Sentencing Law and Policy

US Sentencing Commission notices public meeting for possible additional proposed guideline amendments (and releases data on past ones)

When the US Sentencing Commission's promulgated a set of proposed guideline amendments last month (details here), it also indicated in a press release that more proposed amendments might be in the works.  Specifically, here were the words then of USSC Chair Judge Carlton Reeves:  “Over the next month, the Commission will consider whether to publish additional proposals that reflect the public comment, stakeholder input, and feedback from judges that we have received over the last year -- including at the roundtables we have held in recent months on drug sentencing and supervised release.”

Sure enough, today the USSC sent out a formal "Notice of Public Meeting," which provides in pertent parts as follows:

The Commission scheduled a public meeting for January 24, 2025 at 1:00 pm (EST). The meeting will be streamed live. The agenda is as follows:

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

The USSC also noted in its email about the public meeting that it has recently released two separate data briefings relating to: (1) the career offender guideline at §4B1.1 and (2) the treatment of machinegun conversion devices under §2K2.1.  As the USSC explained via email, this "information presented by Commission staff is intended to facilitate public discussion of the amendments proposed by the Commission in December."

Justices in their usual (but still somewhat unpredicatable) roles as they consider 924(c) resentencing in Hewitt

The Supreme Court heard oral argument in Hewitt (et al.) v. U.S. to consider this formal question: "Whether the First Step Act’s sentencing reduction provisions apply to a defendant originally sentenced before the FSA’s enactment when that original sentence is judicially vacated and the defendant is resentenced to a new term of imprisonment after the FSA’s enactment."  In this substack essay last week, titled "Liberty’s absence in jurisprudence and practice regarding extreme prison sentences," I lamented that the briefing in this Hewitt case was "devoted to parsing the words 'sentence' and 'imposed' and debating statutory syntax rather than engag[ing] with liberty as a fundamental value or with limits on the state’s power to punish extremely."  Perhaps unsurpringly, as folks can hear/read here from the Supreme Court website, this morning's oral argument reflected the same deficiencies.

This Bloomberg Law piece reporting on the argument highlights that the Court did not readily signal where it might be headed.  Here are excerpts:

US Supreme Court justices struggled with how broadly to read a federal law meant to reduce harsh criminal sentences, with one saying the case was “really close.”

The question at the heart of arguments on Monday was whether the First Step Act’s reduced mandatory minimums apply to defendants originally sentenced before the law was enacted but later had the punishment vacated, or only to those who’ve never been sentenced. The answer turns on the meaning of “imposed,” as the law applies retroactively to those who committed a crime before it came into force in 2018 but who haven’t yet been sentenced.

Justice Sonia Sotomayor said the term “imposed” is ambiguous because it can mean either a “historical act,” meaning whether a sentence was ever imposed, or a “continuing application,” meaning that a valid sentence is in place. Because of that, the court should consider the context in which the law was passed, Sotomayor said. She said it was clearly meant to help defendants who faced what Congress saw as unfair sentencing.

But Justice Brett Kavanaugh said context doesn’t resolve the case. Congress wanted to apply the reduced sentences retroactively, but there was a limit because lawmakers didn’t open it up to everyone, Kavanaugh said. “I think this is a really close case,” he said.

The case is likely to affect a small number of defendants but it will be critical for those to whom it applies.

Based on a (too) quick read of the transcript, I sense the defendants can reasonably expect to get four votes (Justices Sotomayor, Kagan, Gorsuch and Jackson), but it is not clear that any other Justice will provide the key fifth vote.  If the rule of lenity had any real force in statutory interpretation, this ought to be a fairly easy case.  But. notably, it was barely mentioned in the oral argument.  It was mentioned that perhaps only a few dozen defendants will be impacted by this case; there is a lot of prison time at stake for a few, but this ruling seems unlikley to impact any other no matter who prevails.

"Does the United States Have High Recidivism Rates? New Data Raise Questions About Prevailing Beliefs"

The title of this post is the title of this essay authored by Barry Latzer available via SSRN. Here is its abstract:

A recent report on reincarceration by the Council of State Governments Justice Center (CSG) seems to challenge prevailing assumptions about recidivism by serious offenders. The study finds that discharged prisoners in the United States are returned to prison within three years of release at rates comparable to those of other nations.  This suggests, contrary to common assumptions, that recidivism rates in the United States are not especially high.  However, data from the federal Bureau of Justice Statistics (BJS), familiar to criminologists, paint a very different picture.  The BJS found that 66% of released state prisoners were rearrested within three years and 82% were arrested at least once during a ten year follow-up.  These data point to exceptionally high recidivism rates.  These analyses can be reconciled by examining prison-admissions-to-arrest ratios.  From 1995 to 2019 the ratio declined by 28%.  The decline in imprisonments explains the apparently modest return-to-prison rates found by the Council of State Governments.  Therefore it cannot be concluded that the United States is successfully rehabilitating prisoners.

"Booker at 20": reflections on the impact and import of plea agreements

As set out in this prior post, I have started a series of posts here on the topic of "Booker at 20," partially in conjunction with a forthcoming issue of the Federal Sentencing Reporter on the topic.  A few FSR authors for that issue have allowed me to post here some modified excerpts from their forthcoming articles, and today's entry (on Booker's actual 20th anniversary) comes from Sam Merchant: 

For understandable reasons, Booker was expected to expand judicial discretion at sentencing.  But around 98% of federal criminal cases are resolved through guilty pleas, and around 71% of those involve written plea agreements. These agreements often dictate sentencing outcomes, raising questions about the true extent of judicial discretion.

Despite their ubiquity, most plea agreements remain opaque to outside observers.  The U.S. Sentencing Commission collects data on the reasons that judges deviate from guideline ranges but it does not systematically collect that information for sentences within guideline ranges (where plea agreements frequently play a decisive role).  As long as the parties can confabulate a sentence that fits within a guideline range, the true reasons for the sentence may be forever obscured. 

This is a potential problem, particularly in cases I’ve studied involving “fictional pleas” or “hidden departures,” where the plea and guideline range don’t match the real offense conduct.  I and others have identified this in around a third of federal cases (conservatively).  While I’m not necessarily against the practice, it does undermine the stated goals of uniformity and transparency.  (Of course, these might not actually be desirable goals, but they are included in Congress’s stated goals.)  And when parties withhold information from judges, it directly challenges the traditional story about the extent of post-Booker judicial discretion.  The system we’ve created gives sentences the appearance of being guided by Article I and Article III, when in reality, the influence of Article II is underappreciated.  Post-Booker, there is a sense that “sentencing is for judges, so if a judge imposed the sentence, I’m sure everything is fine.”

There is probably little interest in changing the framework of fictions we’ve created.  Members of Congress can continue appearing “tough on crime,” knowing that their laws will be (inconsistently) circumvented.  Prosecutors can threaten astronomical but ultimately fictional criminal exposure to induce pleas.  Defendants plead guilty for less than that fictional exposure, often for conduct they didn’t actually commit.  Busy judges accept those pleas.  The significant investment required to reform the system and hold more trials is almost certainly politically untenable.  So the system prioritizes efficiency over truth and fairness.  The system churns on — efficient, opaque, and quietly complicit in its own contradictions, perpetuating a framework of fictions that seems to primarily serve the designers and operators.

Brown paper bags come to mind. In the 1950s and 1960s, most American city councils passed laws that prohibited the consumption of alcohol in public places.  Police lacked the capacity to prosecute every offender, but ignoring obvious violations would foster disrespect for the law.  In an act of “ghetto diplomacy,” consumers began putting paper bags over their beverages.  Police then had the discretion to look the other way and focus resources on more serious crimes. Passersby had plausible deniability — maybe there isn’t really an alcoholic beverage inside that bag? City leaders could take the win for cleaning up the streets, at least well enough for government work.

Just as the participants agreed and society accepted the bag as a willful delusion, the criminal system gives us plausible deniability about how “justice” is administered.  The participants do what they can to keep cases moving, and enough members of the public don’t want to know or simply don’t care what’s inside. Perhaps it’s not justice the public seeks, but the illusion of it, wrapped in systems that give us permission to look the other way.

Prior post in this series:

• "Booker at 20": introducing a coming series of posts (and more)
• "Booker at 20": has much really changed in federal sentencing? 

"New Acquitted Conduct Guideline: An Analysis"

The title of this post is the title of this recent New York Law Journal essay by Paul Shechtman. The piece merits a full read, as it highlights recent developments on acquitted conduct sentencing and various aspects of the new guideline.  The closing paragraphs highlight some themes:

May a judge consider acquitted conduct in deciding where within the guideline range a defendant should be sentenced? May she vary upward from the guideline range based on acquitted conduct?  In neither instance is the judge including acquitted conduct in calculating relevant conduct, but an affirmative answer to these questions would end run the amendment.

Notably, along with the amendment to §1B1.3, the Commission amended §6A1.3 to reiterate that “nothing in the Guidelines Manual abrogates a court’s authority under 18 U.S.C. §3661.”  That section states that “[n]o limitation may be placed on information…a court…may receive and consider for the purpose of imposing an appropriate sentence.”

If ever a Sentencing Guideline amendment is well intentioned but perplexing, the acquitted conduct amendment may be it.  Its saving grace may be that in fiscal year 2022, of the 62,529 sentenced individuals, 1,613 were sentenced after trial (2.5%) and, of those, only 286 (.04% of all sentenced defendants) were acquitted of one or more offense or found guilty of only a lesser-included offense.  Thus, the potential issues are nettlesome, but won’t arise often.

"Booker at 20": has much really changed in federal sentencing?

As noted in this prior post, I have started a series of posts here on the topic of "Booker at 20," partially in conjunction with a forthcoming issue of the Federal Sentencing Reporter on the topic.  Helpfully, a few FSR authors for that issue have allowed me to post here some modified excerpts from their forthcoming articles, starting with Jonathan Wroblewski.  Here are some excerpts from his article:

Jury Trials:  The foundation of the decision was that juries were being wrongfully cut out of the process.  The data shows that juries are playing a lesser role now than they were pre-Booker.  In Fiscal Year 2003, the last full fiscal year before the Supreme Court's decision in Blakely v. Washington and the year arguably best for comparison, 95.7% of sentenced federal defendants resolved their case through a guilty plea (there were 2,996 trials reported that year by the Commission).  In 2023, 97.2% of sentenced federal defendants resolved their cases through a guilty plea (there were 1,824 trials reported that year, a 39% reduction from 2003).   So fewer trials post-Booker.  

Sentence length:  At least one measure of severity suggests that it has increased post-Booker.  In FY 2003, the Commission reported that the average federal sentence for all cases was 47.9 months imprisonment.  In FY 2023, the Commission reported that it was 52 months imprisonment.   Since Booker, there have certainly been changes in the kinds of cases prosecuted in the federal system, changes that impact the average sentence imposed.  In Fiscal Year 2003, the Commission reported that 69,680 were sentenced in federal courts for felonies and Class A misdemeanors.   Of those, 38.1% were sentenced for drug offenses, 21.6% for immigration offenses, and 17% for fraud and theft offenses.   In Fiscal Year 2023, 64,124 were sentenced in federal courts for felonies and Class A misdemeanors.   Of those, 29.9% were sentenced for drug offenses, 30.0% for immigration offenses, and 8.1% for fraud and theft offenses. Comparing average sentences by certain crime types, in FY 2003, the average sentence for drug trafficking offenders was 76.9 months imprisonment.  In FY 2023, it was 82 months.  In FY 2003, the average sentence for fraud offenders was 14.4 months.   In 2023, it was 22 months. 

Disparity:  In 2010, the Department of Justice's annual report to the Commission noted that post-Booker, “federal sentencing practice is fragmenting into at least two distinct and very different sentencing regimes.  On the one hand, there is the federal sentencing regime that remains closely tied to the sentencing guidelines. . . .  On the other hand, there is a second regime that has largely lost its moorings to the sentencing guidelines.”   The available data suggests this is even more so today.  The Commission itself has studied inter- and intra-district sentencing disparities, and its findings are unambiguous.  On inter-district disparities, the Commission said that “[v]ariations in sentencing practices across districts increased in the wake of the Supreme Court's 2005 decision in Booker.  These inter-district sentencing differences have persisted in the 13 years after Booker and six years after the Commission's 2012 analysis.”   

On intra-district disparities, the Commission said, its “current analysis measured judges’ average percent differences from the guideline minimums in their cases in relation to their city’s average during three periods between 2005 and 2017.  It demonstrated a clear increase in the extent of differences in sentencing practices in a majority of the cities studied following the Supreme Court’s 2005 decision in Booker and continuing after the Court's 2007 decisions in Gall and Kimbrough.” 

A glance at the percentage of cases sentenced within the guidelines by district further shows the increased post-Booker disparities.  For example, in FY 2023, only 42.4% of cases were sentenced within the guideline range,  while in FY 2003, 69.4% were sentenced within the range.   This is not surprising, given the post-Booker requirement that offender characteristics be considered in every case and the lack of guideline reform implementing it.  But the change in non-guideline sentences has not been consistent across districts or across judges, and the numbers suggest growing disparities.  

For example, the highest rate of within-guideline sentences in FY 2003 was in the First Circuit, where 77.3% of cases were sentenced within the range.  The lowest rate that year was in the Ninth Circuit, where 59.6% of cases were sentenced within the range.   This resulted in a difference between the highest and the lowest rates of 17.7 percentage points.  In FY 2023, by contrast, the highest rate of within-guideline sentences was in the Fifth Circuit, where 63.9% of cases were sentenced within the range, while the lowest rate that year was in the Ninth Circuit, where 22.5% of cases were sentenced within the range.  This was a difference of 41.4 percentage points.  Examination of other circuit and district data similarly show expanding disparities.

The thesis of the article is that, contrary to what some argued when Booker was decided, Booker was not “the fix.

Prior post in this series:

• "Booker at 20": introducing a coming series of posts (and more)

The process is the punishment: Donald Trump receives sentence of "unconditional discharge" in New York state prosecution

I have just finished listening to today's hearing as part of the state court sentencing in Trump v. New York, at the end of which he received the expected sentence of "unconditional discharge."  The event was full of interesting elements and ironies (eg, Trump was given the sentence recommended by prosecution, and now can move forward with appeals).   If time and energy permits in the coming weeks, I may turn to the Sentencing Matters Substack for some longer commentary/reflection on this historic event. 

For now, I am just going to note that sentence imposed got me thinking about the title of a famous 1979 criminal justice book by Malcolm Feeley, "The Process is the Punishment: Handling Cases in a Lower Criminal Court."  One big theme of the book, as put in this linked summary, is that "the real costs to those accused of misdemeanors and lesser felonies are not the fines and prison sentences meted out by the court, but the costs incurred before the case even comes before the judge."  That theme came to mind when Trump began his statement to the court today by stating "This has been a very terrible experience."  I suspect that statement resonates with so many criminal defendants and their friends and family, and maybe even more than a few judges and prosecutors.   

Voting 5-4, Supreme Court denies Donald Trump's motion to stay his New York state sentencing

Via this order, the Supreme Court this afternoon turned back Prez-Elect Donald Trump's motion to stay his state court sentencing in Trump v. New York.  The Court was divided 5-4, and her is the full order:

The application for stay presented to Justice Sotomayor and by her referred to the Court is denied for, inter alia, the following reasons.  First, the alleged evidentiary violations at President-Elect Trump’s state-court trial can be addressed in the ordinary course on appeal.  Second, the burden that sentencing will impose on the President-Elect’s responsibilities is relatively insubstantial in light of the trial court’s stated intent to impose a sentence of “unconditional discharge” after a brief virtual hearing.

Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application.

"Booker at 20": introducing a coming series of posts (and more)

Just over nine months ago via this post, I set out a call for papers as part of plans to produce a new Federal Sentencing Reporter issue on "Booker at 20."  That post noted it was way back in January 2005 when the Supreme Court through its opinions in United States v. Booker ushered in a new era for federal sentencing.  Through dueling 5-4 opinions concerning the application of the Sixth Amendment, Booker made the guidelines “effectively advisory,” rather than “mandatory.”  The Court’s opinion invited Congress to rework federal sentencing in keeping with this ruling, but the Booker advisory guideline system has proved remarkably durable: while "mandatory" guidelines were operational for 16 years, we are now just days away from the 20th anniversary of Booker and the advisory guidelines it created.

Booker was handed down the morning of January 12, 2005, so its official 20th birthday will not be until this Sunday.  But an opinion like Booker merits more than just a single day's attention.   So I am here starting a series of posts on the topic of "Booker at 20."  The full Federal Sentencing Reporter issue on this topic is to be published in the coming weeks, and I will be blogging about its contents when it is released.  A few FSR authors for that issue have allowed me to post here some modified excerpts from their forthcoming articles.  So look for those in the coming days. 

In addition, I am eager in this space to highlight notable post-Booker data, rulings and scholarship and anything else that should be seen as standing the test of (sentencing) time.   Because my curation of post-Booker developments and "greatest hits" will surely be warped by my particular parochial interests (as well as fading memories), I welcome and urge folks to flag items from the era of Booker sentencing that they think ought not be forgotten.

"Unlocking State Punishment Clauses"

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

The United States Supreme Court has applied the Eighth Amendment in two ways with respect to criminal sentencing. It uses the “evolving standards of decency” doctrine for capital and juvenile life without parole cases.  And it uses the “gross disproportionality” test for all non-capital cases.  Almost every state has its own punishment clause, an analogue to the Eighth Amendment.  The language in most of these punishment clauses is similar to the Eighth Amendment.  The result is that many states have “lock-stepped” their interpretation of the state constitution with the Supreme Court’s interpretation of the Eighth Amendment.

As scholars and jurists have long noted, lock-stepping state constitutional provisions with federal constitutional provisions constitutes a flawed and problematic interpretive approach.  Lock-stepping substitutes the Supreme Court’s interpretation of the federal constitution for the state court’s reading of its own constitution.  It disregards the will of state citizens in passing their own constitution, contravenes states’ rights, and ignores important differences in text, context, and history of state constitutional provisions.

Some states have taken note and elected to interpret their state constitutions independently of the federal constitution.  Even so, where state supreme courts say that their punishment have separate meanings from the Eighth Amendment, their analysis largely mirrors aspects of one or both of the Court’s two doctrines.  So even states that explicitly do not lock-step with the Eighth Amendment nonetheless engage in a sort of analytical lock-stepping by relying largely on Eighth Amendment doctrines.  The courts engage in such approaches despite a long and well-developed literature criticizing Eighth Amendment doctrines from many different directions.

The goal of this symposium article is to unlock these punishment clauses from Eighth Amendment doctrine.  State punishment clauses have distinct meanings, meanings which may depart far from Eighth Amendment doctrine.  And even if a state court chooses to stay within the confines of the principles of the Eighth Amendment doctrine, the application of these principles can arguably be quite different in the context of a state as opposed to an entire nation.

As such, this Article creates a taxonomy of possible interpretations of state punishment clauses.  Specifically, it explores what the language of “cruel,” “and,” “unusual,” and “punishment” might mean.  This analysis gives rise to a number of doctrinal interpretations state courts might choose to adopt, particularly in light of the textual, contextual, and historical anomalies of their particular state.

Part I of the Article briefly describes the Court’s application of the Eighth Amendment.  Part II provides a brief survey of state punishment clauses.  In Part III, the Article explains why lock-stepping is problematic.  And in Part IV, the article “unlocks” state punishment clauses by providing a taxonomy of possible approaches state courts can adopt in reading and applying their state constitutions.

What kind of Second Amendment case will be next for SCOTUS after Bruen and Rahimi?

Anyone and everyone following Second Amendment litigation since the Supreme Court's landmark Bruen ruling knows that it is not a question of whether, but just a matter of when, the Justices will take up challenges to various federal criminal gun prohibitions to continue adumbrating for lower courts just how they think originalistism is supported to work here.  The Rahimi ruling, perhaps unsurprisingly, only deepened uncertainties (and lower court splits) on various issues, and a number of recent pieces highlighting just some of the Second Amendment jurisprudential messiness has me feeling somewhat more sure another Second Amendment cert grant will be coming soon.  But these articles and other matters also have me feeling somewhat less sure about what particulars issues and cases the Court will decide to take up:  

From Bloomberg Law, "Gun Litigation Will Keep Federal Appeals Courts Busy in 2025"

From the New York Times, "Courts in ‘State of Disarray’ on Law Disarming Felons"

From Reason, "5th Circuit Reaffirms That Prosecuting a Marijuana User for Illegal Gun Possession Was Unconstitutional"

From Stateline, "Judges topple gun restrictions as courts chart an uncertain path forward"

From The Volokh Conspiracy, "Ohio Court Strikes Down Categorical Prohibition on Gun Possession by People Under Indictment"

As some of the above articles highlight, there is a wide array of churning lower-court litigation assailing gun restrictions well beyond federal criminal prohbitions in 18 USC § 922(g), and so it is certainly possible that the Justices might take up disputes over restrictions on types of guns or other regulatory matters before addressing federal possession prohibitions again.  In addition, because the incoming Trump administration could be more supportive of a more expansive view of the Second Amendment, the Supreme Court's approach to 922(g) disputes migth get influence by some new advocacy coming soon from the Justice Department.

Interesting times.

The Sentencing Project releases "A Matter of Life: The Scope and Impact of Life and Long Term Imprisonment in the United States"

The Sentencing Project has long provided the most extensive coverage and data on life sentences in the US, and its latest major report on this front was released today under the title "A Matter of Life: The Scope and Impact of Life and Long Term Imprisonment in the United States." This 30+ page report is extensive and detailed, and here are parts of its "overview":

In the United States, the federal government and every state enforces sentencing laws that incarcerate people for lengths that will exceed, or likely exceed, the span of a person’s natural life. In 2024, almost 200,000 people, or one in six people in prison, were serving life sentences.  The criminal legal system’s dependence on life sentences disregards research showing that extreme sentences are not an effective public safety solution.

This report represents The Sentencing Project’s sixth national census of people serving life sentences, which includes life with the possibility of parole; life without the possibility of parole; and virtual life sentences (sentences reaching 50 years or longer). The report finds more people were serving life without parole (LWOP) in 2024 than ever before: 56,245 people were serving this “death by incarceration” sentence, a 68% increase since 2003.  While the total number of people serving life sentences decreased 4% from 2020 to 2024, this decline trails the 13% downsizing of the total prison population. Moreover, nearly half the states had more people serving a life sentence in 2024 than in 2020.

The large number of people serving life sentences raises critical questions about moral, financial, and justicerelated consequences that must be addressed by the nation as well as the states.  We believe the findings and recommendations documented in this report will contribute to better criminal legal policy decisions and a more humane and effective criminal legal system.

KEY NATIONAL FINDINGS

• One in six people in U.S. prisons is serving a life sentence (16% of the prison population, or 194,803 people) — a proportion that has reached an all-time high even as crime rates are near record lows.
• The United States makes up roughly 4% of the world population but holds an estimated 40% of the world’s life-sentenced population, including 83% of persons serving LWOP.
• More people are serving life without parole in 2024 than ever: 56,245 people, a 68% increase since 2003.
• Despite a 13% decline in the total reported prison population from 2020 to 2024, the total number of people serving life sentences decreased by only 4%.
• Nearly half of people serving life sentences are Black, and racial disparities are the greatest with respect to people sentenced to life without parole.
• A total of 97,160 people are serving sentences of life with parole.
• Life sentences reaching 50 years or more, referred to as “virtual life sentences,” account for 41,398 people in prison.
• Persons aged 55 and older account for nearly twofifths of people serving life.
• One in every 11 women in prison is serving a life sentence.
• Almost 70,000 individuals serving life were under 25 — youth and “emerging adults” — at the time of their offense. Among these, nearly one-third have no opportunity for parole.
• Racial disparities in life imprisonment are higher among those who were under 25 at the time of their offense compared to those who were 25 and older.

"Is civil commitment rehabilitating sex offenders — or punishing them?"

The question in the title of this post is the subtitle of this new Harper's Magazine article titled "The Forever Cure." Here is an excerpt:

As a wave of civil-commitment laws passed in the Nineties and Aughts, many critics questioned how effective they would be at curtailing sexual abuse. More recently, a growing body of research has borne out their concerns: as a 2013 Brooklyn Law Review article put it, “SVP laws have had no discernible deterrent or incapacitation effects.” Some opponents have argued that civil commitment diverts resources from more effective programs such as structured therapy and education and risk-management programs. In 2024, for instance, the SPTP’s budget was $33.7 million, which works out to nearly $130,000 per resident. Rather than spending billions on a “regime that has continued to fail to adequately protect children,” a 2023 Johns Hopkins University–led study concluded, states should invest in programs that can better “prevent child sexual abuse in the first place.”

Even some who oversee long-established civil-commitment programs have questioned their efficacy. Robin Wilson, the clinical director of Florida’s civil-commitment program from 2007 to 2011, believes that treatment should begin at the outset of a prison sentence, not after it has ended, and that most programs start treatment too late to be psychologically helpful. “You end up having people who potentially end up going to treatment long after the treatment would have been most effective, and ultimately for much longer and more intensively than their risk profile suggests,” he told me. “There are better, more efficient, more scientifically defensible, more ethical ways to do this.” In 2014, the research director of Minnesota’s Department of Corrections, Grant Duwe, called on states to consider more intermediate, community-based alternatives to civil commitment, such as intensive parole....

No state has adopted civil commitment since New York did so in 2007 — a sign, perhaps, that many have come to recognize the inefficacy and exorbitant cost of such programs.  But in states where such programs have long existed, few politicians, if any, have shown interest in dismantling them.  “It’s become a political third rail,” Eric Janus, the director of the Sex Offense Litigation and Policy Resource Center at the Mitchell Hamline School of Law, told me. That’s not only because of the bad optics of shuttering a program meant to protect the public, he explained, but also because the facilities provide jobs.  Larned State Hospital, for instance — where the SPTP is the largest program — is one of the biggest employers in town. “You’ve got a lot of people in the community who are just dependent on those jobs,” Rick Cagan, the former executive director of the Kansas chapter of the National Alliance on Mental Illness, told me. “It is a huge cash cow.”

Legal challenges to these programs have largely proved unsuccessful.  In 1997, the Supreme Court ruled 5–4 against a man in Kansas who argued that civil commitment constituted a form of double jeopardy. The process was civil, not criminal, the ruling explained, and therefore not a form of punishment.  In 2002, the court again upheld the practice, expanding the grounds on which states could commit someone, and leaving little hope for the roughly six thousand people currently held under civil commitment.

Many experts reject the Supreme Court’s reasoning. “The underlying idea of [civil commitment] is essentially . . . punitive,” Janus told me.  And in 2023, an unpublished internal survey of programs in seventeen states conducted by the Sex Offender Civil Commitment Programs Network, an association of facility employees, found that patients spend far more time in “recreational [and] vocational programming” than they do receiving treatment.  The survey also found that the vast majority of those who have entered civil commitment have never been released.  Under Missouri’s SVP law, unconditional release isn’t even an option.  In Kansas, only 16 of the 380 people ever committed have been discharged; 14 have received conditional release; and 65 have died in custody.  Virtually everyone else remains locked up.

Notable new Business Insider analysis of prisoner Eighth Amendment lawsuits

Business Insider has recently published a series of pieces focused on prison Eighth Amendment lawsuits. The full title of this leading piece provide a summary of its findings and themes: "The gutting of the Eighth Amendment: When less than 1% of cases prevail, does a prisoner's right to be free of 'cruel and unusual punishments' still exist?". The piece is an interesting read, and here are a few excerpts:

The Eighth Amendment, which bars "cruel and unusual punishments," was intended by the founders as a bulwark against prisoner abuse. Over the years it came to mean any treatment that "shocked the conscience."  But prisoners and civil-rights attorneys have said that it is now nearly impossible to win such claims in court.

To investigate whether that constitutional protection holds, a Business Insider team read tens of thousands of pages of court records for nearly 1,500 Eighth Amendment complaints, including every appeals court case with an opinion we could locate filed from 2018 to 2022 citing the relevant precedent-setting Supreme Court cases and standards.  We reviewed hundreds of pages of training materials, medical records, incident reports, and surveillance footage.  We read cases from prisoners convicted of violent and nonviolent crimes — some who have spent decades behind bars for murder or sexual assault, others sentenced to short stints for marijuana possession or third-degree assault.  We spoke with more than 170 people, including prisoners and their families, attorneys and legal scholars, correctional staff and prison healthcare providers, and current and former federal judges.

We uncovered a near evisceration of protections for this nation's 1.2 million prisoners, largely propelled by legal standards and laws put into place at the height of the war on drugs.  In our analysis, plaintiffs prevailed in only 11 cases, including two class actions — less than 1%.  "If a right is unenforceable, then it's not much of a right," Paul Grimm, a former federal judge for the District of Maryland, said after reviewing BI's findings. "It is essentially unavailable."

Here are links to the other pieces in the series of notable articles:

• "Debunking the myth of 'frivolous' prisoner suits"
• "The Supreme Court's 'deliberate indifference' trap"
• "It's not excessive force unless it's 'malicious and sadistic'"
• "Federal courts have sanctioned medical neglect by private contractors"
• "Only 1% of prisoners win their claims. Here's what it takes."
• "How we analyzed 1,488 prisoner suits"

"Grasping the Third Rail: Restorative Justice and Violent Crime"

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

Restorative justice is a means of responding to harm — including criminal offenses — through active accountability and repair, rather than through passive punishment and isolation.  While restorative justice has demonstrated potential to meaningfully improve processes and outcomes for individuals and communities, the implementation of restorative justice programs to address crime — both within and alongside the American criminal system — has been slow, limited, and misplaced.  Programs are often directed at low‑level, nonviolent offenses that involve little if any cognizable harm.  This approach creates two problems.  One, it risks net‑widening: bringing more citizens under criminal surveillance and carceral control for minor offenses — further diluting the constitutional and procedural protections already watered‑down in our misdemeanor courts.  Two, it ignores the research showing that restorative justice is more necessary and more effective in cases where serious harm has occurred.

As restorative justice offerings across the country expand, legislators and prosecutors continue to exclude crimes of violence, particularly domestic and intimate partner violence and sexual offenses, from their initiatives.  These offenses have become the “third rails” of restorative justice.  Yet it is precisely in these cases that conventional criminal system responses are failing.  It is also in these cases that restorative justice has the greatest potential to meet the needs of involved parties and reduce rates of reoffending.  So why are they considered off‑limits?  This is partly due to pervasive misunderstandings and misconceptions of what restorative justice is and how it operates, both in theory and in practice.

It is time to grasp restorative justice’s third rail: to reconsider how and where it is being used in the criminal system and explore what restorative justice could offer in the pursuit of more effective and equitable responses to violent crime.

Two federal death row inmates seeking to reject Biden's commutation as they press innocence claims

As reported in this notable new NBC News piece,  "[t]wo prisoners who are among the 37 federal inmates whose death sentences were commuted last month by President Joe Biden — a move that spares them from the death chamber — have taken an unusual stance: They're refusing to sign paperwork accepting his clemency action."  Here is more:

Shannon Agofsky and Len Davis, both inmates at the U.S. Penitentiary in Terre Haute, Indiana, filed emergency motions in federal court in the state's southern district on Dec. 30 seeking an injunction to block having their death sentences commuted to life in prison without parole. The men believe that having their sentences commuted would put them at a legal disadvantage as they seek to appeal their cases based on claims of innocence.....

"To commute his sentence now, while the defendant has active litigation in court, is to strip him of the protection of heightened scrutiny. This constitutes an undue burden, and leaves the defendant in a position of fundamental unfairness, which would decimate his pending appellate procedures,” according to Agofsky's filing.

Davis wrote in his filing that he "has always maintained that having a death sentence would draw attention to the overwhelming misconduct" he alleges against the Justice Department. He also wrote that he "thanks court for its prompt attention to this fast-moving constitutional conundrum. The case law on this issue is quite murky."

But inmates face a daunting challenge in having their death sentences restored, said Dan Kobil, a professor of constitutional law at Capital University Law School in Columbus, Ohio, who has represented defendants in death penalty and clemency cases.  A 1927 U.S. Supreme Court ruling, for example, maintains that a president has the power to grant reprieves and pardons, and "the convict's consent is not required."...

In his filing seeking an injunction for Biden's commutation, Agofsky, 53, said that he is disputing how he was charged with murder in the stomping death and that he is also trying to "establish his innocence in the original case for which he was incarcerated."...  Davis, 60, "has always maintained his innocence and argued that federal court had no jurisdiction to try him for civil rights offenses," his filing says.  Both Davis and Agofsky are asking a judge to appoint a co-counsel in their requests for an injunction of the commutations.

If nothing else, these efforts to refuse a capital commutation seem likely to help ensure these defendants get more attention for their claims of innocence than many others.  And I have often asserted to students in my sentencing classes that convicted murderers claiming to be wrongfully convicted on death row are likely to get more attention for their claims of innocence than convicted murderers given LWOP.  These two defendants certainly seem to agree with this assertion.

Lots of January 6th discussions of possible Trump pardons of Jan 6 defendants

The day after Donald Trump was elected to serve a second term in the Oval Office, I asked in this post "How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?".  Perhaps unsurprisingly, a lot of press outlets are focusing on this notable clemency question on January 6, 2025.  Here is just a partial round-up of new pieces on this front:

From the AP, "Lawmakers brace for Trump’s promised Jan. 6 pardons. Some are urging restraint"

From CBS News, "4 years after Capitol attack, Jan. 6 cases hang in the balance with Trump pardons on the horizon"

From The Guardian, "Trump promised pardons for January 6 rioters in ‘first hour’ of his second term. What might this mean?"

From USA Today, "Will Donald Trump pardon January 6 Capitol rioters? Here's what he has said"

From the Wall Street Journal, "Trump’s Pardon Promise for Jan. 6 Rioters: Does it include the ex-meth trafficker who brought a metal baton and swung it at police?"

From the Washington Post, "The fate of nearly 1,600 Jan. 6 defendants depends on Donald Trump"

With exactly two weeks to go before Inauguration Day, I am wondering if January 20, 2025 might prove historic with two presidents granting clemency on that day.  I am certainly expecting incoming Prez Trump to use his clemency power on first first day back in office, and Prez Biden might be reasonably expected to make use of his clemency power on his last day in office.  Interesting times. 

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
• Prez-Elect Trump reiterates pledge to grant Jan 6 pardons on "first day" in office
• Recording of DEPC panel on "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power"

"Pay-to-Stay Laws and Private Prisons"

The title of this post is the title of this essay authored by Brittany Deitch recently posted to SSRN.  Here is its abstract:

Beginning in the 1970s, as incarceration rates rose rapidly, states began implementing policies aimed at alleviating the financial burdens of supporting the system of mass incarceration.  This Essay takes a macrolevel approach by identifying and beginning to grapple with issues arising from the combination of two of these policies.  First, states began delegating their duties to private prisons with the hope that for-profit entities could perform those duties at a more modest cost to taxpayers.  Second, states enacted pay-to-stay laws, which authorize the state or county to seek reimbursement for the costs of incarceration from the incarcerated person. In taking these steps to mitigate the difficulty of funding mass incarceration, states instead perpetuate the harms of incarceration and create new problems.  Ultimately, I argue that there are structural issues with this necrocapitalist system that siphons funds from the incarcerated to enrich private corporations while enabling the state to recede into the background.  Moreover, even setting aside the inherent structural problems, this combination of policies counterproductively perpetuates mass incarceration by promoting a cycle of poverty and recidivism.

Previewing SCOTUS oral argument in Hewitt with a liberty lament

Next Monday, the Supreme Court will hear oral argument in Hewitt (et al.) v. U.S. to consider this formal question presented:

Whether the First Step Act’s sentencing reduction provisions apply to a defendant originally sentenced before the FSA’s enactment when that original sentence is judicially vacated and the defendant is resentenced to a new term of imprisonment after the FSA’s enactment.

After reviewing the briefs submitted to SCOTUS, I put together this substack essay titled "Liberty’s absence in jurisprudence and practice regarding extreme prison sentences." As the title suggestion, the extended essay is mostly about what strikes me as mostly missing in the briefs, and here is how the essay starts and ends:

Our nation has long valorized liberty. The Declaration of Independence champions “life, liberty and the pursuit of happiness." The U.S. Constitution’s preamble declares that the document seeks to "secure the Blessings of Liberty to ourselves and our Posterity." President Abraham Lincoln’s Gettysburg Address describes the United States a nation "conceived in liberty." And yet our historic commitment to the concept of liberty does not always find expression in our sentencing systems. My review of briefs filed in a pending Supreme Court case prompts me to grouse here about an example of liberty’s conspicuous absence in our sentencing jurisprudence and practices....

 I will close this discussion by lamenting a particular missing argument in Hewitt briefs. The Supreme Court stated in Graham v. Florida that a “sentence lacking any legitimate penological justification is by its nature disproportionate to the offense” and thus violative of the Eighth Amendment.  The chief dissent in Graham, while disputing whether Florida’s use of life sentences for juveniles advanced goals like deterrence and incapacitation, did not take issue with the majority’s assertion that wholly pointless punishment would be constitutionally problematic. In turn, given that it seems entirely pointless, as well as ridiculous, to reimpose multi-century (and congressionally repudiated) prison terms on defendants like Corey Duffey, Tony Hewitt and Jarvis Ross, I am troubled the Hewitt briefs do not raise any constitutional clams based in the Eighth Amendment or even the statutory argument of constitutional doubt. Again, given modern practices and jurisprudence, I am not actually surprised that a case about decades, even centuries, of imprisonment do not engender robust constitutional arguments. But, as I see it, this reflects problems with our modern practice rather than with our founding constitutional commitments.

Check out the whole essay here and lots of other great content at the Sentencing Matters Substack.

US Sentencing Commission now officially without two of its seven voting members

With help from a colleague, I can report on significant news relating to the US Sentencing Commission that goes along with the new Congress.  As reported in this post, back in August 4, 2022, the Senate confirmed Prez Biden’s seven nominees to the US Sentencing Commission, fully reconstituting the Commission after many years of being down some members and after 3+ years without a quorum.  Since August 2022, the Commission has been fully loaded as well as quite active.  The seven commissioners were confirmed for staggered terms, with two of those terms — for former Judge John Gleeson and current Judge Claria Horn Boom — expiring October 31, 2023.  President Biden renominated both Judges Gleeson and Boom, and both nominations were reported favorably out of the Senate Judiciary Committee back in April 2024.  Judge Glesson’s nomination was reported by a bare majority, and Judge Boom’s nomination was reported unanimously. 
 
Both Judge Gleeson and Judge Boom were able to continue to serve after the expiration of their terms, pursuant to 28 U.S.C. § 992. That law authorized their continued service until "the date on which the Congress adjourns sine die to end the session of Congress that commences after the date on which the member’s term expired.”  But on Friday, January 3, 2025 at noon, Congress adjourned the second session of the 118th Congress sine die, the nominations of Judges Gleeson and Boom were returned to the White House, and, pursuant to section 992, the terms of these two Commissioners ended.  This development leaves the Commission now with only five voting members, three Democrats and two Republicans.  Pursuant to 28 U.S.C. § 994, it will require four of these five — a supermajority — to vote for any proposed amendments to the Sentencing Guidelines for those proposed amendments to be promulgated and sent to Congress.

The reduction in the number of active members on the Commission raise lots of questions, including whether President Trump will make nominations to the Commission to fill the two vacancies anytime soon, whether the Commission will move forward with additional proposed amendments to the drug guidelines and others as hinted at at their December public meeting (when they already published notable proposed amendments), whether and how the need for a supermajority of commissioners to amend the Guidelines and for other actions will impact the Commission’s agenda and plans, how Chair Reeves will guide this new Commission configuration to work with the new Administration and the new leadership of the 119th Congress and its two judiciary committees, and many more.  (Speaking of the new Administration, I am tempted to joke that whoever is gearing up DOGE might consider taking  premaure credit for the downsizing of Commission.  Jokes aside, the Commission always seemed more productive and effective when fully staffed.)

In the next few months, some of these questions will begin to be answered, and Commission membership dynamics are sure to impact federal sentencing law and policy in this new year and beyond.  Stay tuned.