Wednesday, June 29, 2022

Furman at 50: so much and so little

On this date exactly 50 years ago, the US Supreme Court handed down its remarkable death penalty opinion in Furman v. Georgia, 408 U.S. 238 (1972). All nine Justices wrote separate opinions in Furman, resulting in one of the longest decision in the Court's history.  But the actual opinion of the Court is a so short that I can be reprinted it in full here: 

PER CURIAM.

Petitioner in No. 69—5003 was convicted of murder in Georgia and was sentenced to death pursuant to Ga. Code Ann. § 26—1005 (Supp.1971) (effective prior to July 1, 1969). 225 Ga. 253, 167 S.E.2d 628 (1969).  Petitioner in No. 69—5030 was convicted of rape in Georgia and was sentenced to death pursuant to Ga. Code Ann. § 26—1302 (Supp.1971) (effective prior to July 1, 1969). 225 Ga. 790, 171 S.E.2d 501 (1969). Petitioner in No. 69—5031 was convicted of rape in Texas and was sentenced to death pursuant to Vernon's Tex. Penal Code, Art. 1189 (1961). 447 S.W.2d 932 (Ct.Crim.App.1969).  Certiorari was granted limited to the following question: 'Does the imposition and carrying out of the death penalty in (these cases) constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?' 403 U.S. 952, 91 S.Ct. 2287, 29 L.Ed.2d 863 (1971).  The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.  The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings. So ordered.

Judgment in each case reversed in part and cases remanded.

Mr. Justice DOUGLAS, Mr. Justice BRENNAN, Mr. Justice STEWART, Mr. Justice WHITE, and Mr. Justice MARSHALL have filed separate opinions in support of the judgments.  THE CHIEF JUSTICE, Mr. Justice BLACKMUN, Mr. Justice POWELL, and Mr. Justice REHNQUIST have filed separate dissenting opinions.

There are so many interesting elements to the Court's work in Furman, and so much to what has transpired in the subsequent half century, I cannot do this topic any kind of justice in just a few blog posts. But, with summer just getting started, perhaps I will do a series of posts (and welcome guest posters) through the summer months on Furman at 50.  As the title of this post suggests, one theme I always develop when I teach Furman is that the ruling and its aftermath can be viewed as having achieved so much or as having achieved so little.  I am not sure which framing may be central in future posts, but I suppose time will tell how the half-century spirit of Furman might move me.

June 29, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Is the Bruen Second Amendment ruling really "an important step to ending mass incarceration"?

As highlighted by prior posts here and here, I am intrigued by what Supreme Court's big Bruen ruling (basics here) will mean from Second Amendment jurisprudence and a variety of gun prohibitions.  But the question in the title of this post is prompted by this  Washington Post opinion piece by Aimee Carlisle, Christopher Smith and Michael Alexander Thomas which seems to have particular grand expectations about what Bruen could bring.  Here are excerpts:

As public defenders in New York City who represent people charged with illegal gun possession — people who, according to the New York City Police Department’s own data, are almost invariably Black and Brown — we see the majority’s decision in New York State Rifle & Pistol Association v. Bruen as an important step to ending mass incarceration.  That’s why we joined other public defenders in filing an amicus brief in the case asking the court to abandon its ivory tower and consider the law’s impact on those people who bear the brunt of New York’s gun laws — our clients....

Because possession of an unlicensed, loaded firearm is a “violent felony” under New York law, people with no criminal record who are convicted face a mandatory minimum sentence of 3½ years in prison; the maximum is 15 years.  They can lose their jobs, their housing, their children and, if they are not citizens, their right to live in the United States. All for carrying a gun without ever threatening anyone or pulling the trigger — conduct that in many states is not a crime at all....

Now, following the landmark ruling in Bruen, New York can no longer impose hurdles that render the Second Amendment a fiction.... The solution to gun violence is not imprisoning people simply for carrying a gun — and burdening them with the lifelong consequences that follow.  The only acceptable solution must reject racist intent and impact at every stage.  We must break our addiction to mass incarceration.

The next steps are clear.  Now that the Supreme Court has spoken, prosecutors must dismiss all gun cases that punish people for engaging in constitutionally protected activity and free them from jail.  As state lawmakers weigh their legislative response to the decision, we hope they will finally safeguard New Yorkers’ right to keep and bear arms and create a system free of racism.

I always eager to see our laws move away, in any and every possible way, from unnecessary and excessive incarceration.  And I am hopeful that any and all persons now incarcerated based on criminal laws that Bruen makes constitutional will swiftly get justice pursuant to their constitutional rights.  But there is a long history of legislators, prosecutors and others often working quite hard to restrict which defendants get retroactive relief from major Supreme Court ruling and to find new ways to criminalize a broad swatch of disfavored conduct.  Though Bruen may end up having lots of echoes, I am not certainly expecting it to make a real dent in our nation's incarceration levels.  

Prior recent related posts:

June 29, 2022 in Gun policy and sentencing, Race, Class, and Gender, Scope of Imprisonment, Second Amendment issues, Who Sentences | Permalink | Comments (0)

Via 5-4 ruling, Supreme Court limits reach of McGirt to rule states can "prosecute crimes committed by non-Indians against Indians in Indian country"

The last big criminal law case on the Supreme Court's docket was handed down this morning, and the Court split 5-4 in Oklahoma v. Castro-Huerta, No. 21-429 (S. Ct. June 29, 2022) (available here). The opinion for the Court was authored by Justice Kavanaugh, and it starts and ends this way: 

This case presents a jurisdictional question about the prosecution of crimes committed by non-Indians against Indians in Indian country: Under current federal law, does the Federal Government have exclusive jurisdiction to prosecute those crimes?  Or do the Federal Government and the State have concurrent jurisdiction to prosecute those crimes?  We conclude that the Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country....

We conclude that the Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country.  We therefore reverse the judgment of the Oklahoma Court of Criminal Appeals and remand the case for further proceedings not inconsistent with this opinion.

Justice Gorsuch authored the dissent, which was joined by Justices Breyer, Sotomayor and Kagan. It starts this way:

In 1831, Georgia arrested Samuel Worcester, a white missionary, for preaching to the Cherokee on tribal lands without a license.  Really, the prosecution was a show of force — an attempt by the State to demonstrate its authority over tribal lands. S peaking for this Court, Chief Justice Marshall refused to endorse Georgia’s ploy because the State enjoyed no lawful right to govern the territory of a separate sovereign.  See Worcester v. Georgia, 6 Pet. 515, 561 (1832).  The Court’s decision was deeply unpopular, and both Georgia and President Jackson flouted it.  But in time, Worcester came to be recognized as one of this Court’s finer hours.  The decision established a foundational rule that would persist for over 200 years: Native American Tribes retain their sovereignty unless and until Congress ordains otherwise.  Worcester proved that, even in the “[c]ourts of the conqueror,” the rule of law meant something. Johnson’s Lessee v. McIntosh, 8 Wheat. 543, 588 (1823).

Where this Court once stood firm, today it wilts.  After the Cherokee’s exile to what became Oklahoma, the federal government promised the Tribe that it would remain forever free from interference by state authorities.  Only the Tribe or the federal government could punish crimes by or against tribal members on tribal lands.  At various points in its history, Oklahoma has chafed at this limitation.  Now, the State seeks to claim for itself the power to try crimes by non-Indians against tribal members within the Cherokee Reservation.  Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another’s.  Respectfully, I dissent.

June 29, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Homicides (perhaps) trending down through first half of 2022, including in big cities like Chicago, New York City and Philadelphia

With significant upticks in homicides and some other crimes reported in many areas throughout the US in 2020 and 2021(see background/complications here and here and here and here), it is not surprising that there is considerable concern in many quarters about crime policies and crime politics.  Still, anyone who follows crime trends knows they can often have an unpredictable and unexplained quality.  Against that backdrop, I have been watching closely the homicides being reported via police crime reports in various cities over the first half of 2022.  In particular, this AH Datalytics webpage provides a very helpful "YTD Murder Comparison" Dashboard that collects homicide data from police in nearly 100 big cities. 

Though the AH Datalytics page has some lags in the data and only has city data, I still think it notable as we approach the end of the first half of 2022 that this dashboard as of this morning indicates that nearly two-thirds of all cities are reporting that homicides are down in 2022 relative to 2021.  In addition, the cumulated data from all the cities tracked show that nationwide murders in large cities are down more than 2%.  Also notable are encouraging downward trends in homicides over the first half of this year in some of our nation's largest cities.  Specifically, based on (linked) police reports, we see: 

Chicago homicides down 11% (as of June 19)

Los Angeles homicides up 1% (as of June 25)

New York City homicides down 13% (as of June 26)

Philadelphia homicides down 10% (as of June 28)

(I could not find up-to-date homicide data from Houston and Phoenix.)  Of course, these four very big cities (and all the AH Datalytics cities) are not fully representative of what may be going on with homicides in every area nationwide.  Moreover, these reported homicide declines are on the heels of notably high homicide rates in many locales in 2021.  And a few mass shootings (or bad days) in these cities could erase the small homicide safety gains over the first half of 2022.  Still, with all these caveats, these encouraging data at least provide a basis for me to begin to hope that surging homicides in 2020 and 2021 were mostly a pandemic era phenomenon and that we may return to lower homicide rates before too long.  But, reiterating that homicide and broader crime trend often have unpredictable and unexplained qualities, it is certainly possible that six months from now the 2022 data could tell a very different story.

June 29, 2022 in National and State Crime Data | Permalink | Comments (0)

Tuesday, June 28, 2022

"The Fat Prisoners’ Dilemma: Slow Violence, Intersectionality, and a Disability Rights Framework for the Future"

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

Law has ignored the problems of fatness in prisons and jails and regularly fails to address much-needed accommodations for fat incarcerated people due to flaws in incarceration law and applications of disability law.

The dilemma of fat incarcerated people extends beyond litigation difficulties, however.  It is a heuristic that illustrates the depth of the harm of mass incarceration and the need to take disability seriously — and how complicated taking disability seriously is.  Attention to the social inequities that produce and maintain the population of fat people in prisons exposes a profound tension in disability scholarship and activism.  Typically, disability scholarship and advocacy seek to unite a disability community of people with varying bodily impairments by focusing on stigma and stereotyping. While people’s bodies are different, all disabled people experience ableism.  This Article contends that disability scholars and advocates can and should augment their focus on stigma and stereotyping to emphasize the social inequities such as environmental poisoning, racism, poverty, and violence that produce many debilitating impairments.  This proposal is an uncomfortable proposition for disability scholarship and advocacy wary of eugenic treatment and “cures.”  Reducing social inequities would reduce the population of disabled people, and advocacy to improve the environmental predecessors to impairment could be viewed as a condemnation of the state of disability itself.

However, proper attention to intersectional injustice in conjunction with respect for disabled people requires thoughtful consideration of the production of impairments.  Although not all disabilities are the result of social injustice, knitting together social inequality and disability would reorient the field on those who are most marginalized, redirect it toward a greater reliance on intersectional principles, and link it to other political and legal campaigns that challenge injustice.

June 28, 2022 in Prisons and prisoners | Permalink | Comments (3)

Ghislaine Maxwell given 20-year federal sentence for sex trafficking for Jeffrey Epstein

In this post over the weekend, I asked in anticipation of today's high-profile sentencing, "what federal sentence for convicted sex trafficker Ghislaine Maxwell?."  Commentor tmm nailed the outcome, as reported here by the AP:

Ghislaine Maxwell, the jet-setting socialite who once consorted with royals, presidents and billionaires, was sentenced to 20 years in prison Tuesday for helping the financier Jeffrey Epstein sexually abuse underage girls.  The stiff sentence was the punctuation mark on a trial that explored the sordid rituals of a predator power couple who courted the rich and famous as they lured vulnerable girls as young as 14, and then exploited them.

Prosecutors said Epstein, who killed himself in 2019 while awaiting trial, sexually abused children hundreds of times over more than a decade, and couldn’t have done so without the help of Maxwell, his longtime companion and onetime girlfriend who they said sometimes also participated in the abuse.  In December, a jury convicted Maxwell of sex trafficking, transporting a minor to participate in illegal sex acts and two conspiracy charges.

U.S. District Judge Alison J. Nathan, who also imposed a $750,000 fine, said “a very significant sentence is necessary” and that she wanted to send an “unmistakable message” that these kinds of crimes would be punished.  Prosecutors had asked the judge to give her 30 to 55 years in prison, while the 60-year-old Maxwell’s defense sought a lenient sentence of just five years....

When she had a chance to speak, Maxwell said she empathized with the survivors and that it was her “greatest regret of my life that I ever met Jeffrey Epstein.” Maxwell called him “a manipulative, cunning and controlling man who lived a profoundly compartmentalized life,” echoing her defense attorneys’ assertions that Epstein was the true mastermind. Maxwell, who denies abusing anyone, said she hoped that her conviction and her “unusual incarceration” bring some “measure of peace and finality.”

Nathan refused to let Maxwell escape culpability, making clear that Maxwell was being punished for her own actions, not Epstein’s. She called the crimes “heinous and predatory” and said Maxwell as a sophisticated adult woman provided the veneer of safety as she “normalized” sexual abuse through her involvement, encouragement and instruction....

Assistant U.S. Attorney Alison Moe recounted how Maxwell subjected girls to “horrifying nightmares” by taking them to Epstein. “They were partners in crime together and they molested these kids together,” she said, calling Maxwell “a person who was indifferent to the suffering of other human beings.”

Epstein and Maxwell’s associations with some of the world’s most famous people were not a prominent part of the trial, but mentions of friends like Bill Clinton, Donald Trump and Britain’s Prince Andrew showed how the pair exploited their connections to impress their prey.

Over the past 17 years, scores of women have accused Epstein of abuse them, with many describing Maxwell as the madam who recruited them.  The trial, though, revolved around allegations from only a handful of those women.  Four testified that they were abused as teens in the 1990s and early 2000s at Epstein’s mansions in Florida, New York, New Mexico and the Virgin Islands....

At least eight women submitted letters to the judge, describing the sexual abuse they said they endured for having met Maxwell and Epstein.  Six of Maxwell’s seven living siblings wrote to plead for leniency.  Maxwell’s fellow inmate also submitted a letter describing how Maxwell has helped to educate other inmates over the last two years.  Anne Holve and Philip Maxwell, her eldest siblings, wrote that her relationship with Epstein began soon after the 1991 death of their father, the British newspaper magnate Robert Maxwell.

Based on the sentencing filings noted in this prior post, I believe the Government argued the applicable federal sentencing guideline range was 360 month-life, but this CBS article indicates that Judge Nathan concluded the proper guideline range was 188-235 months.  So, by adopting a more lenient guideline calculation, Judge Nathan technically gave Maxwell and above-guideline sentence.

Prior related posts:

June 28, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (2)

Monday, June 27, 2022

Ohio Gov extends state's unofficial moratorium on executions

Not all that long ago, Ohio was one of the busiest states not named Texas when it came to carrying out executions.  Specifically, between 2002 and 2013, the Buckeye State carried out 50 executions.  Ohio was also innovative in this era, pioneering in 2009 a new one-drug execution protocol that had not previously been used in the state.  But, due in part to some execution problems and in part to some effective litigation, times have really chanced.  Only four executions have been carried out in Ohio over the last eight years, and an unofficial moratorium now looks poised to extend at least into 2023.  This new AP article, headlined "Ohio Governor Postpones Last Scheduled 2022 Execution," explains:

Ohio Gov. Mike DeWine has postponed the last execution that was scheduled for this year, pushing the October date for Quisi Bryan, convicted of killing a Cleveland police officer, to early in 2026.

The move once again called into question the functionality of capital punishment in the state.  With an unofficial moratorium in place, a veteran defense attorney recently argued there's no point in holding a death penalty trial for his client, accused in the 2016 massacre of a southern Ohio family.  “Why should we have to go through a death penalty trial when Ohio doesn’t have the death penalty?” attorney John Parker said June 21 at a hearing for George Wagner IV, charged in the killing of eight members of the Rhoden family....

DeWine's decision Friday to postpose Bryan's execution was one of several reprieves the governor has issued in recent years as the state struggles to find an adequate supply of drugs for lethal injection.

DeWine, a Republican, has attributed the need for the reprieves to the state’s ongoing inability to obtain drugs from pharmaceutical companies.  DeWine has said he is concerned that drug companies — which oppose the use of their drugs in executions — could pull pharmaceuticals from state hospitals to punish Ohio if it did secure their drugs and use them for lethal injection.

Currently, 11 men are scheduled for execution next year. But it's likely that, should DeWine be reelected, those would also be postponed....  The state’s last execution was July 18, 2018, when Ohio put to death Robert Van Hook for killing a man he met in a bar in Cincinnati in 1985.

June 27, 2022 in Clemency and Pardons, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

SCOTUS ruling in Concepcion, while addressing crack cases, should also resolve circuit split on compassionate release factors

There are many notable aspects to the Supreme Court's work this morning in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here).  The votes alone could justify many posts, with Justices Thomas and Gorsuch joining an opinion broadly praising broad district court sentencing discretion (citing historical cases for good measure), and with all the other conservative justices embracing a fairly impractical (and unjust) statutory construction without considering any statutory canons. 

More generally, in keeping with my prior complaints about the oral arguments in this case, I was struck that none of the opinions in Concepcion mention sentencing purposes or justice or fairness even once in a case that concerns efforts by Congress to give full effect to the Fair Sentencing Act through the FIRST STEP Act.  The fundamental legal issue in Concepcion was whether a group of defendants (almost all of whom are persons of color) who have been serving, according to Congress, unjust and wrongful federal sentences for more than a dozen years should be limited in how they can now argue for more just and rightful sentences.  And, given that the defendant in the case had already served 15 years (of a 19-year sentence) for a conviction based on selling a tablespoon of crack, there are an array of rich legal and human stories here that justify further attention.

But, as the title of this post highlights, I am already thinking about what the Concepcion ruling means outside the crack context.  Specifically, I think the decision resolves not only the circuit split surrounding crack resentencing cases, but also the circuit split surrounding what factors can serve as the basis for compassionate release after the FIRST STEP Act.  Let me explain.

As most recently highlighted via this post about a First Circuit ruling in February, there is a deep circuit split about whether non-retroactive changes in sentencing law may constitute "extraordinary and compelling reasons" for compassionate release.  Ever the textualist, I have argued that non-retroactive changes in sentencing law can provide the basis for compassion release because nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors.  But I believe the Third, Sixth, Seventh and Eighth Circuits have all formally held otherwise.  And yet, this language from the Supreme Court's opinion in Concepcion would seem to undercut any court efforts to invent extra-textual limits on sentencing or resentencing considerations:

It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained....

Federal courts historically have exercised this broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them.  That discretion also carries forward to later proceedings that may modify an original sentence.  Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence....

The only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution....

Moreover, when raised by the parties, district courts have considered nonretroactive Guidelines amendments to help inform whether to reduce sentences at all, and if so, by how much....  Nothing express or implicit in the First Step Act suggests that these courts misinterpreted the Act in considering such relevant and probative information.

All this language about a court's broad discretion not only at initial sentencing but also when considering a sentence modification is directly relevant to federal judges' consideration of so-called compassionate release motions.  Concepcion makes plain, contrary to the problematic rulings of some circuits, that the "only limitation" on valid considerations are those in the Constitution or that Congress has expressly set forth.  And thus the Supreme Court's textualist ruling here ought to not only benefit Carlos Concepcion, but also every federal prisoner moving for compassionate release on any and all possible grounds not expressly excluded by Congress or the Constitution.

Prior related post:

June 27, 2022 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

US Sentencing Commission releases another recidivism report examining "status points" in criminal history calculations

Despite lacking a quorum, the US Sentencing Commission keeps churning out a remarkable amount of research in recent times, especially in the area of recidivism of federal offenders.  Today brings this notable notable USSC report on recidivism and criminal history under the title "Revisiting Status Points."  The term "status points" is a short-hard reference to the two points added to a defendant's criminal history score under guideline § 4A1.1(d) if he committed the offense while still serving a sentence in another case (eg, while being on probation or parole).  This webpage provides an overview and key findings from the new report:

Overview

In 2005, the Commission examined status points (addressed in §4A1.1(d)) as part of a broader analysis of how well the guidelines’ criminal history computation predicts recidivism.  This report revisits the examination of status points with greater focus, including a detailed analysis of their application and significance.  The report begins by outlining how criminal history is calculated under the guidelines and by reviewing prior Commission research on the association between criminal history and recidivism.  The report then examines how many offenders received status points in the last five fiscal years and compares them to offenders who did not receive status points.  Next, the report analyzes the rearrest rates for offenders with and without status points who were released from prison or began a term of probation in 2010.  Finally, the report considers how much status points contribute to the criminal history score’s prediction of rearrest.

Key Findings

In the last five fiscal years:

  • Over one-third of federal offenders (37.5%) received two “status points” under §4A1.1(d) as part of their criminal history scores. For 61.5 percent of such offenders, the inclusion of the two points resulted in a higher Criminal History Category.
  • The vast majority of offenders who received status points (92.6%) had criminal history scores that placed them in Criminal History Category III and higher, compared to a little less than half of offenders who did not receive status points (47.0%)....

Among offenders who were released in 2010:

  • Those who received status points were rearrested at similar rates to those without status points who had the same criminal history score. For example, among offenders whose criminal history score was seven, 69.6 percent of those with status points and 70.4 percent of those without status points were rearrested in the eight years after release.
  • Three-fifths (61.1%) of offenders who received status points had five or more criminal history points for prior sentences (i.e., before adding in two status points). These offenders had a statistically similar rearrest rate to offenders without status points who had the same number of points for prior sentences.
  • The remaining two-fifths (38.9%) of offenders who received status points had one to four criminal history points for prior sentences (i.e., before adding in two status points). These offenders had a statistically higher rearrest rate than offenders without status points who had the same number of points for prior sentences.
  • Status points only minimally improve the criminal history score’s successful prediction of rearrest — by 0.2 percent. With status points included in the calculation for eligible offenders, the score successfully predicts rearrest 65.1 percent of the time, compared to 64.9 percent of the time with status points removed.

June 27, 2022 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Reentry and community supervision | Permalink | Comments (0)

SCOTUS unanimously rejects federal convictions for opioid docs in Ruan, with majority stressing mens rea requirement

Every member of the Supreme Court agreed this morning in Xiulu Ruan v. US, No. 20-1410 (S. Ct. June 27, 2022) (available here), decided that the federal drug distribution convictions of two doctors who prescribed opioids was problematic.  But the Court divided on the rationale, with Justice Breyer writing the opinion for the majority that starts this way:

A provision of the Controlled Substances Act, codified at 21 U.S.C. § 841, makes it a federal crime, “[e]xcept as authorized[,] . . . for any person knowingly or intentionally . . . to manufacture, distribute, or dispense . . . a controlled substance,” such as opioids. 84 Stat. 1260, 21 U.S.C. § 841(a) (emphasis added). Registered doctors may prescribe these substances to their patients. But, as provided by regulation, a prescription is only authorized when a doctor issues it “for a legitimate medical purpose . . . acting in the usual course of his professional practice.” 21 CFR §1306.04(a) (2021).

In each of these two consolidated cases, a doctor was convicted under § 841 for dispensing controlled substances not “as authorized.” The question before us concerns the state of mind that the Government must prove to convict these doctors of violating the statute. We hold that the statute’s “knowingly or intentionally” mens rea applies to authorization. After a defendant produces evidence that he or she was authorized to dispense controlled substances, the Government must prove beyond a reasonable doubt that the defendant knew that he or she was acting in an unauthorized manner, or intended to do so.

Justice Alito authored a lengthy opinion to concur in the judgment which was joined in full by Justice Thomas and partially by Justice Barrett. Here is how it begins:

In criminal law, the distinction between the elements of an offense and an affirmative defense is well-known and important. In these cases, however, the Court recognizes a new hybrid that has some characteristics of an element and some characteristics of an affirmative defense. The consequences of this innovation are hard to foresee, but the result may well be confusion and disruption. That risk is entirely unnecessary.

We granted certiorari in these cases to decide whether a physician may be convicted of dispensing or distributing drugs by prescription under a provision of the Controlled Substances Act of 1970 (CSA), 21 U.S.C. §841(a), if he or she believed in good faith that the prescription was within the course of professional practice. In my view, there is a straightforward answer to this question. The CSA contains an exception for prescriptions issued in the course of professional practice, and this exception is a carry-over from the CSA’s predecessor, the Harrison Narcotics Act of 1914, 38 Stat. 785. In interpreting the Harrison Act, this Court held that a registered physician acts “in the course of his professional practice” when the physician writes prescriptions “in good faith.” Linder v. United States, 268 U.S. 5, 17–18 (1925). I would hold that this rule applies under the CSA and would therefore vacate the judgments below and remand for further proceedings.

June 27, 2022 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Via 5-4 ruling, Supreme Court stresses broad sentencing discretion in crack resentencing case Concepcion

In a 5-4 decision, with a somewhat surprising group of Justices in the majority, the Supreme Court this morning in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here), stressed the broad scope of information that may be consider at sentencing or sentence modification. Here is how Justice Sotomayor's opinion for the Court gets started:

There is a longstanding tradition in American law, dating back to the dawn of the Republic, that a judge at sentencing considers the whole person before him or her “as an individual.” Koon v. United States, 518 U.S. 81, 113 (1996). In line with this history, federal courts today generally “exercise a wide discretion in the sources and types of evidence used” to craft appropriate sentences. Williams v. New York, 337 U.S. 241, 246 (1949). When a defendant appears for sentencing, the sentencing court considers the defendant on that day, not on the date of his offense or the date of his conviction. Pepper v. United States, 562 U.S. 476, 492 (2011).  Similarly, when a defendant’s sentence is set aside on appeal, the district court at resentencing can (and in many cases, must) consider the defendant’s conduct and changes in the Federal Sentencing Guidelines since the original sentencing. Ibid.

Congress enacted the First Step Act of 2018 against that backdrop. The First Step Act authorizes district courts to reduce the prison sentences of defendants convicted of certain offenses involving crack cocaine. The Act allows a district court to impose a reduced sentence “as if ” the revised penalties for crack cocaine enacted in the Fair Sentencing Act of 2010 were in effect at the time the offense was committed. The question in this case is whether a district court adjudicating a motion under the First Step Act may consider other intervening changes of law (such as changes to the Sentencing Guidelines) or changes of fact (such as behavior in prison) in adjudicating a First Step Act motion.

The Court holds that they may. It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained. Nothing in the First Step Act contains such a limitation. Because district courts are always obligated to consider nonfrivolous arguments presented by the parties, the First Step Act requires district courts to consider intervening changes when parties raise them. By its terms, however, the First Step Act does not compel courts to exercise their discretion to reduce any sentence based on those arguments.

The District Court in this case declined to consider petitioner Carlos Concepcion’s arguments that intervening changes of law and fact supported his motion, erroneously believing that it did not have the discretion to do so, and the Court of Appeals affirmed. The Court now reverses.

Justice Kavanaugh authored the chief dissent for the Chief Justice, Justice Alito and Justice Barrett. It concludes this way:

The Court’s disregard of the text of the First Step Act is especially audacious because the Act was a heavily negotiated and vigorously debated piece of legislation. The Act reflects a compromise among competing interests. Not for the first time in a sentencing case, the Court’s decision today unravels the legislative compromise reflected in the statutory text. The Court in effect green-lights district courts, if they wish, to make the 2016 amendment to the career-offender guideline retroactive in First Step Act proceedings—even though neither Congress nor the Sentencing Commission has made that amendment retroactive. Perhaps the Court’s decision represents better sentencing policy. Perhaps not. But under the Constitution’s separation of powers, this Court may not simply rewrite the First Step Act as the Court thinks best.

In sum, I would conclude that the First Step Act authorizes district courts to reduce a sentence based on changes to the crack-cocaine sentencing ranges, but not based on other unrelated legal or factual changes since the original sentencing. The Court holds otherwise. Therefore, I respectfully dissent.

I will need some time to review these opinions closely before being able to discuss the broader meaning and impact. But, yet again, it turns out sentencing jurisprudence at the Supreme Court is more pro-defendant than in many lower courts.

June 27, 2022 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Lots of GVRs based on Taylor limiting "crime of violence" for applying 924(c) sentence enhancement

As night follows day, it regularly follows after a significant new Supreme Court decision limiting the reach of a federal criminal statute that a subsequent Supreme Court order list grants, vacates and remands (GVRs) a number of cases "for further consideration in light of" the new decision.  In this morning's order list, the Supreme Court's 7-2 decision last week in US v. Taylor, No. 20–1459 (S. Ct. June 21, 2022) (available here), provides the basis for twenty GVRs.

Because Taylor limited the reach of what serves as a "crime of violence" under 18 U.S.C. § 924(c)(3)(A), a statute which impacts whether and when an "individual may face a second felony conviction and years or decades" of additional mandatory imprisonment for having a gun involved in the commission of certain offenses (basics here), I suspect there will be future Taylor GVRs and likely lots of other echoes from the decision.  

Especially in the wake of the Supreme Court's high-profile ruling in Bruen changing the jurisprudence of the Second Amendment (basics here, questions here and here), it is interesting to note that two big wins for criminal defendants this SCOTUS Term came in cases limiting the reach of federal criminal statutes imposing severe mandatory punishments for gun-related offenses.  Though Taylor and Wooden (basics here, analysis here) will not get nearly as much attention as Bruen, for certain folks they will prove even more important.

June 27, 2022 in Gun policy and sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, June 26, 2022

After historic week, SCOTUS still has a final few notable criminal justice cases to resolve

Earlier this month, I flagged in this post the six notable cases that I was most eagerly awaiting as a remarkable Supreme Court Term was coming to a close.  Four of those cases were resolved last week, with Taylor and Nance providing small wins for criminal defendants, and then Bruen and Dobbs producing big jurisprudential changes for gun rights and abortion practices.  In some other years, Bruen would be the Term's memorable case.  But the enduringly contentious issue of abortion, and the legal and political uncertainty following the full reversal of Roe and Casey, ensures that Dobbs will be the most consequential and debated case for many years to come.

But the Supreme Court still has final seven cases to resolve, three of which involve criminal justice matters.  The lingering criminal cases, some or all of which could be handed down as early as tomorrow morning, are not the highest profile of the remaining matters.  Cases involving the authority of the EPA to regulate greenhouse gases, detention policies at the southern border and a praying high school football coach are sure to get more attention than any of the criminal cases.  And yet, the three remaining criminal cases could still prove to be a big deal, and I will borrow here from Amy Howe's helpful accounting of them:

  1. Concepcion v. United States (argued Jan. 19): Whether, when a court is deciding whether to resentence a defendant under the First Step Act, which gives federal district courts power to resentence offenders in light of changes in the Fair Sentencing Act of 2010, a district court must or may consider intervening developments, or whether such developments only come into play (if at all) after courts conclude that a sentence reduction is appropriate.
  2. Ruan v. United States (argued Mar. 1): Whether a doctor who has the authority to prescribe controlled substances can be convicted for unlawful distribution of those drugs when he reasonably believed that his prescriptions fell within professional norms.
  3. Oklahoma v. Castro-Huerta (argued April 27): Whether a state has authority to prosecute defendants who are not Native Americans, but who commit crimes against Native Americans on land that Congress historically reserved for Native people. 

June 26, 2022 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

You be the judge: what federal sentence for convicted sex trafficker Ghislaine Maxwell?

A high-profile sentencing is scheduled for NYC federal court this coming week.  This CNN article from last last, reporting on prosecutors' sentencing filing, provides a partial preview:

Federal prosecutors asked a judge in a court filing Wednesday to sentence Ghislaine Maxwell to 30 to 55 years in prison for sex trafficking a minor and other charges related to a sprawling conspiracy to abuse young girls with the wealthy financier Jeffrey Epstein.

"Maxwell was an adult who made her own choices. She made the choice to sexually exploit numerous underage girls. She made the choice to conspire with Epstein for years, working as partners in crime and causing devastating harm to vulnerable victims," prosecutors wrote in the sentencing memo. "She should be held accountable for her disturbing role in an extensive child exploitation scheme."

Last week, Maxwell's lawyers asked a judge to sentence her to between 4.25 and 5.25 years in prison, saying her difficult childhood made her vulnerable to Epstein and that she shouldn't face a harsh sentence because of his actions. "But this Court cannot sentence Ms. Maxwell as if she were a proxy for Epstein simply because Epstein is no longer here," her attorneys wrote in their sentencing recommendation....

Epstein, who pleaded guilty in 2008 to state prostitution charges, was indicted on federal sex trafficking charges in July 2019 but died by suicide in prison a month later. Maxwell, his confidante and former girlfriend, was arrested a year afterward and has been held in jail since. In the sentencing memo, the prosecution wrote that the defense's argument was "absurd and offensive."

"The lenient sentence the defendant seeks would send the message that there is one system of laws for the rich and powerful, and another set for everyone else," prosecutors wrote.... 

Maxwell, 60, was found guilty of five federal charges in December: sex trafficking of a minor, transporting a minor with the intent to engage in criminal sexual activity and three related counts of conspiracy.  However, she will only be sentenced on three counts after the judge presiding over her case agreed that two of the conspiracy counts she faced were repetitive.

The probation department recommended a 20-year sentence, below the sentencing guidelines. 

At her trial late last year, prosecutors argued Maxwell and Epstein conspired to set up a scheme to lure young girls into sexual relationships with Epstein from 1994 to 2004 in New York, Florida, New Mexico and the US Virgin Islands. Four women testified during the trial that Epstein abused them and that Maxwell facilitated the abuse and sometimes participated in it as well.

Her defense, meanwhile, said she was a "scapegoat" for Epstein's actions and attacked the memories and motivations of the women who said they were sexually abused.

The federal prosecutors' sentencing filing, which is available here, contends that "the applicable sentencing range is 360 months to life imprisonment [but] the statutory maximum penalty is 660 months’ imprisonment, [so] the Guidelines range becomes 360 to 660 months’ imprisonment."  But the defense sentencing memorandum, which is available here, requests "that the Court grant Ms. Maxwell a significant variance below the advisory Sentencing Guidelines range of 292-365 months and below the 240-month sentence recommended by the Probation Department."

But, as of this writing on the morning of June 26, it now seem there is a chance the sentencing will not go forward this week.  This Reuters article explains:

Ghislaine Maxwell has been put on suicide watch at a Brooklyn jail, and may seek to delay her Tuesday sentencing for aiding Jeffrey Epstein's sexual abuse of underage girls, her lawyer said on Saturday night.  In a letter to the judge overseeing Maxwell's case, Maxwell's lawyer, Bobbi Sternheim, said her client is "unable to properly prepare, for sentencing," after officials at the Metropolitan Detention Center on Friday declared the suicide watch and abruptly moved Maxwell to solitary confinement.

Sternheim said Maxwell was given a "suicide smock," and her clothing, toothpaste, soap and legal papers were taken away. The lawyer also said Maxwell "is not suicidal," a conclusion she said a psychologist who evaluated the 60-year-old British socialite on Saturday morning also reached.

"If Ms. Maxwell remains on suicide watch, is prohibited from reviewing legal materials prior to sentencing, becomes sleep deprived, and is denied sufficient time to meet with and confer with counsel, we will be formally moving on Monday for an adjournment," Sternheim wrote.

Prior related post:

June 26, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (1)

Saturday, June 25, 2022

A focus on local prosecutors as abortions now are subject to broad criminalization after Roe's reversal

The modern progressive prosecutor movement had already in recent years brought heightened attention to prosecutorial policies and practices.  The Supreme Court's ruling in Dobbs overruling Roe and allowing for the broad criminalization of abortion has, unsurprisingly, brought even more attention to whether, when and how prosecutors might seek to charge persons for abortion-related activities.  Here are a few recent news article discussing some of these issues:

From the Fort Worth Star-Telegram, "Tarrant County DA says she will prosecute any legitimate Texas abortion law violations"

From The Hill, "Elected prosecutors vow not to go after women seeking abortions"

From NBC News, "Prosecutors in states where abortion is now illegal could begin building criminal cases against providers"

From STAT News, "HIPAA won’t protect you if prosecutors want your reproductive health records"

A few prior related posts:

UPDATE: An email from the National Association of Criminal Defense Lawyers, pointing to this NACDL webpage, reminded me that the defense bar is also going to have an important role in mapping out future policy and practice when it comes to criminal enforcement of abortion prohibitions. Here is a snippet from the NACDL webpage noting its plans in this legal space:

As a leader in the fight against overcriminalization and mass incarceration, NACDL is committed to providing the defense bar with the tools they need to take on the complex and varied cases arising from the Supreme Court’s decision to overturn Roe v. Wade.  Resources will include legal news, information on in-person and virtual trainings, and court filings focused on the specific issues defenders will encounter in these cases.  These tools support lawyers in their defense of cases ranging from child endangerment to homicide brought against a wide array of individuals, including women charged for their pregnancy outcomes or actions while pregnant, abortion seekers, providers, and those caught up in the wide net of related conspiracy and accomplice statutes.

June 25, 2022 in Offense Characteristics, Who Sentences | Permalink | Comments (1)

Friday, June 24, 2022

Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?

In this post yesterday, I wondered "Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen?"  That question was prompted by the fact that the majority opinion in the Supreme Court's big Second Amendment case, Bruen (basics here), seemed to reject lots of recent lower court rulings and jurisprudence regarding the application of the Second Amendment.  Lower courts have, prior to Bruen, generally rejected Second Amendment attacks on federal law's broad criminalization of any felons possessing any guns.  But Bruen makes clear that to "justify its [gun] regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation."

Because the broad federal felon-in-possession statute, 18 U.S.C. § 922(g)(1), is applied many thousands of times each year, I am expecting a robust new round of litigation on that issue as to whether and when felon dispossession is "consistent with this Nation’s historical tradition of firearm regulation."  But here I want to flag another notably broad provision of federal firearms law, though one probably unlikely to get nearly the same attention.  Specifically, 18 U.S.C. § 922(g)(3), categorically criminalizes any gun possession by anyone who is an "unlawful user of or addicted to any controlled substance."  In an era in which marijuana use is legal for medical or recreational use in the vast majority of states but still is federal prohibited, this broad federal criminal "unlawful user" gun dispossession statute technically applies to dispossess tens of millions of Americans.  As a matter of policy and practice, I sense very few people get actually federally prosecuted and sentenced under just 922(g)(3) even for very serious and dangerous drug use, but it certainly happens sometimes.

Notably, more than a few states also have laws criminalizing gun possession by those his drug use history, and some even extend to users of legal drugs (including alcohol).  As one notable example, my state of Ohio, via Ohio Revised Code § 2923.13, prohibits knowingly having any firearm if one "is drug dependent, in danger of drug dependence, or a chronic alcoholic."  Arguably, anyone prescribed and using Oxycotin is "in danger of drug dependence," though again I do not think these kinds of laws in Ohio (or in other states) tend to be broadly enforced.  Still, these laws probably do get used as a basis refuse to issues some firearm licenses (see generally "Blowing Smoke at the Second Amendment"). 

Whatever the policy or practical virtues or vices of broad drug user gun dispossession laws, their constitutional status would seem subject to new questions thanks to Bruen.  The federal firearm prohibition for anyone who is an "unlawful user of or addicted to any controlled substance" has been upheld through various balancing tests in lower courts stressing the important government interest in restricting gun access to potentially dangerous individuals.  But, now, thanks to Bruen, such a regulation's "important interest" is not what is key for Second Amendment interpretation, "rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation."

I am not legal historian, but I know enough about drug law history to know that there were very few criminal prohibitions on drug use at the time of the ratification of the Second Amendment.  Notably, there were some localities and even a state (Maine) embracing alcohol prohibition before and into the Civil War era, but I have no sense of how various early temperance laws may have interacted with gun regulations at that time.  I do surmise, from reading then-Judge Amy Coney Barrett's dissent in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019), that history suggests "founding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety."  Perhaps broad drug user gun dispossession statutes could be justified on that ground, but I have a very hard time viewing modern users of medical marijuana consistent with state law as analogous to those groups considered categorically dangerous in the founding era.

As suggested before, I expect to see a lot more litigation over broad felon-in-possession criminal laws than over broad drug user gun dispossession statutes.  Nevertheless, I think this is another interesting area of Second Amendment law that seemed reasonably settled before Bruen and now may be up for new (historical) debate.

Prior recent related posts:

June 24, 2022 in Gun policy and sentencing, Offense Characteristics, Second Amendment issues, Sentences Reconsidered | Permalink | Comments (6)

SCOTUS overrules Roe with Dobbs ruling, raising new criminal justice and sentencing issues

The Supreme Court this morning released its much anticipated opinion in Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (S. Ct. June 23, 2022) (available here).   The opinions are 200+ pages long, but these lines from the start of the Court's opinion authored by Justice Alito provides the basics: "We hold that Roe and Casey must be overruled ... [and so] return the issue of abortion to the people’s elected representatives."

Both before and after the Dobbs majority opinion was leaked last month, I spotlighted in a few posts a few issues that would seem to arise from existing state laws poised to criminalize and punish abortions in various ways:

There are, of course, lots of other jurisprudential and policy and political questions outside the criminal justice area that flow from Dobbs and its aftermath.  But I think it is quite important and will be quite legally consequential that most laws seeking to restrict or prohibit abortions will be criminal laws raising all sorts of (obvious and not-so-obvious) enforcement and sentencing issues.

June 24, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (77)

Thursday, June 23, 2022

"Nothing but Time: Elderly Americans Serving Life Without Parole"

The title of this post is the title of this new report from The Sentencing Project. Here is most of the executive summary and recommendations from the start of the report:

Prisons are a particularly hazardous place to grow old.  The carceral system is largely unprepared to handle the medical, social, physical, and mental health needs for older people in prison.  Nearly half of prisons lack an established plan for the care of the elderly incarcerated....

Warnings by corrections budget analysts of the crushing costs of incarcerating people who are older have gone almost entirely unheeded. Indeed, sociologist and legal scholar Christopher Seeds accurately described a transformation of life without parole “from a rare sanction and marginal practice of last resort into a routine punishment in the United States” over the last four decades.  And in the contemporary moment of rising concerns around crime, there are reasons to be concerned that ineffective, racially disproportionate, and costly tough-on-crime measures such as increasing sentence lengths will proliferate, leading to even higher numbers of incarcerated people who will grow old in prison.  In this, as in many other aspects of its carceral system, the United States is an outlier; in many Western democracies those in their final decades of life are viewed as a protected class from the harsh prison climate.

Older incarcerated people describe sentences of life without the possibility of parole (LWOP) — with the expectation that they will die in prison — as particularly cruel, involving a devastating loss of human dignity.  Considering the consistent observation across dozens of studies that people “age out” of criminal conduct, the dedication of resources toward a group that is of extremely low risk is a foolish investment.  Yet people serving LWOP are a growing share of the overall life-sentenced population and the number of people in prison serving LWOP is at an all-time high.  While LWOP sentences have been a sentencing component of the American punishment spectrum for much of its existence, recent mandatory and preferential imposition of life sentences with no chance for parole are a more prominent feature than ever.  In 2020, The Sentencing Project produced a 50-state survey of departments of corrections that revealed that more than 55,000 Americans are incarcerated in state and federal prisons with no chance of parole, reflecting a 66% rise in people serving LWOP since 2003.

Because compassionate release, whether based on chronological age (geriatric parole) or diagnosis of a terminal illness (medical parole), typically excludes people serving life sentences by statute, the only option for an early release for people serving LWOP is executive clemency.  While clemency was common for older people serving life sentences sixty years ago, it was nearly terminated by the 1970s, and is still rarely used today.

This report explores the features of the LWOP population in more detail, focusing on the aging demographic in particular.  The data presented in this report reflect the patterns of 40,000 people serving LWOP sentences across 20 states.  These 20 states reflect three quarters of the LWOP population nationwide. The main findings in this report are the following:

• Almost half (47%) of the people serving LWOP are 50 years old or more and one in four is at least 60 years old.

• In ten years, even if no additional LWOP sentences were added in these states, 30,000 people currently serving LWOP will be 50 or older.

• 60% of the elderly imprisoned serving LWOP have already served at least 20 years....

• Half of aging people serving LWOP are Black and nearly 60% are people of color....

• The majority of people serving LWOP have been convicted of murder, but a growing share of the overall LWOP population has been convicted of less serious crimes, reflecting an over-expansion of LWOP.

We make a series of recommendations for reform based on the research presented in this report:

• Reinstate parole or resentencing opportunities for those currently ineligible.

• Give added weight to advanced age at review hearings. Advanced age considerations should begin at age 50 in light of the accelerating aging process that accompanies imprisonment.

• Allow immediate sentence review with presumption of release for people who are 50 and older and have served 10 years of their LWOP sentence.

• Revise medical parole release statutes to include all incarcerated people regardless of crime of conviction and age.

• Upon release, transition elderly persons, including those who have been convicted of a violent crime and those who are serving LWOP and other life sentences, to well-supported systems of community care if they are too frail to live independently.

• Require states to disclose the cost of incarcerating elderly people, including the cost of all medical care, as well as projections for future costs. Failing in such fiscal transparency keeps taxpayers in the dark about the true cost of mass incarceration.

• Expand clemency release opportunities to reflect their higher usage in earlier eras.

June 23, 2022 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (8)

Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen?

I am still working my way through the Supreme Court's various opinions in today's big Second Amendment case, Bruen (basics here). And, because I am not a Second Amendment expert, my first-cut reactions to Bruen may not be worth much.  But, since the majority opinion in Bruen seems to reject lots of recent lower court rulings regarding the application of the Second Amendment, I cannot help but start wondering now if all broad felon-in-possession criminal statutes are constitutionally suspect.

Lower courts have largely upheld felon-in-possession criminal prohibitions even since Heller decided the Second Amendment provided for an individual right. But I read Part II of the Court's opinion in Bruen as rejecting much lower-court jurisprudence since Heller and creating a new textual and historical approach for the consideration of Second Amendment claims:

In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.  To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.  Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”...

Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms....

We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”  

American citizens with felony records are surely part of "the people" covered by the plain text of the Second Amendment, and so their conduct in possessing a firearms would seem presumptively protected.  Turning then to "the Nation’s historical tradition," I surmise from various academic articles (see here and here; see also here) that only dangerous and violent people, not all felons, were historically disallowed to have firearms.  As one of these articles puts it: "there is no historical justification for completely and forever depriving peaceable citizens — even nonviolent felons — of the right to keep and bear arms." 

 But one need not take an academic's word for this notion that there is not historical tradition for dispossessing all felons. Then-Judge, now Justice Amy Coney Barrett made this point quite effectively when dissenting in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019). Here is the start of her lengthy dissent in a case upholding application of the federal felon-in-possession ban to a nonviolent felon:

History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.  But that power extends only to people who are dangerous.  Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons.  Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun.  In 1791 — and for well more than a century afterward — legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.

Notably, the Bruen opinion for the Court makes repeated reference to the petitioners as "law-abiding" individuals. But I am not sure that dicta alone could or should undermine what Second Amendment's plain text and historical tradition now seem to suggest, namely that governments are on very shaky constitutional ground if and whenever they seek to criminalize gun possession by nonviolent (or "non-dangerous") persons with criminal records.

June 23, 2022 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (30)

By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements

The Supreme Court this morning handed down its much-anticipated Second Amendment ruling in New York State Rifle & Pistol Assn., Inc. v. Bruen, No. 20-843 (S. Ct. June 23, 2022) (available here). Lots of Justices had lots to say in the first significant Second Amendment ruling in more than a decade:

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. ALITO, J., filed a concurring opinion. KAVANAUGH, J., filed a concurring opinion, in which ROBERTS, C. J., joined. BARRETT, J., filed a concurring opinion. BREYER, J., filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined.

Here is how Justice Thomas's opinion for the Court gets started:

In District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. Chicago, 561 U.S. 742 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.  In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense.  We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.

The parties nevertheless dispute whether New York’s licensing regime respects the constitutional right to carry handguns publicly for self-defense.  In 43 States, the government issues licenses to carry based on objective criteria. But in six States, including New York, the government further conditions issuance of a license to carry on a citizen’s showing of some additional special need.  Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution.

Because Bruen is lengthy, I am going to need some time to see if there could be considerable criminal justice echoes from what the Court has to say here.  But, as highlighted in this prior post, a group of defense attorneys filed an amicus brief in Bruen highlighting that their clients were greatly impacted by NY gun laws and that, in 2020, "Black people made up 18% of New York’s population,[but] accounted for 78% of the state’s felony gun possession cases."   I wonder how many gun defendants, not only in New York but elsewhere, might now have new arguments to make about their prosecution and sentencing.

June 23, 2022 in Gun policy and sentencing, Offense Characteristics, Second Amendment issues, Who Sentences | Permalink | Comments (4)