other states and multiple cities have pardoned hundreds of thousands of old marijuana convictions in recent years, according to the National Organization for the Reform of Marijuana Laws....

The pardons, timed to coincide with Wednesday’s Juneteenth holiday, a day that has come to symbolize the end of slavery in the United States, come from a rising star in the Democratic Party and the lone Black governor of a U.S. state whose ascent is built on the promise to “leave no one behind.”...

Maryland’s pardon action rivals only Massachusetts, where the governor and an executive council together issued a blanket pardon in March expected to affect hundreds of thousands of people....

Maryland officials said the pardons, which would also apply to people who are dead, will not result in releasing anyone from incarceration because none are imprisoned. Misdemeanor cannabis charges yield short sentences and prosecutions for misdemeanor criminal possession have stopped, as possessing small amounts of the drug is legal statewide.

Moore’s pardon action will automatically forgive every misdemeanor marijuana possession charge the Maryland judiciary could locate in the state’s electronic court records system, along with every misdemeanor paraphernalia charge tied to use or possession of marijuana. Maryland is the only state to pardon such paraphernalia charges, state officials said.

June 17, 2024 in Clemency and Pardons, Drug Offense Sentencing, Marijuana Legalization in the States, Who Sentences | Permalink | Comments (15)

Sunday, June 16, 2024

Celebrating Father's Day rounding up sentencing stories regarding two high-profile fathers awaiting sentencing

An exiting finish to the US Open, some nice gifts, and calls with my dad and from my children all contributed to a very enjoyable Father's Day for me.  But at least two high-profile fathers  must have spent at least a moment or two today having to worry about their upcoming sentencings.  In light of that reality, I figured I would flag a few recent sentencing pieces catching my eye regarding these two fathers:

On sentencing Donald Trump:

From ABC News, "Will Trump go to prison for felony hush money conviction? Experts are split"

From CNBC, "Will Donald Trump go to jail? Here’s what to expect from the former president’s sentencing"

From Rolling Stone, "The Legal Case for Sentencing Trump to Prison"

From the Washington Examiner, "Bannon warns Trump will be sentenced to ‘multiple years in prison’ despite experts saying otherwise"

 

On sentencing Hunter Biden:

From CNN, "Hunter Biden next faces sentencing in gun case"

From the Daily Mail, "What are the sentences other people have received for Hunter's crimes?"

From the New York Post, "Hunter Biden judge once gave stiff sentence in similar gun case"

From Set for Sentencing, "Hunter Biden Conviction - What To Expect at Sentencing"

June 16, 2024 in Celebrity sentencings | Permalink | Comments (2)

Saturday, June 15, 2024

Recent active discussions regarding Ohio's dormant death penalty

I have long viewed Ohio as a fascinating death penalty state, though that view is surely influenced by the fact I teach and write about capital punishment here in the Buckeye State.  Especially for a state outside the deep south, Ohio has long had a active death system: Ohio juries have imposed a relatively large number of death sentences and Ohio was behind only a few states in the total number of executions for the first dozen of so years starting the 21st century.  

But lots of litigation over execution methods and a range of other factors have contrubuted to a significant reduction in recent years in the (a) the size of Ohio's death row, (b) the number of new death sentences, and (c) completed executions in Ohio.  Of particular note, there has not been an execution in Ohio since summer 2018, and it certainly seems that current Ohio Governor Mike DeWine is  disinclined to preside over any executions while he is in office (which will be through 2026).  But the dormant capital punishment reality has not precluded active capital punishment discussions, as highlights by these recent stories:

From DPIC, "Ohio Legislative Black Caucus Identifies Death Penalty as a Legislative Priority Due to Legacy of Racial Violence and Bias"

From Fox News, "Ohio sheriff fed up with crime stemming from border crisis calls for death penalty renewal"

From Ohio Capital Journal, "Backers believe nitrogen hypoxia can jumpstart Ohio’s stalled capital punishment system""

From Spectrum News, "Gov. DeWine delays 3 more executions"

From WCMH, "Move to abolish Ohio’s death penalty renewed"

From WKRC, "Ohio considers 2 new death penalty bills that would either end executions or restart them"

June 15, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (45)

Friday, June 14, 2024

Part 2 of "Drugs on the Docket" podcast on fake stash-house stings now available

6a00d83451574769e202b751a4fdae200c-320wiIn this post from last week, I highlighted that the Drug Enforcement and Policy Center at The Ohio State University had just started releasing episodes from Season Two of the "Drugs on the Docket" podcast.  (All of the first season's episodes are all still available via Apple Podcasts and YouTube.)  As noted in the prior pose, this first episode to kick-off Seanson Two was actually part of a extended discussion that was so chock full of content that it became a two-part series.  And, as detailed on this podcast webpage, today brings the release of the second episode of this new season. which is described this way:

Season 2 Episode 2 – Compassionate release for stash house sting clients with Alison Siegler and Erica Zunkel (Part 2 of 2)

Host Hannah Miller and co-host Douglas Berman, executive director of the Drug Enforcement and Policy Center, continue their conversation with Alison Siegler and Erica Zunkel.  Part 2 covers how the University of Chicago Law School’s Federal Criminal Justice Clinic pushed the boundaries of criminal defense and leveraged the First Step Act to secure compassionate release for stash house sting defendants who were not part of the clinic’s “criminal class action” litigation.

Alison Siegler is Clinical Professor of Law and Founding Director of the Federal Criminal Justice Clinic at the University of Chicago Law School; Erica Zunkel is Clinical Professor of Law at the University of Chicago Law School and teaches in the school’s Criminal and Juvenile Justice Clinic.

As I mentioend before, the many remarkable legal and policy stories that surround the fake stash-house stings continue to amaze me.   I remain extremely grateful to have been part of efforts to capture a small parts of amazing stories via these podcasts.  I once again encourage everyone to have a listen.

Prior recent related post:

June 14, 2024 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, June 13, 2024

US Sentencing Commission releases big report on "Methamphetamine Trafficking Offenses in the Federal Criminal Justice System"

Via email, I received news of this big new report from the US Sentencing Commission titled "Methamphetamine Trafficking Offenses in the Federal Criminal Justice System."  This 66-page report provides lots of important facts and figure about the drug offense that is now the basis for the most and most severe federal drug sentences in recent years.  This USSC webpage has an overview and key findings from the report and this USSC news release provide a helpful summary:

new U.S. Sentencing Commission study found substantial increases in both the prevalence of federal methamphetamine trafficking sentences, and the purity levels of methamphetamine trafficked in the United States.

Over the past 20 years, the number of individuals sentenced federally for methamphetamine trafficking has risen by 168 percent, with methamphetamine now accounting for nearly half (49%) of all federal drug trafficking cases.

The study also revealed that the methamphetamine tested in fiscal year 2022 was on average over 90% pure with a median purity of 98%.  Furthermore, the methamphetamine tested was uniformly highly pure regardless of whether it was sentenced as methamphetamine mixture (91% pure on average), methamphetamine actual (93%) or Ice (98%).  By comparison, in 2000, the Drug Enforcement Administration reported that methamphetamine purity ranged from 10% to 80% depending on location.

Methamphetamine is one of only five controlled substances where purity affects federal statutory and guideline penalties, resulting in higher penalties when purity levels are confirmed by laboratory testing.  By federal statute, it takes ten times as much mixture compared to actual methamphetamine to trigger mandatory minimum penalties.

Because methamphetamine penalties are based in part on purity, penalty exposure and sentencing outcomes are impacted by confirmed purity levels.  The Commission’s study found that testing practices varied across the nation and that testing rates across judicial circuits were inconsistent — ranging from under 60% to over 80% of the time.  Notably, methamphetamine seized in southwest border districts was more likely to undergo laboratory testing (85%) than in non-border districts (70%).

Methamphetamine trafficking sentences averaged 91 months in fiscal year 2022, the longest among the major federal drug trafficking offenses, including fentanyl (65 months) and heroin (66 months). In addition, methamphetamine trafficking offenses carried mandatory minimum penalties more often (74%) than all other drug trafficking offenses (57%).

June 13, 2024 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes | Permalink | Comments (6)

The Sentencing Project releases report titled "Incarceration and Crime: A Weak Relationship"

The Sentencing Project this morning released this new 18-page research brief titled “Incarceration & Crime: A Weak Relationship.” The report assembles a variety of data and research in keeping with the report's thesis that there is only a weak relationship between incarceration and crime.  Here are a couple of passages from the body of the report:

Scholars examining state imprisonment trends during the period of extreme growth conclude that incarceration contributed only modestly to the crime drop.  They find that in the 1990s mass incarceration accounted for as much as 35% or as little as 6% of the crime drop.  These estimates depend on the type of crime under investigation as well as the methodology and assumptions used by analysts.  Since the turn of the century, mass incarceration appears to have made almost no contribution to the crime drop.  Reviewing the four-decade period when incarceration levels increased without any consistent relationship with crime rates, the National Research Council has concluded that “the increase in incarceration may have caused a decrease in crime, but the magnitude of the reduction is highly uncertain and the results of most studies suggest it was unlikely to have been large.”...

As some lawmakers pivot to widen the reach of the criminal legal system in response to public concern, recent state trends illustrate that less imprisonment often happens alongside improvements to community safety.  Over a nine year period (2013-2022), 46 states reduced the footprint of their prison population while experiencing crime declines.  In some states, these declines were substantial.

June 13, 2024 in National and State Crime Data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (10)

Wednesday, June 12, 2024

Notable Washington Post "Abused by the badge" investigation includes notable data on sentencing outcomes

The Washington Post today released a series of remarkable pieces as part of an investigative series it calls "Abused by the badge."  The subheadline of this main piece summarizes the main themes: "A Washington Post investigation found hundreds of law enforcement officers in the United States have sexually exploited kids. Many avoid prison time."  Here are additional links to the newest pieces in the series:

This Reason piece about the Post's findings helpfully summarizes some of the key sentencing stories:

The investigation revealed a staggering lack of accountability for officers who sexually abuse minors — finding not only that convicted officers often received paltry sentences, but that police departments sometimes rehired officers with child sex abuse convictions.

The Post's analysis looked at thousands of court filings, as well as The Henry A. Wallace Police Crime Database, the county's most comprehensive database of police arrests.  The authors found that, between 2005 and 2022, around 17,700 police officers were charged with crimes — and 1 in 10 of those were charged with a crime involving the sexual abuse of minors.

The crimes officers were charged with varied, though most charges were for a few specific offenses. According to the Post's analysis, 39 percent of officers charged with child sexual abuse crimes were charged with rape.  Twenty percent were charged with crimes related to child sexual abuse material (another term for child pornography) and 19 percent were charged with forcible fondling.

Eighty-three percent of charged officers were convicted.  However, only 61 percent of convicted officers received prison time.  Fifteen percent received local jail sentences, and a striking 24 percent received sentences as light as probation, fines, and community service.  But even those imprisoned received relatively light sentences. Half were sentenced to less than five years in jail.

Why did so many officers seem to get off easy for heinous sex crimes?  According to the Post, it comes down to how prosecutors and judges treat police officers. "Prosecutors have broad discretion in the types of charges they bring, the plea bargains they offer and the cases they are willing to take to trial," the Post's analysis reads. "Judges play a critical role at sentencing hearings in determining what punishment officers deserve."

Because there is no national data about sentencing outcomes in cases involving other types of persons sexually abusing minors, it is impossible to compare the outcomes detailed by the Post for officers to other sets of offenders.  But the Post's suggestion that these officer offenders are being treated relatively leniently seems sound.  And many might reasonably argue that secual abuse of a minor committed my an officer ought to lead to even harsher punishment than would be given to other offenders, especially if the officer used his position to facilitate the crime.

June 12, 2024 in Data on sentencing, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (24)

"The White House isn’t ruling out a potential commutation for Hunter Biden after his conviction"

The title of this post is the headline of this notable new AP article.  Here is how it begins: 

The White House is not ruling out a potential commutation for Hunter Biden, the president’s son who was convicted on three federal gun crimes and is set to be sentenced by a judge in the coming months.  “As we all know, the sentencing hasn’t even been scheduled yet,” White House press secretary Karine Jean-Pierre told reporters Wednesday on Air Force One as President Joe Biden traveled to the Group of Seven summit in Italy.

She said she has not spoken to the president about the issue since the verdict was delivered Tuesday. Biden definitively ruled out pardoning his son during an ABC News interview last week. “He was very clear, very upfront, obviously very definitive,” Jean-Pierre said of the president’s remarks about a potential pardon.  But on a commutation, “I just don’t have anything beyond that.”

A pardon is an expression of forgiveness of a criminal offense that restores some rights, such as voting, that a person loses upon conviction. Meanwhile, a commutation reduces a sentence but leaves the conviction intact.

The position from the White House is a shift from what it said in September, when Jean-Pierre was asked whether the president would “pardon or commute his son if he’s convicted.” The press secretary responded at the time that “I’ve answered this question before. It was asked of me not too long ago, a couple of weeks ago. And I was very clear, and I said no.”

Update on June 13This AP article reports on comments made by President Biden on this topic.  It startes this way: "President Joe Biden said Thursday that he will not use his presidential powers to lessen the eventual sentence that his son Hunter will receive for his federal felony conviction on gun crimes."

June 12, 2024 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (12)

Rounding up some early accounts of how Hunter Biden will be sentenced

I have already seen a handful of commentaries mapping out the dynamics of the federal sentencing of Hunter Biden following his conviction on three felonies.  This New York Times piece, headlined "Will Hunter Biden Go to Jail? Here’s What His Sentence Could Look Like," provides these useful particulars:

According to the most recent manual published by the United States Sentencing Commission, which sets recommended sentencing guidelines, someone in Mr. Biden’s position would typically face 15 to 21 months’ imprisonment for offenses related to the unlawful receipt, possession, or transportation of firearms.

From 2019 to 2023, just 52 defendants were sentenced in a similar category as Mr. Biden, and 92 percent were sentenced to serve prison time with a median prison term of 15 months, according to the commission’s data. Around 8 percent of people in that category received probation or a fine.

But judges frequently depart from the suggested guidelines when handing down a sentence and may reduce the time spent in prison in light of the particular circumstances unique to each case.

And here are a few other press pieces discussing some sentencing issues at some length:

From CBS News, "Is Hunter Biden going to prison? What to know about the possible sentence after his conviction"

From PBS News Hour, "What federal guidelines suggest for Hunter Biden’s sentencing"

From the New York Post, "Hunter Biden judge once gave stiff sentence in similar gun case"

From USA Today, "What's next for Hunter Biden? Sentencing, likely appeal and looming trial on tax charges"

June 12, 2024 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (37)

Tuesday, June 11, 2024

Missouri completes execution of double murderer who proclaimed his innocence

As detaile in this AP article, a "man convicted of killing his former lover and her husband in what prosecutors described as a fit of rage was executed Tuesday evening in Missouri."  Here is more:

David Hosier, 69, was pronounced dead at 6:11 p.m. following a single-dose injection of the sedative pentobarbital at the state prison in Bonne Terre. Hosier was convicted of the 2009 killings of Angela and Rodney Gilpin in the state capital of Jefferson City.

Hosier turned his head a couple of times and breathed hard twice as the drug was administered. All movement stopped within seconds, even as his spiritual adviser seated next to him, the Rev. Jeff Hood, continued to pray.

Investigators said Hosier had a romantic relationship with Angela Gilpin and was angry with her for breaking it off and reconciling with her husband.  Hosier maintained until the end that he was innocent and shouldn’t have been convicted on circumstantial evidence.

The way was cleared Monday when Gov. Mike Parson declined to grant clemency, citing Hosier’s “lack of remorse.” Parson, a Republican and former county sheriff, has overseen 10 executions since taking office in 2018. Hosier’s lawyers said no court appeals were pending in the hours before the scheduled execution....

In previous interviews with The Associated Press, Hosier acknowledged having an affair with Angela Gilpin that she ended before getting back with her husband.  In September 2009, the two were fatally shot near the doorway to their apartment....

Hosier was the seventh person executed in the U.S. this year and the second in Missouri.  Brian Dorsey was executed in April for killing his cousin and her husband in 2006.  Missouri is scheduled to execute another man, Marcellus Williams, on Sept. 24, even though Williams is still awaiting a hearing on his claim of innocence in the 1998 stabbing death of Lisha Gayle.

June 11, 2024 in Death Penalty Reforms | Permalink | Comments (10)

BJS releases small accounting with "Preliminary Data Release - Jails (2023)"

THe Bureau of Justice Statistics sent me a couple emails today making sure I saw it published online here its latest data on jail populations in the US.  Here is the text that starts the report:

The Bureau of Justice Statistics provides key jail statistics prior to release of the annual jails report.  The statistics below include the number of persons held in local jails, by inmate demographics and conviction status; the number of admissions to jail; and jail incarceration rates, from 2013 to 2023.

Statistics from 2023, the latest data year, are preliminary and may be updated once BJS publishes the final data in Jail Inmates in 2023 – Statistical Tables, which is scheduled for release in late 2024.  

Key findings

  • At midyear 2023, local jails held 664,200 persons in custody, similar to the year before (663,100).
  • Jails reported 7.6 million admissions from July 1, 2022 to June 30, 2023.  While this represents a 4% increase over the 7.3 million admissions the year before, annual admissions were 35% lower than 10 years ago (11.7 million).
  • Local jails held 95,100 females at midyear 2023, accounting for 14% of the confined population.
  • At midyear 2023, 70% of the jail population (467,600) was unconvicted and awaiting court action on a current charge or being held in jail for other reasons.  The remaining 30% (196,600) was convicted and either serving a sentence or awaiting sentencing on a conviction.

June 11, 2024 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Notable new Second Circuit opinion limits grounds for granting 3582(c)(1)(A) sentence reduction

A helpful reader made sure I did not miss a notable new opinion today from a Second Circuit panel reversing a notable sentence reduction under 18 U.S.C. § 3582(c)(1)(A).  The 28-page ruling in US v. Fernandez, No. 22-3122 (2d Cir. June 11, 2024) (available here), gets started this way:

This appeal raises questions as to which claims and arguments a district court is permitted to consider as “extraordinary and compelling reasons” in support of a motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A), commonly known as a motion for “compassionate release.” Defendant-Appellee Joe Fernandez, then imprisoned in a federal penitentiary, filed this compassionate-release motion seeking a reduction of the mandatory life sentence he was serving for his conviction of murder for hire, in violation of 18 U.S.C. § 1958.

Patrick Darge had hired Fernandez as a “backup shooter” in a scheme to murder two Mexican drug cartel members who had come to New York City to collect payment for more than 270 kilograms of cocaine the cartel had sold to local drug trafficker Jeffrey Minaya.  While Darge (and several other codefendants implicated in the scheme) pleaded guilty to various narcotics, firearms, and murder charges and cooperated with the government, Fernandez went to trial and was convicted.

In 2021, Fernandez filed the instant motion for compassionate release in the district court arguing, in relevant part, that two “extraordinary and compelling reasons” warranted his release: (1) his potential innocence in light of the questionable credibility of Darge, the government’s key witness at trial, and (2) the significantly lower sentences imposed on Fernandez’s co-defendants.  The United States District Court for the Southern District of New York (Alvin K. Hellerstein, Judge) granted the motion on these grounds, reduced Fernandez’s sentence to time served, and ordered his release.

The government appealed, arguing that the district court abused its discretion because potential innocence is never a permissible “extraordinary and compelling reason[]” for a sentence reduction within the meaning of 18 U.S.C. § 3582(c)(1)(A), and that Fernandez’s sentencing disparity is not an “extraordinary and compelling reason[]” for a sentence reduction on the facts of this case.  We agree with the government that a compassionate release motion is not the proper vehicle for litigating the issues Fernandez has raised, irrespective of whether his mandatory life sentence is unjust. We therefore reverse the judgment of the district court.

The discussion of sentencing disparity as a legal basis for possible sentence reduction is quite nuanced, and it includes a lengthy footnote starting with this sentence: "We cannot foreclose the possibility that significant sentencing disparities, even between a defendant who went to trial and a co-defendant who pleaded guilty and cooperated, might, in some unusual circumstances, warrant a finding of 'extraordinary and compelling' reasons to grant a sentence reduction."   In addition, the innocence discussion is also dynamic.  But, nuances aside, this ruling would seem to greatly hinder claims of actual innocence or general co-defendant sentencing dispartity as a basis for seeking a sentece reduction.

June 11, 2024 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (14)

What facts should matter (and not matter) most at federal sentencing after Hunter Biden is convicted by jury on three felony counts?

These are heady times for historic sentencing proceedings.  As New York state actors are working through the process of preparing for former President Donad Trump's state sentencing after his conviction last month on 34 state felony counts following a lengthy trial, we know now that federal actors need to start working through the process of preparing for current President Joe Biden's son, Hunter, to be federally sentenced after his conviction today on three federal felony counts following a short trial.  Here are the basics via the New York Times' latest live update:

A jury in Wilmington, Del., on Tuesday found Hunter Biden, President Biden’s long-troubled son, guilty of three felony counts of lying on a federal firearms application in 2018, a grievous personal blow to the Biden family as his father enters the final months of a brutal re-election campaign.  He could face up to 25 years in prison, but first-time offenders who did not use their weapons to commit a violent crime typically receive no jail time....

Here’s what else to know:

A sentencing date was not set: The judge in the case, Maryellen Noreika, did not set a date for sentencing, but said it would typically be about 120 days after the verdict — that’s early October, or about a month before the election. Although the maximum possible sentence Mr. Biden faces is more than two decades behind bars and $750,000 in fines, federal sentencing guidelines call for a fraction of that penalty.

No pardons are coming: President Biden has said he will not pardon his son.  The president kept his distance from the trial and was out of office on Oct. 12, 2018, when Hunter Biden asserted he was drug-free on a background check at a time when he was addicted to crack cocaine.

His legal troubles are not over: The Delaware case, brought by the special counsel David C. Weiss, is widely regarded as the least serious of the two federal indictments against Hunter Biden brought last year.  He still faces serious tax charges in Los Angeles stemming from his failure to pay the government during a yearslong crack, alcohol and spending binge; the trial is scheduled to start in September.

I have not yet sought to work through the likely (advisory) guideline calculations for Hunter Biden, but I have already seen reports that the estimated guideline range would be for over a year of federal prison time.  Even after the Supreme Court made the guidelines advisory, federal judges are duty bound to still consider them at sentencing along with the other sentencing factors detailed by Congress in 18 USC § 3553(a).

But, of course, many of the instructions in 3553(a) are quite vague -- eg, judges must consider the "nature and circumstances of the offense and the history and characteristics of the defendant."  That vague phrase and others in federal sentencing law prompt the question in the title of this post.  Should Judge Noreika give particular weight to, or make a focused effort to limit her consideration of, Hunter Biden's struggles with addiction at the time of his offenses?  His indictments on various other alleged crimes and other alleged misbehaviors?  The wide range of unique consequences associated with being the son of a president?

June 11, 2024 in Celebrity sentencings, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (37)

Monday, June 10, 2024

Flagging challenge to Arizona's suspect application of Miller juve LWOP limis

Adam Liptak has this new piece at the New York Times detailing a pending Supreme Court challenge to how Arizona had dealt with Miller's Eighth Amendment limit on juve LWOP sentences. Here is the piece's full headline: "In Arizona, Life Sentences for Juveniles Test Supreme Court Precedents: The justices will soon decide whether to hear a case that could affect more than two dozen youths sentenced to die in prison." Here is an excerpt:

The new case involves Lonnie Bassett, who was convicted of two murders committed when he was 16. When he was sentenced in 2006, Arizona law did not give the judge the option of sentencing him to anything but life in prison without the possibility of parole.

In a unanimous opinion last year, the Arizona Supreme Court did not dispute that. But it said an idiosyncratic feature of the state law, allowing judges to choose between “natural life” without the possibility of release in any fashion and life without parole but with the theoretical possibility of clemency from the governor, rendered it constitutional.

Rejecting the usual understanding of the governing precedent, the court said, “Miller and its progeny do not specifically require the availability of parole when sentencing a juvenile offender.”

Lawyers for Mr. Bassett asked the U.S. Supreme Court to intervene, saying that his case could determine the fates of more than two dozen other juvenile offenders. The case, they wrote, “presents exceptionally significant questions about gamesmanship and the supremacy of federal law.”

June 10, 2024 in Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

FBI reports remarkable crime drop to begin 2024

This official FBI press release reports on the basics of today's release here of the FBI's Quarterly Uniform Crime Report (Q1). Here is the great news:

The Quarterly Uniform Crime Report (Q1), January-March, 2024, provides a preliminary look at crime trends for January through March 2024 compared to January through March 2023.  A comparison of data from agencies that voluntarily submitted at least two or more common months of data for January through March 2023 and 2024 indicates reported violent crime decreased by 15.2 percent.  Murder decreased by 26.4 percent, rape decreased by 25.7 percent, robbery decreased by 17.8 percent, and aggravated assault decreased by 12.5 percent.  Reported property crime also decreased by 15.1 percent.

Jeff Asher in this substack post at Jeff-alytics provides this important context:

The FBI released data for the first quarter of 2024 today reporting a massive decline in crime across the board in the first quarter of 2024 compared to the first quarter of 2023.  The data release only covers three months of data and around 77 percent of the nation’s population, and it is extremely preliminary with agencies having months to report new incidents and correct problems.  In other words, crime almost certainly declined nationally in the first three months of 2024 compared to the first three months of 2023, but the FBI’s data is almost certainly overstating that decline.,,,

Overall, my impression is that the trend direction shown in the FBI data through the first quarter is likely correct but that the overall percent changes are almost certainly overstated by a good bit. Violent and property crime are probably not down 15 percent nationally (which would be far and away the largest one year decline ever recorded in both categories), but they are likely down a healthy amount.  Murder is down a ton, probably historically so at this point in the year, but probably not 25 percent nationally.

June 10, 2024 in National and State Crime Data | Permalink | Comments (0)