Sentencing Law and Policy

Wait continues for two SCOTUS sentencing cases as OT 24 winds down

In what will be among its last few opinion days of October Term 2024, the US Supreme Court this morning released five opinions.  The only criminal justice related case decided today involved a procedural issue for a prisoner's suit, as noted here.  But, yet again, another SCOTUS decision day came and went without opinions in either of the two sentencing cases that have now been pending for quite some time since oral argument before the Justices.  

I believe Hewitt v. US, No. 23-1002, which was argued way back on January 13, 2025, is now the longest pending case since oral argument (though there are other cases from the Court's January sitting also still pending).  Esteras v. US, No. 23-7483, which was argued February 25, 2025, is also taking quite some time.  I am now wondering if we might be getting not only a divided Court in these cases, but perhaps a significant number of extended opinions (as we saw in Erlinger ruling last year).

This Friday is the next announced SCOTUS decision day, and I think there is a decent chance that is when we will finally get both of these opinions.  But I was expecting them to come out today, so who knows.   

Colorado Gov grants (mass?) pardon to those with certain psychedelics convictions

As reported in this Marijuana Moment article, the "governor of Colorado has announced a first-ever round of mass pardons for people with psilocybin-related convictions."  Here is more:

Just about two weeks after Gov. Jared Polis (D) signed a bill into law empowering him and future governors to issue clemency for people who’ve committed psychedelics offenses, he announced during a speech at the Psychedelic Science 2025 conference on Wednesday that he’s exercising that authority. The pardons he’s granting through executive order will provide relief to anyone with a state-level conviction for psilocybin and psilocyn possession....

At the conference, the governor stressed that, while his executive order covers state-level convictions, the major of people with psychedelics-related records were prosecuted at the local level, so he urged people to reach out to their city council representatives and mayors and ask them to pursue similar clemency actions....

The psychedelics clemency move comes several years after Polis issued mass pardons for people with prior marijuana convictions.

The recently enacted psychedelics legislation from Sen. Matt Ball (D) and Rep. Lisa Feret (D) authorizes governors to grant clemency to people with convictions for low-level possession of substances such as psilocybin, ibogaine and DMT that have since been legalized.

Interestingly, this press release from the office of Governor Polis provides some interesting data on how many (or how few) are impacted by the Governor's various clemency actions:

This Executive Order applies to all state level possession convictions for psilocybin or psilocin. The individuals who have these convictions did not need to apply for pardons, and the Governor’s Office has not conducted individual assessments of the people who have been pardoned through this process.... The State has identified four convictions for psilocybin and psilocin possession that will be pardoned by this Executive Order.

In 2020, Governor Polis issued an Executive Order pardoning Coloradans with marijuana possession convictions of one ounce or less, pardoning 2,732 total convictions. In 2021, following increases to the legal amount of marijuana a person could possess, Governor Polis pardoned another 1,351 possession convictions. This action removed barriers for Coloradans whose past convictions were no longer illegal under current laws.

In 5-4 split ruling, SCOTUS holds prisoner has jury trial right on a PLRA exhaustion issue

In a ruling certain to be far less discussed that many other issued by the Supreme Court today, the Justices held by a 5-4 vote in Perttu v. Richards, No.23-1324 (S. Ct. June 18, 2025) (available here), that a prisoner has a right to have a jury resolve an exhaution issue under the Prison Litigation Reform Act.  Chief Justice Roberts authored the opinion for the Court, which gets started and concludes this way:

The Prison Litigation Reform Act of 1995 (PLRA) requires prisoners with complaints about prison conditions to exhaust available grievance procedures before bringing suit in federal court. 42 U. S. C. §1997e(a). In some cases the question whether a prisoner has exhausted those procedures is intertwined with the merits of the prisoner’s lawsuit. Respondent Kyle Richards is a prisoner in Michigan. He alleges that he was sexually abused by petitioner Thomas Perttu, a prison employee. He also alleges that when he tried to file grievance forms about the abuse, Perttu destroyed them and threatened to kill him if he filed more.

Richards sued Perttu for violating his constitutional rights, including his First Amendment right to file grievances. Perttu responded that Richards had failed to exhaust available grievance procedures as required by the PLRA. The parties agree that the exhaustion and First Amendment issues are intertwined, because both depend on whether Perttu did in fact destroy Richards’s grievances and retaliate against him. The question presented iswhether a party has a right to a jury trial on PLRA exhaustion when that dispute is intertwined with the merits of the underlying suit....

If Congress had expressly provided in the PLRA that exhaustion disputes must be resolved by judges, then we would have been required to consider today whether such a provision violates the Seventh Amendment. But it is a “cardinal principle” that we not address such a constitutional question unless necessary. Tull v. United States, 481 U.S. 412, 417, n. 3 (1987). Meanwhile, as we have shown, the usual practice of the federal courts in cases of intertwinement is to send common issues to the jury. Because nothing in the PLRA suggests Congress intended to depart from that practice here, we hold that parties are entitled to a jury trial on PLRA exhaustion when that issue is intertwined with the merits of a claim protected by the Seventh Amendment.

The judgment of the United States Court of Appeals for the Sixth Circuit is affirmed.

Justice Barrett authored a dissent almost as long as the Court's opinion, and was joined by Justices Thomas, Alito and Kavanaugh. It begins this way:

The Prison Litigation Reform Act of 1995 (PLRA) requires prisoners suing under 42 U.S.C. § 1983 to first exhaust the administrative remedies that are “available” to them. § 1997e(a). In the decision below, the Sixth Circuit held that even if prisoners are not ordinarily entitled to a jury trial to resolve this threshold question, the Seventh Amendment requires a jury when exhaustion is intertwined with the merits.  I would reverse.  The jury right conferred by the Seventh Amendment does not depend on the degree of factual overlap between a threshold issue and the merits of the plaintiff ’s claim.

The Court takes a different path.  Instead of resolving the constitutional question that the parties brought to us, the Court holds that the PLRA itself requires a jury trial whenever an issue is common to exhaustion and the merits.  No matter, the Court says, that the PLRA is silent on the subject.  No matter that this statutory argument was not briefed before us. And no matter that it was not passed on by the courts below.

Having taken this detour, the Court ends up in the wrong place. Reading the PLRA’s silence to implicitly confer a right to a jury trial contravenes not only basic principles of statutory interpretation, but also several of this Court’s precedents. I respectfully dissent.

Federal Bureau of Prisons announces new policies to "avoid wasting millions of taxpayer dollars on unnecessary incarceration"

I just saw this morning this new one-page press release from the federal Bureau of Prisons titled "Bureau of Prisons Issues Directive to Fully Implement First Step Act and Second Chance Act."  The release merits a full read, and here are extended excerpts:

In order to restore integrity and fiscal responsibility to the federal prison system, the Bureau of Prisons (BOP) today issued a policy memorandum to staff directing the robust and comprehensive implementation of both the First Step Act of 2018 and the Second Chance Act of 2008 — two bipartisan cornerstones of modern criminal justice reform.

“This is the dawn of a new era, one in which the Bureau of Prisons will realize the full potential of the First Step Act and Second Chance Act,” said BOP Director William K. Marshall III. “The comprehensive policy outlined today will eliminate barriers to maximize the availability of home confinement to those who qualify for community release under the First Step Act and Second Chance Act. This change in policy will fully operationalize the laws as intended by Congress and ensure a smoother transition for many individuals to return to productive lives after incarceration.”

The new policy announced today will have immediate and meaningful benefits. It will:

• Avoid wasting millions of taxpayer dollars on unnecessary incarceration,
• Reduce strain on prison bedspace and staffing, and
• Eliminate prolonged and unnecessary burdens on inmates and their families — particularly those with stable home environments and strong community ties....

Director Marshall continued: “This action marks a bold shift from years of inaction toward a policy rooted in public safety, fiscal responsibility, and second chances. By empowering the agency to release more people who are ready to return to society, we not only save taxpayer dollars, we strengthen families, ease overcrowding, and build safer communities.”

I nthis new Forbes piece, Walter Pavlo has this new piece, headlined "Bureau Of Prisons Retracts Rule, Truly Expands Halfway House," which provides context and further explanation for what the new BOP policy means.  That piece also merits a full read and it concludes this way:

The memorandum is going to be well received by inmates and their families. However, the BOP has a history of slowly implementing programs that favor inmates but quickly adopting restrictions that keep them in prison longer. The Trump administration continues to be one that looks for results among those appointed to serve and it will be up to BOP leadership to deliver on this one as the directive is clear. It is the implementation of this directive that will be the next challenge.

US Sentencing Commission releases new "Quick Facts" on "Prison Contraband"

I am pleased to see that the US Sentencing Commission is continuing to release new "Quick Facts" publications, today with a "special edition" focused on prison contraband.  (Long-time readers know I cannot praise the USSC enough for producing these convenient and informative short data documents, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")  I recommend checking out both this online and this pdf version of these data, along with also an in-depth data briefing video and slideshow.  Here is a bit of background from the online version:

This Special Edition QuickFacts highlights a recent project undertaken by the Commission's Office of Research and Data. Staff reviewed the court documents for individuals sentenced under §2P1.2 “Providing or Possessing Contraband in Prison” of the Guidelines Manual between fiscal years 2019 and 2023. Staff examined various aspects of the case, including the type of contraband possessed, how the contraband was smuggled into the facility, where and how the contraband was discovered, and the individual who was sentenced for the offense.  

"Public Defenders and Collective Action"

The title of this post is the title of this new paper available via SSRN and authored by Nirej Sekhon. Here is its abstract:

It is clear that American carceral policy is excessively harsh, but it is unclear how to bring about the dramatic transformations required to fix it.  Prosecutors, police, and other carceral interests have outsized influence on law and policy.  Collective action problems prevent the group with the greatest interest in systemic reform -- those directly targeted by carceral interests -- from seriously challenging those interests.  Neither incrementalist reformers nor abolitionists have offered plausible solutions for this structural impediment to systemic reform.

This Article contends that the solution lies with public defenders.  They are uniquely situated to advance systemic reform in the legal, policy, and political arenas.  More than any other existing institution with potential influence in those arenas, public defenders' interests align with those directly impacted by carceral policy.  Public defenders have been overlooked as systemic reformers because they are traditionally seen as serving an individual defendant's parochial interest in avoiding conviction.  Sixth Amendment jurisprudence has idealized and entrenched this narrow framing of the defenders' role.  This framing misconceives both the nature of the State's carceral power and public defenders' potentially critical role in constraining it.  Scholars, policymakers, and activists should reject the narrow framing and make defender empowerment the centerpiece of their reformist agendas.

Reviewing some pros and cons as prisons widely embrace electronic tablets

Law360 has this lengthy new piece, headlined "Electronic Tablets Allow Inmates To Connect — With A Cost," which provides an interesting perspective on how a new technology is being used in prisons. I recommend the full piece, and here are a few excerpts:

Corrections officials say the tablets keep drugs out of facilities, make it easier for inmates to connect with family, and offer access to far more books and entertainment options.  But prisoner advocates warn that the technology makes it easier for inmates to be surveiled while cutting them further off from the outside world.  And it ensures that prison telecom companies — and sometimes corrections departments — keep making money.

"There do seem to be benefits to tablets. I wouldn't advocate eliminating them altogether, especially because incarcerated individuals have expressed a desire to have and keep tablets," said University of California at Davis School of Law professor Nila Bala. "On the flip side, tablets can also be used as an excuse to cancel in-person programming and classes, because, 'Hey, it's on your tablet now.'"

The use of electronic tablets behind bars is skyrocketing. Just 12 state prison systems offered the tablets to inmates in 2019. By late 2024, at least 48 states were already employing or introducing the technology, with just two companies — Securus Technologies, which owns JPay Inc., and Global Tel*Link Corp., also known as ViaPath — contracted to provide and operate the tablets in most of those states, according to the Prison Policy Initiative....

This digital shift has improved prison conditions, according to corrections officials.  For starters, the technology has "most definitely" reduced the drugs and contraband being snuck into her jail via paper mail, said Shannon Herklotz, executive chief deputy in the Detention Bureau of the Tarrant County Sheriff's Office in Texas.... The tablets' video and instant messaging features also make it easier for inmates to stay in touch with loved ones, particularly those who can't travel to the jail, Herklotz added....

The tablets aIso let incarcerated individuals access a much larger selection of entertainment and educational materials, including games, movies, books and podcasts, at least some of which are free, according to facility operators....

It's sometimes an expensive lifeline, though, say inmate advocates.  Most facilities say inmates are provided the tablets for free, but that claim is deceptive since inmates are often charged for services they use or time they spend on those tablets, advocates point out....  Several state corrections departments earn a percentage of the fees tablet providers charge inmates, while other states earn a flat fee for access to their facilities....

In addition to reaching into inmates' wallets, the tablets let authorities reach into their communications, experts warn. Corrections officials can access all the scanned mail, text messages, emails and videos sent and received via the tablets, which can be stored indefinitely, according to inmate advocates.

CCJ and RAND announce launch of "Task Force on Artificial Intelligence" to examine AI in CJS

As detailed in this press release, the "Council on Criminal Justice (CCJ), in partnership with RAND, today announced the launch of a national task force to develop standards and evidence-based recommendations for the integration and oversight of artificial intelligence (AI) in the criminal justice system."  Here is more from the start of the press release:

Chaired by former Texas Supreme Court Chief Justice Nathan Hecht, the Task Force on Artificial Intelligence includes 14 other leaders, from AI technology developers and researchers to police executives and other criminal justice practitioners, civil rights advocates, community leaders, and formerly incarcerated people. (See list of members [at this link].)

The work of the Task Force will span the four major sectors of the criminal justice system: law enforcement, courts, corrections, and community organizations. Over the next 18 months, the group will:

• Develop consensus principles to guide the safe, ethical, and effective use of AI in criminal justice settings;
• Translate the principles into specific, operationalized standards for AI products and procurement that can be used by agency leaders, policymakers, and community groups alike; and
• Publish high-quality, accessible research for policymakers, agencies and organizations, key individuals, and the field at large.

“Artificial intelligence is developing at breakneck speed, delivering technological advancements unlike any we have seen before, and presenting both significant opportunities and formidable challenges for the criminal justice system,” Hecht said. “This Task Force will meet the urgent need for credible guidance to help policymakers and practitioners navigate a complex and rapidly evolving landscape in ways that maximize benefits, minimize harms, and improve justice.”

The group’s work will be supported by Task Force Director Jesse Rothman — who has worked as a researcher, educator, policy analyst, and funder across the criminal justice and emerging technology landscape — as well as researchers at RAND, a leading research organization with extensive expertise in criminal justice and emerging technologies. RAND will conduct original research on the safe, ethical, and effective integration of AI into criminal justice agencies and processes.

“AI brings powerful tools to affect public safety and efficiency in the criminal justice system,” said Jason Matheny, RAND’s president and chief executive officer. “RAND’s strength is in objective research and rigorous analysis — and that’s how we’ll contribute most, by ensuring that policymakers at all levels have clear, informed guidance.”

I am quite excited to see what this new Task Force may produce, and especially because AI tools of all sorts (and our understanding of AI potential and risks in criminal justice systems) are certainly going to evolve over the next 18 months.  As but one sentencing example, the use of an AI version of a deceased victim in an Arizona sentencing hearing was big news last month, but it could readily become old hat by December 2026.

"Ending the Presumption of Reasonableness and Using Data to Reduce Sentencing Disparities"

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

The idea that one’s punishment should depend on the crime committed rather than which judge happens to do the sentencing strikes most as uncontroversial, if not a requirement for a fair sentencing regime.  Forty years ago, the passage of the Sentencing Reform Act promised just that result. Increased data availability allows us to evaluate the project’s success.  The results are not encouraging.

Federal defendants are sentenced using guidelines issued by the United States Sentencing Commission that sometimes bear little relation to the underlying wrongdoing.  This has created a split among judges, with some following the guidelines and others rejecting them. The consequences are arbitrariness in sentencing and unwarranted disparities across offenders.

In 2007, the Supreme Court permitted appellate courts to presume the reasonableness of guideline sentences, largely insulating those sentences from judicial review.  Much has changed since then, and it is time for the presumption to go.  The findings of the original data analysis presented in this Article, as well as developments since the Court’s decision, show that the claims made in support of the presumption are unfounded.  In fact, some of the related case law rests upon provably false empirical premises.

Today, most sentences are not within the range set by the guidelines.  Favoring the minority of sentences that are within the range results in a sentencing regime incompatible with the overriding statutory aim of avoiding unwarranted sentencing disparities.  Rather than presuming the reasonableness of within-guideline sentences, the courts can chart a course correction by prioritizing the data on actual sentences from the Sentencing Commission.  Such a shift would achieve more consistent sentences across offenders convicted of similar crimes.

Highlighting efforts to fill a gender gap in second-look sentencing reform efforts

The New York Times has this notable new article about second-look sentencing reform efforts in the states.  The full headline highlights the article's themes: "Prison Reform Left Women Behind. Then Prosecutors Stepped In.  California passed the nation’s first prosecutor-initiated resentencing law in 2018. Few women benefited from these laws, until now."  I recommend the lengthy article in full, and here are some excerpts:

In late 2023, Dena Hernandez returned to her room inside the women’s prison in Chowchilla, Calif., and spotted a packet in the mail. It contained a letter saying the Los Angeles district attorney was looking for incarcerated women who might be eligible for shortened sentences. “Your case,” the letter read, “has been identified for initial review.”

Ms. Hernandez was in shock. She was 13 years into a 28-year prison sentence for carjacking. Hours away from her family, she had received just one visit. There were no lawyers puzzling over her case or community groups pleading for clemency. “Is this real?” Ms. Hernandez asked her roommate.

The letter was from an organization called For the People. It said there was a law in California allowing prosecutors to revisit old sentences that are “no longer in the interest of justice.” After going into effect in California in 2019, the law passed in four more states, part of a wave of criminal justice reform efforts washing over the United States.

But of all of the people who had come home under these resentencing laws, very few were women. Ms. Hernandez’s case was about to become part of an effort in California to change that....

[Hillary] Blout founded For the People to help implement the law and, eventually, to push other states to adopt it, too. Washington, Oregon, Illinois and Minnesota all followed suit.  By 2023, according to For the People’s count, roughly 1,000 people had been resentenced. But a trend had emerged: Only a handful were women....

Men, who account for more than 90 percent of the United States’ incarcerated population, inevitably made up a vast majority of cases. But some criteria that prosecutors were using to identify candidates for resentencing had the unintentional effect of excluding women.  In some California counties, prosecutors screened out anyone convicted of violent offenses, regardless of the circumstances.  But Ms. Blout found that women convicted of violent offenses often play subordinate roles in crimes perpetrated by men.  Those men are frequently their abusers.  In some cases, their victims are those abusers.

The criteria left little room for these nuances, and overlooked other societal harms. Women are disproportionately unsafe in prison; while they make up just 7 percent of the federal and state prison population, they account for more than one quarter of victims of sexual abuse by prison staff.  Just last year, a women’s prison in Dublin, Calif., nicknamed the “rape club,” was shut down for its rampant culture of sexual violence.

South Carolina complete execution of double murderer 20 years after his crimes

As reported in this AP piece, a "South Carolina man sent to death row twice for separate murders was put to death Friday by lethal injection in the state’s sixth execution in nine months. Stephen Stanko, 57, was pronounced dead at 6:34 p.m." Here is more:

He was executed for shooting a friend and then cleaning out his bank account in Horry County in 2005. Stanko also was serving a death sentence for killing his live-in girlfriend in her Georgetown County home hours earlier, strangling her as he raped her teenage daughter. Stanko slit the teen’s throat, but she survived....

Three family members of his victims stared at Stanko and didn’t look away until well after he stopped breathing....

Stanko was leaning toward dying by South Carolina’s new firing squad, like the past two inmates before him. But after autopsy results from the last inmate killed by that method showed the bullets from the three volunteers nearly missed his heart, Stanko went with lethal injection.

Stanko was the last of four executions scheduled around the country this week. Florida and Alabama each put an inmate to death on Tuesday. On Wednesday, Oklahoma executed a man transferred from federal to state custody to allow his death....

Stanko is the sixth inmate executed in South Carolina in nine months after the state went 13 years without putting an inmate to death because it could not obtain lethal injection drugs. The South Carolina General Assembly approved a firing squad and passed a shield law bill which allowed the suppliers of the drugs to stay secret.

"From Punishment to Prevention: A Better Approach to Addressing Youth Gun Possession"

The title of this post is the title of this new publication from The Sentencing Project.  The report runs more than 30 pages and an extensive executive summary comprises the first three substantive pages, and here are ject a few paragraphs from that summary which highlight the report's themes:

Reducing gun violence should be an urgent priority in the United States.  However, imposing harsh consequences for all adolescent gun possession cases harms urban youth of color disproportionately without benefits for community safety. Other approaches to reducing gun violence are far more equitable and effective....

Rather than keeping us safer, aggressive law enforcement and inflexible and punitive court responses to youth gun possession are likely to worsen gun violence and other crime by youth.  Meanwhile, inflexible punitive responses to adolescent gun possession damage young people’s futures, and they exacerbate the justice system’s already glaring racial disparities.  The most promising approaches to reduce gun violence involve comprehensive initiatives in which courts work with community partners to address the reasons why youth and young adults obtain guns, and whole communities mobilize to engage and intervene with youth and young adults who are at maximum risk for gun violence....

Given the varied reasons why youth carry firearms and the vastly different risks posed by different categories of youth, a one-size-fits-all approach to gun possession cases is ineffective and harmful.  For most youth arrested on gun possession charges, research makes clear that punitive responses are counterproductive.

Oklahoma completes execution for murder committed 25+ years ago

As reported in this local article, "convicted murderer has been executed in Oklahoma as a direct result of President Donald Trump's return to office.  John Fitzgerald Hanson, 61, was pronounced dead at 10:11 a.m. Thursday, June 12, at the Oklahoma State Penitentiary." Here is more:

He had been scheduled for execution on Dec. 15, 2022, but the Biden administration refused to return him to Oklahoma from a federal prison in Louisiana. The transfer went through on March 1, weeks after Trump began his second term.

He was executed for the fatal shooting of Mary Agnes Bowles, who was kidnapped from the parking lot of a Tulsa mall on Aug. 31, 1999. The victim was 77. Hanson and an accomplice, Victor Miller, wanted the retired banker's car for a robbery spree. Hanson has always denied being the shooter, his attorneys said.

Hanson had been serving a life sentence, plus 82 years, at the U.S. Penitentiary in Pollock, Louisiana, for federal crimes involving the robbery spree. Oklahoma's attorney general, Gentner Drummond, sought Hanson's transfer after Trump issued a sweeping executive order on his first day back in office "restoring" the death penalty.... “This case demonstrates that no matter how long it takes, Oklahoma will hold murderers accountable for their crimes," Drummond said in a news release after witnessing the execution....

The execution took only 10 minutes to complete after Hanson made his brief final statement. It was the 17th in Oklahoma since lethal injections resumed in October 2021 after a long hiatus and one of the fastest.

"Second Look Myopia: State Sentencing Reform and the Local Prosecutorial Response"

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

This Article advises caution against over-reliance on local prosecutors’ offices to effect second-look reforms and to filter cases worthy of review.  Using the lens of New York’s recent second-look law, the Domestic Violence Survivors Justice Act (DVSJA), I analyze the ways in which the local prosecutor can serve as a functional barrier to statewide implementation of sentencing reform. 

The New York State Legislature enacted the DVSJA — after advocacy from hundreds of directly impacted individuals, stakeholders, and organizations and after significant opposition from only the District Attorneys’ Association — to change the way the State sentences survivors of domestic violence.  The DVSJA also allows incarcerated survivors to seek resentencing under a reduced sentencing scheme.  Data from the cases decided in the ’DVSJA’s first five years of implementation suggests that consent from prosecutors is correlated with success in securing resentencing.  It also suggests that this consent is unevenly distributed throughout the state.  In some jurisdictions, the DA’s office has served almost entirely to obstruct the path to relief.  Even in those counties where prosecutors have demonstrated an openness to taking a second look, some categories of cases expose the limits of their willingness to pursue reform. This, I argue, should give us pause about the power of the local prosecutor both to implement and to thwart such statewide resentencing efforts.  It offers, in turn, reason to be skeptical about second-look measures that depend on prosecutorial initiation or consent.

Unanimous Supreme Court clarifies what qualifies as "second or successive" habeas application under AEDPA

The Surpeme Court's first released opinion this morning was a unanimous ruling in Rivers v. Guerrero, No. 23-1345 (S. Ct. June 12, 2025) (available here).  Authored by Justice Jackson, the opinion begins this way:

Incarcerated individuals who seek to challenge their imprisonment through a federal habeas petition are generally afforded one opportunity to do so. See 28 U.S.C. §§ 2254, 2244.  Before a federal court can address a petitioner’s second or successive federal habeas filing on the merits, the incarcerated filer must clear strict procedural hurdles that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) erects.  See § 2244(b).  This case presents the question of how to classify a second-in-time habeas filing when the judgment denying the first application is under review on appeal. Does that second habeas-related submission qualify as a second or successive application, thereby triggering § 2244(b)’s stringent gatekeeping requirements?

We hold that, in general, once the district court has entered its judgment with respect to the first habeas petition, a second-in-time application qualifies as “second or successive” and is thus properly subject to the requirements of §2244(b).

The Court today released five more opinions, nearly all also unanimous and dealing with mostly procedural issues. A couple of these other rulings might be viewed as criminal adjecent, but the wait continues for the two notable argued sentencing cases still pending, Hewitt v. US, No. 23-1002 (argued Jan 13, 2025), and Esteras v. US, No. 23-7483 (argued Feb 25, 2025).

Once the Rivera decision came out, I was thinking today might be a SCOTUS criminal case day.  But, based on the Court's announced opinon days, June 18, would now appear to be the earliest we can hope for Hewitt and Esteras.  Especially since other matters have my attention today, I suppose I do not mind a little more waiting.  Still, the fact that we got neither of these opinions today reinforces my expectation that these cases are going to produce a divided Court and perhaps a number of opinions.

Another round of coverage and comment on Prez Trump's clemency practices

Two weeks ago, there were press reports that more federal clemency grants were expected "in the coming days."  And yet, we have not seen any new grants from Prez Trump since a set of notable pardons and commutations issued in late May.  Still, considerable coverage and commentary about his clemency work continues, so here is another partial round up:

From ABC News, "Bondi says LA protests 'very different' than Jan. 6 rioters who were pardoned"

From Forbes, "Trump’s Pardons Are Part Of Remaking DOJ"

From the New York Times, "The Pardon Power Is Helping Trump Realize His Dreams"

From the Washington Examiner, "Trump 2.0 fashions pardon powers in ‘unprecedented’ manner"

From the Washington Post, "What it takes to get a Trump pardon: Loyalty, connections or the pardon czar"

"The Sentencing Guidelines Are Commencing A New Era"

The title of this post is the headline of this notable new Law360 article authored by Bradley Henry and Nicholas Spiller. The piece discusses at length the pending federal sentencing guideline amendments that essentially eliminate "departures" from the federal sentencing process. I recommend the article in full, and here are excerpts from the piece:

In April, the U.S. Sentencing Commission approved sweeping revisions to the federal sentencing guidelines that — absent congressional disapproval — will take effect on Nov. 1. Most importantly, these amendments include one of the most consequential changes to the federal sentencing guidelines since their inception.

By eliminating most departure provisions, streamlining the analytical framework, and reinforcing courts' obligation to craft sentences that are "sufficient, but not greater than necessary," the commission seeks to simplify procedure, enhance transparency and promote individualized justice, while still guarding against unwarranted sentencing disparities.... [Over time after Booker,] judges and practitioners increasingly bypassed the technical departure rubric in favor of broader, more flexible Section 3553(a) variances. The departure framework, once a central feature of federal sentencing, became largely obsolete as courts recognized that the statutory factors provided a more comprehensive and adaptable basis for individualized sentencing.

The 2025 amendments acknowledge this evolution by collapsing the second and third steps into a single inquiry, creating a new two-step process. After correctly calculating the guideline range, courts will move directly to the statutory Section 3553(a) analysis, considering all relevant facts and circumstances in determining whether a nonguideline sentence — a variance — is warranted. The terms "departure" and "depart" virtually disappear from the operative text. Only two departure mechanisms survive intact — Section 5K1.1 (substantial assistance to authorities), and Section 5K3.1 (early-disposition programs).

This streamlined approach is designed to make the sentencing process more efficient and transparent. By eliminating the need to parse whether a particular circumstance qualifies as an encouraged, discouraged or prohibited ground for departure, judges can focus on the holistic assessment required by Section 3553(a). This change also aligns the guidelines with prevailing judicial practice and the realities of modern sentencing....

The 2025 amendments neither diminish the guidelines' central role, nor dilute the significance of an accurate guideline calculation. Rather, they modernize sentencing procedure by eliminating a duplicative step that had outlived its purpose. The amendments are intended to reflect a careful balance between consistency and flexibility, aiming to promote individualized justice while safeguarding against unwarranted disparities.

Whether the new model ultimately leads to greater fairness or introduces new complexities will depend on its application by courts and close monitoring by the commission. Ongoing feedback from judges, attorneys and other stakeholders will be essential in refining the process and ensuring that the goals of the amendments are realized.

Alabama completes another execution using nitrogen gas

As reported in this local article, "Alabama has executed Gregory Hunt by nitrogen hypoxia for the 1988 murder of Karen Lane."  Here is more:

A doctor pronounced Hunt to dead at 6:26 p.m. June 10. His death marked Alabama's third execution of the year. Overall, Hunt is the fifth person to be executed by nitrogen hypoxia in Alabama. The state executed its first inmate by nitrogen hypoxia in 2024. Across the globe, organizations, including the Vatican, have protested the use of nitrogen hypoxia in execution, calling it cruel and unusual punishment....

John Hamm, the Alabama Department of Corrections commissioner, defended nitrogen hypoxia as a humane way to execute people in Alabama. Hamm said that five of Lane's family members witnessed the execution, and Hamm read a statement from her family.

"... Make no mistake, this night is not about the life of Greg Hunt," the family said in the statement. "This night is about the horrific death of Karen Sanders Lane, whose life was so savagely taken from her. Karen was shown no mercy. She was not given a second chance. Karen was shown no grace. This is also not about closure or victory. This night represents justice and the end of a nightmare that has coursed through our family for 37 long years."...

Hunt beat Lane to death Aug. 2, 1988 in her home in Cordova. He was charged with sexual abuse, burglary and capital murder. Hunt admitted murdering Lane but denied that he sexually abused her, even filing a final appeal May 23, claiming he did not sexually abuse Lane....

Court documents show Hunt beat Lane with his hands, feet and a bar stool. She had 62 individual external injuries to her body. Internally, Lane had more than 20 fractures to her ribs and rib cage, a broken sternum, a lacerated liver and injuries to her aorta. She died of blunt force trauma and bruising of the brain.

Florida completes its sixth execution of 2025

As reported in this AP article, a "man convicted of raping and killing a woman three decades ago after kidnapping her from a supermarket parking lot was executed Tuesday in Florida." Here is more:

Anthony Wainwright, 54, received a lethal injection at Florida State Prison near Starke. He was convicted in the April 1994 killing of 23-year-old Carmen Gayheart, a mother of two young children, in Lake City.

The execution began about 6:10 p.m. Wainwright's shoulders shuddered a couple of times, and he blinked and took several deep breaths before becoming completely still at 6:14 p.m. Wainwright was pronounced dead at 6:22 p.m., according to Byran Griffin, a spokesman for Gov. Ron DeSantis....

He is the sixth person put to death in Florida this year, and another execution is scheduled for later this month. The state executed six people in 2023, but only carried out one execution last year. There were four executions scheduled around the country this week, including another one on Tuesday in Alabama. A temporary stay was issued Monday for an execution scheduled for Thursday in Oklahoma.

Richard Hamilton, the other man convicted in Gayheart’s killing, was also sentenced to death. But he died on death row in January 2023 at the age of 59.

Gayheart’s sister said before the execution that three decades is too long to wait for justice. “It’s ridiculous how many appeals they get,” Maria David told The Associated Press, adding that each step of the appeals process reopened her family’s wounds. “You have to relive it again because they have to tell the whole story again.”

Wainwright and Hamilton escaped from prison in North Carolina, stole a green Cadillac and burglarized a home the next morning, taking guns and money. Then they drove to Florida and when the Cadillac began to have problems in Lake City, they decided to steal another vehicle.

They confronted Gayheart, a community college student, on April 27, 1994, as she loaded groceries into her blue Ford Bronco, according to court documents. They forced her into the vehicle at gunpoint and drove off. They raped her in the backseat and then took her out of the vehicle and tried to strangle her before shooting her twice in the back of the head, court filings say. They dragged her body several dozen yards from the road and drove off.

The two men were arrested in Mississippi the next day after a shootout with police. A jury in 1995 convicted Wainwright of murder, kidnapping, robbery and rape and unanimously recommended that he be sentenced to death.

Wainwright’s lawyers had filed multiple unsuccessful appeals over the years based on what they said were problems with his trial and evidence that he suffered from brain damage and intellectual disability....

David, Gayheart’s sister, said she felt cheated that Hamilton died before the state could execute him. She said she was “overcome with emotion” when she heard the governor had signed a death warrant for Wainwright. Her parents both died while waiting for justice to be served, she said. “There’s nothing that would keep me from seeing this all the way through,” she said....

Over the years, she has kept a book where she put every court filing, from the initial indictment through the latest appeals.

“I’m looking forward to getting the last pieces of paperwork that say he’s been executed to put into the book and never having to think about Anthony Wainwright ever again,” David said.

"Revisiting the Lasting Impacts of Incarceration"

The title of this post is the title of this new paper now available via SSRN and produced by multiple authors.  Here is its abstract:

Using newly-linked administrative and commercial data from Virginia spanning 25 years, we study the consequences of incarceration.  While previous research has examined labor market outcomes and recidivism, we focus on two of the primary channels through which low-income households build wealth: asset ownership (homes and cars) and human capital formation.  To identify causal effects, we use a matched differencein-differences design.  In line with much of the literature on the impact of incarceration in the U.S., we find no evidence of scarring effects on labor market outcomes or changes in recidivism beyond the incapacitation period.  However, we find that incarceration leads to a persistent reduction in asset accumulation: seven years after sentencing, homeownership has declined by 1.1 percentage points (12.1%) and car ownership by 2.7 percentage points (18.1%). Incarceration also lowers human capital formation, reducing college enrollment by 1.4 percentage points (15.1%).