Sentencing Law and Policy

"An Equilibrium Model of Deferred Prosecution Agreements"

The title of this post is the title of this new paper now on SSRN authored by Brian Grenadier and Steven R. Grenadier. Here is its abstract:

Deferred prosecution agreements (DPAs) are now a standard tool used by prosecutors to punish corporate crime.  Under a DPA, the defendant escapes prosecution by living up to the terms of the contract. However, if the prosecutor declares a breach, the defendant may face immediate prosecution.  We present an equilibrium theoretical model of the terms of a DPA, highlighting a little-recognized, yet potentially valuable benefit accorded the defendant: the option to breach.  While at the initiation of the agreement, a breach might likely be seen as a much more painful outcome than adhering to the DPA, over time this situation could change.  Using the tools of real option analysis, we demonstrate that DPAs may embed valuable optionality, particularly for longer-term agreements with significant uncertainty over future prosecution outcomes.  Since DPA penalties must price in such optionality, naïve comparisons to agreements without optionality, such as plea bargains, will mistakenly conclude that DPA terms are overly onerous and oppressive.

Ohio Gov DeWine adds to clemency conviviality with pardon event

I had clemency on the mind this morning even before seeing the news of Prez Joe Biden's notable new clemency work because I was due to drive up to Cleveland for an exciting state pardon event.  This news release, titled "Ohio Governor's Expedited Pardon Project Nears 200 Pardons on Fifth Anniversary," has some great photos and this overview:

During a celebration at Cleveland State University this afternoon, Ohio Governor Mike DeWine announced that nearly 200 people have been pardoned in the first five years of the Ohio Governor's Expedited Pardon Project.

Governor DeWine launched the project in December 2019 to simplify and expedite the lengthy pardon application process for certain rehabilitated citizens who have consistently demonstrated that they’ve become law-abiding, contributing members of society in the years since their convictions.

As of today, 182 individuals have received expedited pardons through the program, including 74 people pardoned in the past 12 months alone. Two pardon recipients stood with Governor DeWine today as he signed their pardons. "Even for those who've learned from their mistakes and have gone on to live good lives, a criminal history shuts the door on certain career, education, and volunteer opportunities," said Governor DeWine. "Through the Ohio Governor's Expedited Pardon Project, we are helping to remove the obstacles for those who have become upstanding citizens."

The Ohio Governor's Expedited Pardon Project eliminates administrative hurdles in the complex pardon application process and provides free one-on-one support from partnering law schools in Ohio. Pardon requests submitted through the Ohio Governor's Expedited Pardon Project are also fast-tracked for consideration by the Ohio Parole Board and, ultimately, the governor.

The program operates in partnership between the Ohio Governor's Office, Ohio Department of Rehabilitation and Correction, The Ohio State University Moritz College of Law Drug Enforcement and Policy Center, the University of Akron School of Law, Cleveland State University College of Law, the University of Dayton School of Law, and the Ohio Justice & Policy Center in partnership with the University of Cincinnati College of Law.

Since 2019, 543 applicants have met the criteria to participate in the Ohio Governor's Expedited Pardon Project with more than 275 people currently in various stages of the expedited pardon application process.,,,

For more information on the Ohio Governor's Expedited Pardon Project, including how to apply and minimum eligibility requirements, visit ohioexpeditedpardon.org.

It continues to be an extraordinary honor and privilege to have a role in the development and operation of the Ohio Governor's Expedited Pardon Project, and it was a pure joy to celebrate Gov DeWine's commitment to second chances and those who have eared them.

Prez Biden commutes sentences of COVID home confinement cohort and also grants 39 pardons

Two days ago, I moderated this event, titled "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power," in which a number of panelists assailed Prez Biden's clemency record.  This morning, the White House released this statement from Prez Biden reporting that his clemency record is now much more robust.  Here is the full text of what is titled "Statement from President Joe Biden on Providing Clemency for Nearly 1,500 Individuals on Home Confinement and Pardons for 39 Individuals Convicted of Non-Violent Crimes":

America was built on the promise of possibility and second chances.  As President, I have the great privilege of extending mercy to people who have demonstrated remorse and rehabilitation, restoring opportunity for Americans to participate in daily life and contribute to their communities, and taking steps to remove sentencing disparities for non-violent offenders, especially those convicted of drug offenses.

That is why, today, I am pardoning 39 people who have shown successful rehabilitation and have shown commitment to making their communities stronger and safer.  I am also commuting the sentences of nearly 1,500 people who are serving long prison sentences – many of whom would receive lower sentences if charged under today’s laws, policies, and practices.  These commutation recipients, who were placed on home confinement during the COVID pandemic, have successfully reintegrated into their families and communities and have shown that they deserve a second chance.

I will take more steps in the weeks ahead.  My Administration will continue reviewing clemency petitions to advance equal justice under the law, promote public safety, support rehabilitation and reentry, and provide meaningful second chances.

This CNN piece, headlined "Biden grants clemency for nearly 1,500 people, the biggest single-day act of clemency in modern history," provides a few details on the pardon recipients:

The 39 people being pardoned were convicted of non-violent crimes, and considered to have demonstrated records of meaningfully giving back to the country. “They are individuals who have secured employment, advanced their education, served as caretakers for their children and family members, and have really reintegrated into the tapestry of their communities,” an administration official familiar with the announcement told CNN. “They include individuals who faced incredible challenges in life and have really now shown resilience and seeking to overcome those challenges.”

While CNN has not obtained a full list of names of the clemency recipients, sources provided several examples of individuals being pardoned. Among them: A decorated military veteran described as having devoted much of his time helping members of his community including the sick and elderly; a nurse who is said to have helped during natural disasters and was at the forefront of vaccination efforts during the Covid-19 pandemic; as well as an addiction counselor recognized for his dedication to mentoring young men of color.

The pardon details in the CNN piece seems to come from this "fact sheet" released by the White House discussing today's clemency activity more fully.

UPDATE:  Here is a link to the full list of today's clemency recipients.

Contrasting perspectives on progressive prosecutors

There has been a lot of notable discussions of (the potential demise of) the "progressive prosecutor movement" in the weeks since Election Day.  In the last couple days I have seen these two notable lengthy pieces on topic providing quite distinct perspectives:

From Jim Gerrity at National Review, "Progressive Prosecutors’ Record of Unmitigated Failure."  A snippet:

Everyone will readily concede that prosecutorial decisions and philosophy aren’t the only factor in a jurisdiction’s crime rates.  But it’s laughable to contend, as CAP and that University of Toronto study do, that they make no difference at all.  And the citizenry in several of America’s big cities that are beset by terrible crime rates vehemently disagrees with the CAP perspective.

From John Pfaff at Prisons, Prosecutors, and the Politics of Punishment, "Reform Prosecutors Do Not Increase Crime: What the Data Tells Us." A snippet:

The macro studies consistently find no evidence that electing a reform prosecutor leads to more violent crime (although studies are not always looking at the same violent offenses). One study finds a non-trivial increase in property crimes (of about 7%), but most other studies seem to find little to no impact on property crimes either. Papers are here.

The micro studies indicate that less aggressive responses tend to lead to lower rates of recidivism, and this happens both in studies that limit themselves to lower-level misdemeanors and those that include more-serious felonies. One paper has an intriguing result about the risks of non-incarceration, which may in some cases increase the risk of reoffending (due to the stigma of a record without the confinement of prison). It is worth noting, though, that there are very few micro studies out there yet. Papers are here.

BJS releases "Federal Prisoner Statistics Collected Under the First Step Act, 2024"

The Bureau of Justice Statistics, today released this 25-page report titled "Federal Prisoner Statistics Collected Under the First Step Act, 2024," which is described as "the sixth in a series as required under the First Step Act of 2018."  Here is the report's introduction and some of the listed  "Key findings" that seemed most interesting to me (from a detailed two-page list):

The First Step Act of 2018 (FSA) requires the Bureau of Justice Statistics (BJS), through its National Prisoner Statistics program, to collect data from the Federal Bureau of Prisons (FBOP) on specific topics and to report these data annually.1 BJS is required to report on selected characteristics of persons in prison, including marital, veteran, citizenship, and English-speaking status; education levels; medical conditions; and participation in treatment and rehabilitation programs. In addition, BJS is required to report facility-level statistics, such as the number of assaults on staff by prisoners; prisoners’ violations of rules that resulted in time credit reductions; and selected facility characteristics, including accreditation, on-site healthcare, remote learning, video conferencing, and costs of prisoners’ phone calls.

Collected in 2024, the statistics in this report are for calendar year 2023, the fifth full year of reporting under the FSA. Data for calendar year 2024 will be available from the FBOP in 2025. Unless otherwise noted, all counts in this report include persons held in federal correctional facilities operated by the FBOP (122 institutional facilities).

Key findings:

• The federal prison population decreased about 2% from yearend 2022 (158,637) to yearend 2023 (155,972)
• At yearend 2023, there were 8,388 persons with prior military service in FBOP facilities, accounting for more than 5% of the total federal prison population.
• The number of non-U.S. citizens in federal prison at yearend 2023 was 22,817, down from 2021 (24,031) and 2022 (24,078).
• In 2023, the average daily population in special housing units, where individuals are securely separated from the general inmate population, was 11,974, an 18% increase from 2022 (10,177).
• In 2023, FBOP staff were physically assaulted by federal prisoners 872 times, which resulted in serious injury 6 times and prosecution of prisoners 3 times (table 7).
• The FBOP had partnerships with 3,047 external groups to provide recidivism reduction programming in 118 federal prison facilities in 2023.
• About 57% (1,747) of the FBOP’s partnerships to provide recidivism reduction programming were with faith-based groups in 2023.
• About 54% of the 143,291 persons in federal prison who had been assessed with the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN) as of December 31, 2023, were classified as minimum or low risk for recidivism.
• About 26% of federal prisoners were classified by PATTERN as high risk for recidivism and about 19% as medium risk at yearend 2023.
• About 82% of female federal prisoners assessed with PATTERN by yearend 2023 were classified as minimum or low risk for recidivism, compared to 52% of male federal prisoners.
• As of December 31, 2023, about 60% of black and 58% of American Indian or Alaska Native federal prisoners were classified by PATTERN as having a medium or high risk of recidivism, compared to about 36% of white and 25% of Asian, Native Hawaiian, or Other Pacific Islander federal prisoners.
• At yearend 2023, 83% of federal prisoners ages 55 to 64 and 94% of those age 65 or older were classified by PATTERN as having a minimum or low risk of recidivism.

New HBO documentary, "Nature of the Crime," examines parole process through two New York murder cases

This short New York Times review flags a new documentary premeiring on Max tonight that seem worth checking out.  Here is the start of the NYT review:

Peering into the heart of the beast we call the justice system, the directors Ricki Stern and Jesse Sweet zero in on parole, a part of the process that usually unfolds behind closed doors.  “Nature of the Crime” offers rare glimpses of the make-or-break interviews that, in more cases than not, deny petitioners their longed-for second chance.  As it traces, over a four-year period, the cycles of hope and despair for two incarcerated men — both in New York prisons for crimes committed in the state — this quiet and affecting documentary is at once an argument for reform and a soul-searching question: Should the guiding principle of criminal justice be retribution or rehabilitation?

The men at the center of the film have been behind bars for more than 30 years.  Todd Scott was 19 when he was charged, alongside three others, with the killing of a rookie police officer in Queens.  Chad Campbell was charged at 14 with committing a horrific double murder in his upstate hometown. Speaking to the filmmakers, and in conversations with their devoted pro bono attorneys, they are thoughtful and sincere.  When they also recall the abuse they suffered as children, they provide context, not excuses.

"Prohibition Constitutionalism"

The title of this post is the title of this review essay recently appearing on SSSRN authored by Matthew B. Lawrence. Here is its abstract:

This Review Essay describes and applauds David Pozen’s book, The Constitution of the War on Drugs, and offers its own intervention.  Scholars have traced the failed addiction policies exemplified by the “war on drugs” to underlying root causes including racism, politics, and moral stigma.  The core contribution of The Constitution of the War on Drugs is to show that constitutional law is an additional such root cause.  The book does so by unearthing ways the Constitution has accepted and abetted carceral addiction policy.  In pointing to constitutional law as a root cause of the drug war and, so, as a potential site for contestation against carceral drug policy, the book connects criminal law, health law, and constitutional law in ways that should enrich all three fields.

For all the book’s strengths, however, The Constitution of the War on Drugs does not go far enough in mapping the interaction of constitutional law and addiction policy that it uncovers.  In surveying “near misses” during the twentieth century when constitutional litigation came close to invalidating prohibitionist drug policies, the book limits its study to constitutional law’s negative potential to impede carceral drug policies.  This prohibitionary approach to constitutionalism leaves unaddressed and unrecognized important ways that constitutional law shapes which addiction policies are enacted in the first place — ways constitutional law influences the repeated choice of carceral drug policy over more effective evidence-based policies such as investments in treatment, housing, and social supports.  Doing so misses promising contemporary sites of contestation and risks playing into President Nixon’s brilliantly pernicious conceptual framing of addiction policy as a punitive war on drugs.  The book’s approach also risks bolstering contemporary anti-regulatory trends illustrated by ongoing attacks on the administrative state.  In further developing the interaction of constitutional law and addiction policy that The Constitution of the War on Drugs uncovers, future scholars should consider thick, affirmative conceptions such as Roberts’s freedom constitutionalism or Parmet’s public health constitutionalism.

Prior related post:

• Latest episode of "Drugs on the Docket" podcast engages with David Pozen and his new book, The Constitution of the War on Drugs 

Supreme Court perhaps poised to curtail reach of federal fraud statutes yet again

The Supreme Court heard oral argument yesterday in Kousisis v. US, which presented this question to the Justices as articulated in the petitioner's brief: "Whether a scheme to induce a transaction in property through deception, but which contemplates no harm to any property interest, constitutes a scheme to defraud under the federal wire fraud statute, 18 U.S.C. § 1343."  Though I have not listened to the full oral argument yet, this Washington Post account suggests Kousisis could become another case in which SCOTUS reigns in federal fraud prosecutions:

The Supreme Court on Monday appeared divided over whether to uphold the conviction of a government contractor found guilty of defrauding a state transportation program intended to promote diversity, with several conservative justices again expressing concern over how federal prosecutors combat white-collar fraud.

Chief Justice John G. Roberts Jr. suggested that such crimes were better handled by state prosecutors. Justice Neil M. Gorsuch worried that the federal government’s approach was so broad it could allow, hypothetically, for the prosecution of a babysitter for misleading an employer about how she planned to spend her wages. The court’s eventual ruling in the contracting case could affect how federal prosecutors pursue other fraud cases.

The justices were reviewing the case of Alpha Painting & Construction and a project manager, Stamatios Kousisis, who was convicted of fraud in 2018 and sentenced to 70 months in prison for obtaining a multimillion-dollar contract under false pretenses.  The company won a contract with the Pennsylvania Department of Transportation to make repairs in Philadelphia to a Schuylkill River bridge and to the 30th Street Train Station that was contingent on the company teaming up with a disadvantaged business for a small percentage of the work to increase diversity in contracting. But according to court filings and the defendant’s admissions, the minority contractor did not do any work on the projects or supply materials. Instead, the minority firm acted as a pass-through.  The company submitted fake documentation to the government as part of the scheme, the filings state.

Among the questions for the justices in the case known as Kousisis v. U.S. is whether the company’s deceit rises to the level of wire fraud and just how broadly prosecutors can use that criminal statute to obtain a fraud conviction....

The Supreme Court has repeatedly expressed skepticism of federal prosecutions for too broadly applying criminal statutes to combat public corruption and other white-collar crimes. Last year, the court unanimously overturned the fraud conviction of business executive Louis Ciminelli and others who relied on inside information to win a $750 million development contract as part of former New York governor Andrew M. Cuomo (D)’s Buffalo Billion revitalization project. In 2020, a unanimous court overturned the convictions of two allies of former New Jersey governor Chris Christie (R) who plotted to cause traffic snarls in a town leading to the George Washington Bridge to punish one of the governor’s rivals.

Justice Samuel A. Alito Jr. suggested Monday that those rulings had sent a signal that “the court really doesn’t like the federalization of white-collar prosecutions and wants that to be done in state court and is really hostile to this whole enterprise.” Roberts echoed those concerns when he said “a lot of these things could be dealt with under state law, and you don’t have to federalize every jot and tittle in a large contract? And that it’s a matter of concern that we’ve expressed in many precedents.”

Deputy solicitor general Eric J. Feigin said Congress intentionally crafted the statute to give prosecutors latitude to pursue fraud cases. “It wrote them broadly because frauds are very inventive. There are any number of ways you can defraud people,” Feigin said. He warned that reversing the conviction in this case would make it harder for the government to go after those who defraud programs aimed at helping veterans or charity groups.

During the discussion of the babysitter hypothetical on Monday, Gorsuch and Justice Brett M. Kavanaugh got the government’s lawyer to concede that under its theory, a babysitter could be prosecuted for fraud if she knew she got the job after telling the family she would use the money for college tuition, but instead blew it all on a trip to Cancún.

While Feigin acknowledged the hypothetical babysitter could be charged, he added, “I think the sentencing guidelines would be pretty low.”

“That’s comforting,” Gorsuch quipped.

"The Effect of Outside Temperature on Criminal Court Sentencing Decisions"

The title of this post is the title of this new paper now available via SSRN authored by Sally Evans and Peter Siminski. Here is its abstract:

Climate change has stimulated growing interest in the influence of temperature on cognition, mood and decision making. This paper is the first investigation of the impact of temperature on the outcomes of criminal court cases.  It is motivated by Heyes and Saberian (2019, AEJ: Applied Economics), who found strong effects of temperature on judges' decisions in immigration cases, drawing on 207,000 cases.  We apply similar methods to analyse 2.8 million criminal court cases in the Australian state of New South Wales from 1994 to 2019.  Most of the estimates are precise zeros.  We conclude that outcomes of criminal court cases (which are far more prevalent globally than immigration cases) are not influenced by fluctuations in temperature, an unsurprising but reassuring result.

Crack is still wack for thousands in Florida still carrying unconstitutional convictions from 1980s

This recent AP story, headlined "Florida prosecutor seeks to clear records of people charged with buying police-made crack in 1980s," highlights how remedies for unconstitutional convictions can often be a very long time in coming (if they come at all).  Here are the details:

A Florida prosecutor says he will seek to vacate as many as 2,600 convictions of people who bought crack cocaine manufactured by the Broward County Sheriff’s Office for sting operations between 1988 and 1990.

The Florida Supreme Court ruled in 1993 that people couldn’t be charged in cases where the sheriff’s office made the crack cocaine and undercover deputies then sold it to buyers who were arrested and charged.

Broward County State Attorney Harold F. Pryor said Friday that while his office was reviewing old records, prosecutors realized that many people may still have criminal charges or convictions on their records because of the sting operation. “It is never too late to do the right thing,” Pryor said in a statement.

It’s just one example of how the crack cocaine epidemic of the 1980s and early 1990s led to harsh police practices and heavy criminal penalties. Some people may have been convicted of serious felonies because they bought drugs within 1,000 feet (300 meters) of a school. Conviction under that law required at the time that defendants be sentenced to at least three years in prison.

“They were arresting people not for selling, but for purchasing,” Ed Hoeg, a defense lawyer, told the Sun Sentinel of Fort Lauderdale. At the time, Hoeg was a public defender who represented Leon Williams, whose appeal led to the state Supreme Court outlawing the practice. “They had detention deputies posing as dealers,” Hoeg said. “They would sell it, and these poor people who were addicts were buying it. And they were selling it within 1,000 feet of schools, so the penalties would be greater.”

The sheriff’s office said at the time that it began making crack because it didn’t have enough of the seized drug to use in its sting operations and because it didn’t have to later test the cocaine content of crack made by a sheriff’s office chemist. “We find that the law enforcement’s conduct here was so outrageous as to violate Florida’s due process clause,” the state Supreme Court wrote in the decision....

The review will take “a considerable amount of time,” Pryor said. He said his office will contact people who may be affected.

Prez-Elect Trump reiterates pledge to grant Jan 6 pardons on "first day" in office

Prez-Elect Donald Trump conducted a new interview during which, according to this NBC News piece, he discussed his pardon plans for January 6 defendants.  Here is the start of the article:

President-elect Donald Trump said he is looking to issue pardons to his supporters involved in the attacks on the U.S. Capitol on Jan. 6 as soon as his first day in office, saying those incarcerated are “living in hell.”

Trump’s comments, the most sweeping he’s made since winning the 2024 election, came during an exclusive interview with “Meet the Press” moderator Kristen Welker. He also said that he will not seek to turn the Justice Department on his political foes, and warned that some members of the House committee that investigated the Jan. 6 attack “should go to jail.”  On his first day in office, Trump said he will bring legal relief to the Jan. 6 rioters who he said have been put through a “very nasty system.”

“I’m going to be acting very quickly. First day,” Trump said, adding later about their imprisonment, “they’ve been in there for years, and they’re in a filthy, disgusting place that shouldn’t even be allowed to be open.”  Trump said that there “may be some exceptions” to his pardons “if somebody was radical, crazy” and pointed to some debunked claims about anti-Trump elements and law enforcement operatives infiltrating the crowd.

At least 1,572 defendants have been charged and more than 1,251 have been convicted or pleaded guilty in the attack. Of those, at least 645 defendants have been sentenced to periods of incarceration ranging from a few days to 22 years in federal lockup.  There are roughly 250 people currently in custody, most of them serving sentences after being convicted. A handful are being held in pretrial custody at the order of a federal judge.

Trump didn’t rule out pardoning individuals who had pleaded guilty, including when Welker asked him about those who had admitted to assaulting police officers. “Because they had no choice,” Trump said.

Asked about the more than 900 others who had pleaded guilty in connection to the attack but were not accused of assaulting officers, Trump suggested that they had been pressured unfairly into taking guilty pleas. “I know the system.  The system’s a very corrupt system,” Trump said. “They say to a guy, ‘You’re going to go to jail for two years or for 30 years.’ And these guys are looking, their whole lives have been destroyed. For two years, they’ve been destroyed.  But the system is a very nasty system.”

The crimes that have been charged range from unlawful parading to seditious conspiracy in the sprawling Jan. 6 investigation that included rioters captured on video committing assaults on officers, and who admitted under oath that they’d done so.

If Trump makes good on this pledge to grant pardons to the vast majority of Jan 6 defendants on this first day, he will set all sorts of modern clemency records.  These clemency statistics assembled by DOJ's Office of the Pardon Attorney show it has been half a century since a President has granted more than a few pardons at the start of a term in the Oval Office, and it has been a full century since a President had done more than 1200 pardons in his entire tenure.  (Notably, these DOJ data leave out mass clemencies like Prez Biden's mass marijuana possession pardons; if the Trump does Jan 6 pardons en masse, I am not quite sure how best to run the numbers.)

And, of course, as I have covered in recent posts here and here, lots of folks are urging Prez Biden to go big on clemency in his final weeks in office.  Biden statement in support of his most recent clemency decision suggests, when it comes to his child, he largely agrees with Trump's view on the "very nasty" federal criminal justice.  But since I dooubt, especially in this arena, that Biden is capable of "acting very quickly," we may have to keep waiting to find out if any other people's children might Biden's grace.

Excitingly, any and everyone interested in these issues still has time to register for the online event, "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power," being hosted on December 10 by the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law.  More details and a list of panelist can be found on this event page.  

A few of many recent related posts:

• How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?
• Fascinating account of concerns and chatter over Prez-Elect Trump's pardon plans for Jan 6 defendants 
• Prez-Elect Donald Trump already getting notable clemency requests amid lots of expectations 
• Another report on how pardon possibilities are impacting Jan 6 prosecutions 
• Imagining better clemency traditions than turkey pardons and lame-duck frenzies
• Register for "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power"

Highlighting the successes and limited availability of veteran treatment courts

Law360 has this lengthy new piece, headlined "Veterans Courts Help Some, But Leave Many Others Behind," which provides an effective overview of veteran treatment courts and their limits. I recommend the piece in full, and here are excerpts:

Veterans treatment courts have helped thousands of former service members get much needed help for addiction and mental health problems rather than being incarcerated. But strict eligibility criteria, difficulty identifying veterans in the justice system, and a limited number of courts combine to turn away many veterans who most need their services, according to veterans' advocates.

So those advocates are trying to change how the courts operate to ensure that no veteran in need falls through the cracks. "This is not radical. This is about giving a veteran who raised their right hand to serve the United States a hand up, not a handout," said retired U.S. Army Colonel D.J. Reyes, who mentors veteran defendants in Florida. "They made a mistake. Does that mean we just throw them in prison with no rehab or treatment?"...

Hundreds of diversionary courts intended specifically for criminal defendants who served in the military have sprung up across the country since the first veterans treatment court, or VTC, was established in Buffalo, New York, in 2008.

VTCs integrate the criminal justice system, the VA, drug treatment programs, community organizations and veteran mentors to offer help and services rather than incarceration to former service members who run into trouble with the law due to substance abuse or mental health issues.

A growing number of veterans need that help, according to experts, who blame that increase on post-traumatic stress, traumatic brain injuries, addiction, military sexual trauma and difficulty readjusting to civilian life after repeated deployments during the wars in Iraq and Afghanistan.

One in three veterans report having been arrested, according to the Council on Criminal Justice's Veterans Justice Commission. Around 181,000 veterans are currently behind bars, according to All Rise, a nonprofit that provides training and best practices for specialized treatment court programs.

"When we take our young men and women, and we train them to be part of the most lethal force on the planet, and then we ask them to go do their job, some of them struggle when they come home with just being normal again," said Veterans Justice Commission Director Jim Seward.

So VTCs are intended to sentence veterans who plead guilty to usually lower-level, nonviolent offenses to addiction and mental health treatment and mentorship rather than prison. Defendants attend regular treatment sessions, discuss their progress with the court, and undergo random drug testing, among other requirements....

The programs have been successful, according to experts. VTCs help approximately 15,000 veterans each year, according to Scott Tirocchi, division director of Justice for Vets, All Rise's veterans court division.

The court in Hillsborough, Florida, where Reyes mentors defendants, averages a single-digit recidivism rate, he said. In Ohio, Cuyahoga County's court has a graduation rate of 76.2%, according to Judge Andrew J. Santoli, who presides over that VTC. And only 9.1% of the participants of the VTC in Oklahoma County, Oklahoma, are charged with a new offense after completing the program, according to Program Coordinator Kiel Kuroki, a U.S. Air Force veteran who participated in a veterans diversion program himself....

But many of the veterans who most need help aren't getting it, advocates say.  According to the U.S. Department of Justice, VTCs only serve about 10% to 15% of justice-involved veterans....

[T]he exceedingly limited number of VTCs further exacerbates the lack of access.  Around 85% of the counties in America don't have a VTC, and there are barely any veterans courts in the federal court system, according to Seward.

Congress did pass the Veterans Treatment Court Coordination Act in 2020 directing the attorney general to establish a grant program to help fund state and local VTCs, but there seems to be no organized effort to create VTCs at the federal level. Only a few federal VTCs have been established by individual federal judges.... The result is that, while VTCs have helped many service members, a good deal of veterans are still falling through the cracks.

Some of many, many prior related posts:

• Should prior military service reduce a sentence?
• "Military Veterans, Culpability, and Blame" 
• "Justice for Veterans: Does Theory Matter?"
• "Executive Summary: National Survey of Veterans Treatment Courts"
• Notable RAND review of data and research on "justice-involved veterans" 
• CCJ's Veterans Justice Commission releases "Honoring Service, Advancing Safety: Supporting Veterans From Arrest Through Sentencing" 
• "Best Practices: Report on Improving Veterans’ Incarceration and Reentry in Florida"
• Council on Criminal Justice releases new policy roadmap encouraging alternatives to prosecution and incarceration for justice-involved veterans 
• How about some clemency grants, Prez Biden, to really honor vets in need on Veterans Day?

SCOTUS grants cert to address whether/when amended habeas petition is a second application

The Supreme Court on Friday arfternoon granted cert via this order list in two new matters.  One case, Rivers v. Lumpkin, involves an issue of modern federal habeas procedure.  Here is how this cert petition, filed on behalf of a Texas prisoner, presented the question:

Under the federal habeas statute, a prisoner “always gets one chance to bring a federal habeas challenge to his conviction,” Banister v. Davis, 590 U.S. 504, 509 (2020). After that, the stringent gatekeeping requirements of 28 U.S.C. § 2244(b)(2) bar nearly all attempts to file a “second or successive habeas corpus application.” Here, petitioner sought to amend his initial habeas application while it was pending on appeal. The Fifth Circuit applied § 2244(b)(2) and rejected the amended filing.

The circuits are intractably split on whether § 2244(b)(2) applies to such filings.  The Fifth, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits hold that § 2244(b)(2) categorically applies to all secondin-time habeas filings made after the district court enters final judgment.  The Second Circuit disagrees, applying § 2244(b)(2) only after a petitioner exhausts appellate review of his initial petition.  And the Third and Tenth Circuits exempt some second-in-time filings from § 2244(b)(2), depending on whether a prisoner prevails on his initial appeal (Third Circuit) or satisfies a seven-factor test (Tenth Circuit).

The question presented is: Whether § 2244(b)(2) applies (i) only to habeas filings made after a prisoner has exhausted appellate review of his first petition, (ii) to all second-in-time habeas filings after final judgment, or (iii) to some second-in-time filings, depending on a prisoner’s success on appeal or ability to satisfy a seven-factor test.

Another report on how pardon possibilities are impacting Jan 6 prosecutions

Politico has this new article providing another account of how Prez-Elect Donald Trump's Jan 6 pardon pledges are echoing through Jan 6 criminal cases. The full title of the piece captures its themes: "Judges push back as Trump’s return sparks defiance from Jan. 6 defendants: In multiple sentencings Friday, judges saw firsthand how attentively some Jan. 6 perpetrators heed their reprimands. (Which is to say, not at all.)" Here are some excerpts:

A vibe shift sparked by Trump’s imminent takeover of Washington has begun seeping into the marble halls of the federal courthouse, where nearly 1,600 members of the Jan. 6 mob have faced charges. On Friday, at four sentencing hearings, judges appointed by presidents of both parties wrestled with their warnings about the fragility of democracy while bracing for Trump to make good on his promise to pardon many of those they say perpetrated one of the greatest domestic threats in American history.

“The lie that the [2020] election was stolen is still being disseminated,” said U.S. District Judge Amy Berman Jackson, who also excoriated efforts by some Jan. 6 defenders to label the perpetrators “hostages” or “victims” of an abusive government. Jackson didn’t mention Trump by name but said storming the Capitol “at the direction of a disappointed candidate” was “the definition of tyranny and authoritarianism.” Far from dying down over the past four years, the Barack Obama-appointed jurist said at a sentencing hearing Friday for a member of the Proud Boys: “The volume’s getting turned up.”

Down the hall, one of the most prominent members of the Jan. 6 mob — Texas’ Guy Reffitt — was doing just that, lambasting the “bullshit” he said was coming from the judge in his own case, Trump-appointed U.S. District Judge Dabney Friedrich.

Reffitt, who has been in prison since early 2021, said he had been “in my feelings” for the last four years as a result of Biden’s victory. “Trump is now going to be the president of the United States,” Reffitt said as he attacked the case against him in an expletive-laden tirade. “I’m out of my feelings.”

Friedrich, who re-sentenced Reffitt to nearly seven years in prison, worried that he had become increasingly entrenched in his lack of remorse for his role at the vanguard of the riot. Reffitt, she said, “does seem to revel in his status” as a hero to the small but vocal group of Jan. 6 defenders and “loves the J6 family dynamics.”...

For many Jan. 6 defendants and their allies, the judges’ admonitions are increasingly falling flat. Many of them, emboldened by Trump’s rise, openly shrug the warnings off. As Reffitt walked out of the courtroom to be returned to prison, Brandon Fellows — who served most of a 3.5-year sentence for surging into the Capitol and putting his HTML feet on a senator’s private desk — called to him: “Guy, you’ll be out soon.”

Other defendants, too, have begun to feel the momentum swing in their favor, often trading sentiments of remorse in favor of defiance and confidence that Trump will soon swoop in to spare them any prison time.

A few recent related posts:

• How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?
• Fascinating account of concerns and chatter over Prez-Elect Trump's pardon plans for Jan 6 defendants 
• Prez-Elect Donald Trump already getting notable clemency requests amid lots of expectations 
• Imagining better clemency traditions than turkey pardons and lame-duck frenzies
• Register for "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power"

"Major-Questions Lenity"

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

There is a fundamental connection between the historic rule of lenity and the new major questions doctrine.  At their core, both doctrines reflect a commitment to the separation of powers on important questions of policy.  In light of that shared justification, the logic of the newly articulated major questions doctrine in the administrative-law context has much to offer lenity in the criminal-law context, and the major-questions framework is strikingly similar to a rationale that has begun to emerge in some of the Supreme Court’s recent decisions adopting narrow constructions of federal penal statutes.  That emerging rationale can be understood as a modest form of major-questions lenity that may lead to a more robust version of the doctrine.

The Court significantly weakened lenity in the mid-twentieth century, and it now plays virtually no role in the construction of federal penal statutes.  Instead, the Court relies on a set of more targeted interpretive tools for narrowly construing certain penal statutes.  The practical effect is a regime of partial leniency that deprioritizes the generic separation-of-powers value on which historic lenity was based while elevating more targeted concerns.  As a result, for most penal statutes, the principle that clear crime definition is the legislature’s obligation has been lost, and outcomes often turn on whether courts will exercise implicitly delegated lawmaking authority to adopt narrow constructions on a largely discretionary and ad hoc basis.

A robust major-questions lenity would work to restore historic lenity’s insistence on legislative clarity in crime definition.  It would promote the separation of powers by disciplining prosecutors, courts, and ultimately Congress.  Major-questions lenity would substantially limit the practice of implicit delegation of crime definition and help to curb the adoption of overly broad and literalistic constructions of penal states in the lower courts.

Are "pragmatic prosecutors" now the next big thing?

The question in the title of this post is promoted by this new piece from Lisel Petis over at R Street, which is titled "Move over progressive prosecutors, pragmatic prosecutors are the new 'it' thing."  Though I have never been an "it" thing, I do sometimes think of myself as pragmatic, so I am intrigued by this latest prosecutorial version of "new Coke."  I recommend the piece in full, and here is how it gets started (with links from the original):

If you follow the arc of criminal justice over the past few decades, you can see clear trends emerge. From the “tough on crime” era of the 1980s and 1990s that fueled mass incarceration to the progressive wave advocating sweeping reforms that were intended to keep more people out of jails and prisons, the pendulum has swung dramatically in just a short period of time.  But now we are entering what might be a “sweet spot” that better balances fairness and safety. Evidence of this trend is apparent in a new kind of prosecutor popping up in states across the country. 

Despite a recent drop in national crime rates—and drastic reductions since the 1990s — public concern about crime and safety remains high.  High-profile incidents, sensationalized media coverage, and a rise in homelessness have fueled a perception that crime is getting worse.  Much of the blame has been directed at so-called “soft-on-crime” policies and progressive prosecutors, whose reforms — such as reducing the use of cash bail, diverting low-level offenders from the system, and shorter sentences — are often criticized as prioritizing offenders over victims.

Enter the pragmatic prosecutor. This “new” type of prosecutor isn’t about choosing sides between punitive crackdowns or lenient approaches. Instead, they are reimagining justice as a complex ecosystem that requires strategic, targeted interventions that draw from the strengths of both philosophies.

Another week with another notable set of prison headline and stories

A number of notable and mostly disheartening press pieces aabout prison realities caught my eye this week, and here is a round up:

From the AP, "The US government is closing a women’s prison and other facilities after years of abuse and decay"

From the AP, "Justice Department announces sweeping reforms to curb suicides in federal prisons and jails"

From Cleveland.com, "‘Wreaking havoc’: Cleveland gang emulated Mafia, killed man and ran drug-ring, feds say"

From The Guardian, "Inmates burn themselves in protest at ‘inhumane’ Virginia prison conditions"

From Honolulu Civil Beat, "The Mental Health Crisis In Hawaii’s Prisons: ‘The Suicides Keep Coming’"

From the Marshall Project, "After Jail Deaths and No Justice, This Kentucky Lawyer Tried to Make a Difference"

From Stateline, "State prisons turn to extended lockdowns amid staffing shortages, overcrowding"

Federal judge rejects latest plea deal between Boeing and the US government

As reported in this CNN piece, a "federal judge on Thursday rejected a plea agreement between Boeing and the US government after the company said it would plead guilty to deceiving the Federal Aviation Administration ahead of two fatal 737 Max crashes." Here are the basics:

The rejection by US District Court Judge Reed O’Connor citied his problems with the selection process for a independent monitor required in the plea deal to oversee safety and quality improvement at Boeing.

Boeing agreed in July to plead guilty to one charge of conspiracy to defraud the United States. Under the plea agreement it would pay up to $487 million in fines — a fraction of the $24.8 billion that families of victims of the two crashes want the company to pay.

O’Connor had problems with the idea that the Justice Department, not the court, would have approval over the selection of the monitor and how Boeing had performed under an earlier settlement with the Justice Department in January 2021 over the same charges.  That agreement had deferred prosecution until the safety issues were again raised by a door plug blowing off a 737 Max plane flown by Alaska Airlines in January.

“It is fair to say the government’s attempt to ensure compliance has failed,” O’Connor wrote in his opinion. “At this point, the public interest requires the court to step in. Marginalizing the court in the selection and monitoring of the independent monitor as the plea agreement does undermines public confidence in Boeing’s probation.”  One of O’Connor’s problems with the plea agreement was that the Justice Department had said Boeing and Justice would have to consider race when hiring the independent monitor. But he also was upset that the court did not have a role in the selection process....

“Rejection of the plea deal is an important victory of the families in this case and, more broadly, crime victims’ interests in the criminal justice process,” said Paul Cassell, attorney for family members of crash victims, in a statement. “No longer can federal prosecutors and high-powered defense attorney craft backroom deals and just expect judges to approve them. Victims can object – and when they have good reasons for striking a plea, judges will response.”

“This order should lead to a significant renegotiation of the plea deal to reflect the 346 deaths Boeing criminally caused and put in place proper monitoring of Boeing to ensure that it never again commits a crime like this in the future,” he added.

The full 12-page order from Judge O'Connor is available at this link.

Prior related post:

• Could families of crash victims disrupt the latest plea deal Boeing has accepted from the feds?
• Crash victims' families formally object to proposed Boeing plea deal 

Lots of news and new resources from the US Sentencing Commission

Via email yesterday afternoon, I received news of a number of new items coming from the US Sentencing Commission.  Drawing text and links from the email, here are just some of items with a few links:

Notice of Public Meeting

The Commission has scheduled a public meeting for Thursday, December 19, 2024 at 2:00 pm (EST)he meeting will be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., in Suite 2-500 (South Lobby).  The Commission will livestream and record this event.

The agenda follows:

• Vote to Adopt August 2024 Meeting Minutes
• Report from the Chair
• Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment....

Preliminary FY24 Fourth Quarterly Data Report 

The Commission released its first full look at the FY24 federal sentencing caseload.

Preliminary Data Highlights

• In FY24, 61,137 individuals were sentenced federally — representing a decrease from the previous fiscal year.
• Nearly equal proportions of individuals were sentenced for a drug (30.0%) or immigration (29.7%) offense.
• Methamphetamine was the most common drug involved in federal drug offenses (45.8%) followed by fentanyl (21.8%) and powder cocaine (19.4%). 

2023 Firearms Amendments

Commission staff break down the 2023 changes and additions to the firearms guideline, including new offenses and increased penalties. They answer frequently asked guideline questions about proliferation of firearm switches and auto sears, and more.

Robbery Primer

This primer offers an overview of statutes, sentencing guidelines, and case law related to selected federal robbery offenses.

"Compassionless Plea Bargaining"

The title of this post is the title of this new paper authored by Julian Cook available via SSRN. Here is its abstract:

Too often, the guilty plea hearing process practiced in our federal courts fails to adequately ensure the validity of a defendant's change of plea decision.  Rather than engage in colloquies that are sufficiently in-depth and truly aimed at ascertaining voluntariness and defendant comprehension, critical details are frequently glossed over, and defendant guilty pleas are accepted without meaningful inquiry.

While academics have skillfully critiqued the Sixth Amendment and its trial-focused provisions, comparatively scant focus has been expended on the equally, if not more, critical change of plea hearing.  Compassionless Plea Bargaining seeks to fill this gap with its focus on a recent controversy that threatened to engulf the Biden Administration's Department of Justice into an unfortunate — and arguably embarrassing — controversy.

In December 2018, President Donald Trump signed into law the First Step Act.  Designed primarily to address the nation's mass incarceration crisis, one of its more overlooked features was a provision that addressed sentencing modification.  Commonly referred to as compassionate release, the Act sought to ease the ability of defendants to obtain a modification of their sentence in the event of an extraordinary life circumstance.  During the COVID-19 pandemic, as the virus spread rapidly through correctional facilities, compassionate release requests predictably skyrocketed — and so did the workload of federal prosecutors tasked to respond to these motions.  As a result, many U.S. Attorney's Offices included provisions in plea agreements requiring defendants to forgo their compassionate release rights under the Act in exchange for the concessions offered by the government.  A brewing controversy ensued, with critics, including the National Association of Criminal Defense Lawyers, arguing that the government was leveraging its substantial negotiating power, and defendants were often agreeing to such waivers in the absence of a full awareness of the attendant consequences.  In response, Attorney General Merrick Garland discontinued the practice in March 2022.  However, the reprieve is likely to be short-lived, as future attorneys general will almost certainly resuscitate the practice.

The byproducts of a guilty plea are varied, deeply consequential, and, as evidenced in the compassionate release context, can even be fatal.  This Article explains why federal change of plea hearings too often fail to adequately assess the knowledge and voluntariness underlying a defendant's guilty plea and offers a proposal for reform.