Sentencing Law and Policy

Supreme Court unanimously reiterates "totality of the circumstances" approach to Fourth Amendment

The Supreme Court this morning handed down a short opinion in Barnes v. Felix, No. 23–1239 (S. Ct. May 15, 2025) (available here).  The unanimous ruling, authored by Justice Kagan for the Court, breaks no new ground, but reiterates prior doctrines in reversing the Fifth Circuit.  Here is how the nine-page opinion for the Court starts:

A police officer’s use of deadly force violates the Fourth Amendment when it is not “objectively reasonable.” Graham v. Connor, 490 U.S. 386, 397 (1989). And that inquiry into reasonableness, we have held, requires assessing the “totality of the circumstances.” Id., at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 9 (1985)).

The question here is whether that framework permits courts, in evaluating a police shooting (or other use of force), to apply the so-called moment-of-threat rule used in the courts below.  Under that rule, a court looks only to the circumstances existing at the precise time an officer perceived the threat inducing him to shoot. Today, we reject that approach as improperly narrowing the requisite Fourth Amendment analysis.  To assess whether an officer acted reasonably in using force, a court must consider all the relevant circumstances, including facts and events leading up to the climactic moment.

Justice Kavanaugh authored a six-page concurring opinion that was joined by Justices Thomas, Alito and Barrett. Here is its first paragraph:

I join the Court’s opinion.  I agree that the officer’s actions during the traffic stop in this case should be assessed based on the totality of the circumstances.  I write separately to add a few points about the dangers of traffic stops for police officers, particularly when as here the driver pulls away in the midst of the stop.

I will leave it to Fourth Amendment experts to determine if there is anything doctrinally consequential in this rulings. For me and perhaps other sentencing fans, some of the broader vibes seem worth noting. For example, it seems interesting (but perhaps unsurprising) who joined and who did not join Justice Kavanaugh's concurrence. In addition, I find notable that both opinions include much discussion of modern Fourth Amendment caselaw, as well as modern policing realities, but seemingly do not engage at all the text, history and tradition of the actual Fourth Amendment.

Lots of new data from the US Sentencing Commission on many fronts

As it does so well, US Sentencing Commission is continuing to release all sort of notable data on all sorts of issues in the federal sentencing world. For example, the Commission has released these new "Quick Facts" documents:

• NEW Career Offenders (May 2025)
• NEW Drug Trafficking (May 2025)
• NEW Fentanyl Trafficking (May 2025)
• NEW Fentanyl Analogue Trafficking (May 2025)
• NEW Methamphetamine Trafficking (May 2025)

In addition, the Commission this week has released here the "latest data on motions filed for compassionate release in federal court" running through March 2025.

And, last but not least, the Commission has a bunch of new data on guideline retroactivity past and potentially future, with data on the retroactive impacts of 2023 criminal history guideline amendment and on the potental impact if certain 2025 guideline amendment were made retroactive:

• NEW Retroactivity Report on Part A of the 2023 Criminal History Amendment (May 12, 2025)
• NEW Retroactivity Report on Part B of the 2023 Criminal History Amendment (May 12, 2025)
• NEW Analysis of the Impact of Certain 2025 Guideline Amendments if Made Retroactive (May 15, 2025)

New Georgia law reforms process for exempting persons with intellectual disability from capital punishment

Georgia's administration of capital punishment has long had a unique place in the history of the death penalty in the United States.  But, as detailed in this local article, one unique aspect of its modern death penalty process changed this week to be more in line with other state capital processes.  Here are the details:

HB 123 lowers the legal threshold for proving a person has an intellectual disability in the courtroom.  Prior to the bill being signed, it had to be proven “beyond a reasonable doubt,” the highest threshold for evidence.  Now, under HB 123, it must be proven “by preponderance of evidence,” a much lower standard of proof.

Georgia first outlawed capital punishment for people with proven intellectual disabilities in 1988, but the standard of proof remained among the most difficult in the nation to achieve.  A 2002 decision from the U.S. Supreme Court outlawed capital punishment for people with proven intellectual disabilities nationwide, but left it up to individual states to determine the threshold for proving a disability in court.  Until Tuesday, Georgia remained the only state where it must be proven “beyond a reasonable doubt.”...

The new law also moves the proceeding to determine intellectual disability ahead of a formal trial, not during it, meaning a person’s mental capacity is determined right away....

The law is not retroactive. Georgia currently has 34 inmates remaining on death row, and none of them are eligible for appeal under HB 123.  Unlike some bills signed by the governor which take effect July 1, HB 123 became active law when Kemp signed it Tuesday.

The law's shift to a pretrial determination of intellectual disability means that now in Georgia, as is the case in all other states, it will be for a judge to determine whether a defendant is intellectually disabled rather than being determined by a jury while assessing guilt or innocence.

Notable reporting on the new "wild west" of clemency in Prez Trump's second term

In this post around Thanksgiving last year at the Sentencing Matters Substack, I made the case for chief executives to make more and more regular use of their clemency powers.   And I had this musing in that commentary:  "I think it worthwhile to imagine how possible actions by Trump to prioritize use of his clemency powers early in his second term might portend a new clemency tradition — and not just for Presidents, but also for Governors — of chief executives exercising this historic constitutional power early and regularly, rather than in just a lame-duck frenzy."  Not long thereafter, of course, both out-going Prez Biden and in-coming Prez Trump made greater use of their clemency powers than I could have predicted or guessed.

My prior piece came to mind as I read this notable new Wall Street Journal article fully headlined "The Wild West of Presidential Pardons in Trump’s Second Term: Trump sets off scramble among those seeking clemency to use lobbyists, personal connections to president."  I recommend the article in full, and here are excerpts:

Trump has turned the pardon process into the Wild West. What had long been a sober legal proceeding done by career officials in the Justice Department increasingly resides in the White House and depends on the whims of a president who is receptive to arguments of political persecution.

The president, according to a senior administration official, has taken a particular interest in the work of Alice Johnson, the pardon czar he appointed earlier this year. He regularly asks her, “Where are my pardons?” The White House is expected to announce a substantial batch of pardons in the coming weeks, the official said.

Pardon seekers are shelling out to hire lawyers and lobbyists who tout access to those in the president’s inner circle. Others seek to make their case to Trump or his inner circle at places they frequent, showing up at events at Mar-a-Lago in Florida, GOP hangouts on Capitol Hill and a collegiate wrestling match. And still others connect with conservative influencers, pitching their case on shows Trump consumes.

The president is listening. Several of the pardons he has issued so far followed advocacy by people close to him. Some lawyers with close ties to Trump, including the president’s former lawyers Jesse Binnall and Jim Trusty, have helped clients pursue pardons, people familiar with the matter said. Others who have received pardons got boosts from Health and Human Services Secretary Robert F. Kennedy Jr. and former GOP Rep. Matt Gaetz, a longtime ally of Trump’s....

Pardon seekers have found success drawing parallels between their cases and those of Trump, a felon who has railed against his own experience with the justice system. “You need someone who can get in front of the president for five minutes and make a pitch of how a person was wrongfully targeted,” said Eric Rosen, a defense attorney who has clients seeking pardons.

A senior administration official said that pardon applicants undergo “extensive vetting,” conducted by the pardon czar’s office, the White House Counsel’s Office and the Justice Department. The administration’s priority, the official said, is to pardon those who were the targets of “unfair justice” or those deserving of a second chance.

Some prior recent related posts covering only a portion of Prez Trump's clemency actions:

• Prez Trump grants 14 commutations and blanket pardons to all other Jan 6 defendants 
• Prez Trump formally announces Alice Marie Johnson will be his "pardon czar" 
• Wide praise, but uncertain plans, for Prez Trump's new pardon czar
• Prez Trump continuing to make robust use of his clemency pen (for white-collar offenders) 
• Prez Trump keeps using his clemency pen, building quite the clemency record
• "Lawyers Are Quoting $1 Million in Fees to Get Pardons to Trump"

Menendez brothers resentenced by California judge to 50 years to life, making them parole eligible

As reported in this Los Angeles Times article, "Erik and Lyle Menendez received a chance at freedom Tuesday after more than 35 years in prison, with an L.A. County judge granting a request to resentence them after hours of emotional testimony from family members who said the brothers had spent enough time behind bars for the brutal 1989 killings of their parents."  Here is more:

Superior Court Judge Michael Jesic said late Tuesday that he would resentence the brothers to 50 years to life, meaning they will be granted a parole hearing at some point in the future. “We are deeply humble and grateful and happy for our family,” Lyle Menendez said in a phone call with one of his attorneys outside the courthouse in Van Nuys, which was relayed to a Times reporter.

Dist. Atty. Nathan Hochman argued that the brothers had failed to show proper “insight” into their crimes and had not atoned for lies they told over the last 30 years about the nature of the killings, but Jesic dismissed those arguments as irrelevant . Prosecutors needed to prove the brothers posed an unreasonable risk to the public, according to Jesic, who said they failed to do so.

After deciding they should be resentenced, Jesic allowed each brother to speak to the court over a Zoom call from prison. In tearful addresses that drew sobs from the relatives who have been fighting for their release for years, Erik and Lyle said they took full responsibility for their crimes. ...

Jesic’s decision ended an eight-month saga that started when then-Dist. Atty. George Gascón filed a petition for the brothers to be resentenced late last year, and followed an emotional day of testimony.... The hearing was the culmination of years of advocacy by the family to free the brothers, who were convicted of first-degree murder.

Defense attorney Mark Geragos asked Jesic to resentence the brothers to manslaughter, arguing they shot their parents to death out of fear their father might kill them to cover up years of sexual abuse. But instead, Jesic’s ruling aligned with a request made last year by Gascón.  The reduced sentence of 50 years to life makes them eligible for parole under the state’s youthful offender law because they were under the age of 26 at the time of the murders....

A parole hearing will likely be scheduled in the coming months. But Gov. Gavin Newsom could also grant them clemency if he honors a pending request. A hearing on that matter is currently scheduled for June 13.

California’s resentencing law leans heavily in favor of defendants, a point Jesic reminded the courtroom of early Tuesday. Under state law, Jesic said, he could block a resentencing petition only if the defendant poses an “unreasonable risk of danger to public safety,” meaning there is a risk they will commit another violent crime — such as murder, manslaughter or rape — if they are released.

Some prior related posts:

• Kim Kardashian advocates reconsidering Menendez brothers' LWOP sentences just as Los Angeles DA begins to do so
• LA District Attorney announces that he will seek resentencing for the Menendez brothers
• Continuing coverage and comment on Menendez brothers' possible resentencing 
• California Gov to hold off on Menedez clemency decision pending resentencing review by new DA
• New Los Angeles DA asks to withdraw prior DA's motion for resentencing in Menedez brothers' case 
• Judge rejects new Los Angeles DA's request to revoke predecessor's resentencing petition for Menendez brothers 

The latest (and still limited) discussions of the great crime decline circa 2025

I have done a couple of 2025 posts (here and here) drawing on big city "real time" homicide data from police departments to detail the remarkable decline in murders apparently unfolding in many large urban areas through the first part of 2025.  Though these data may not be representative of the whole nation and the trends may not persist through 2025, I continue to want to speculate that we may be in the middle of a (post-COVID spike) great crime decline.  And yet, I still see relatively little discussion of these data and trends which is what I keep wanting to slag notable discussions of these topics for a few sourses: 

From External Processing, "Explaining the COVID Violence Spike and the Roaring Crime Decline: Four Reasons for the Historic Beginning to the 2020s"

From Jeff-alytics, "How 2025 Could Feature The Lowest US Murder Rate Ever Recorded: Maybe!"

From Slate, "A Farewell to Arms: With some American cities seeing their lowest murder numbers in decades, will Donald Trump change his tune?"

These pieces have lots of interesting data and insights and merit reas in full. I will conclude just with a focus on Jeff Asher's summary statement in Jeff-alytics post: "There are a ton of hypotheticals and factors that could change.... But it’s fairly clear that a decline in the direction we’re currently seeing would safely give 2025 the title of lowest US murder rate ever recorded."

"Confronting Uncharged Conduct"

The title of this post is the title of this new article available via SSRN and authored by Barnett Harris and Christopher Merken. Here is its abstract:

Every year, federal judges sentence tens of thousands of criminal defendants to carceral terms.  Although Congress requires sentences to be “sufficient, but not greater than necessary,” sentencing judges often rely, at least in part, on untested facts — facts that are not subject to the rigors of the adversarial process — because federal courts do not apply the Sixth Amendment’s Confrontation Clause protections at sentencing.  Accordingly, prosecutors adduce evidence at sentencing which has neither been confronted nor admitted to support the Government’s sentencing recommendation.  This practice raises serious constitutional concerns because it ignores both the original understanding of the Confrontation Clause and Supreme Court authority.  Neither a federal statute (like 18 U.S.C. § 3553(a)) nor the United States Sentencing Commission’s Guidelines can authorize (or excuse) a Sixth Amendment violation.  A detailed historical review of the Confrontation Clause and related Supreme Court precedent confirms that the prevalent use of uncharged and dismissed conduct to enhance a sentence violates the Sixth Amendment’s Confrontation Clause.  As a result, 18 U.S.C. § 3553 and 18 U.S.C. § 3661 are unconstitutional to the extent that they conflict with the Sixth Amendment, and sentencing judges should decline to consider uncharged or dismissed conduct not subject to the protections the Sixth Amendment provides.

Could Prez Trump's new EO on overcriminalization prompt the US Sentencing Commission to review strict liability guideline enhancements?

As flagged in this post, just a couple of days before he left the Oval Office back in 2021, Prez Trump issued an exective order titled "Executive Order on Protecting Americans From Overcriminalization Through Regulatory Reform."  I am pretty sure that EO got quickly repealed in the early days of the Biden Administration.  But with a second stint in the Oval Office, Prez Trump this time prioritized this important criminal justice reform topic with this new EO dated May 9, 2025 titled "Fighting Overcriminalization In Federal Regulations." 

Because I have long been troubled by federal "overcriminalization," and because I have work with various public policy groups on advocating for various mens rea reforms, I am quite pleased to see this new EO.  And, as the title of this post suggests, I am keen to speculate about whether and how the EO could have some sentencing echoes.  The EO merits reading in full, but here are a few excerpts catching my attention:

Many ... regulatory crimes are “strict liability” offenses, meaning that citizens need not have a guilty mental state to be convicted of a crime....

This status quo is absurd and unjust.  It allows the executive branch to write the law, in addition to executing it.  That situation can lend itself to abuse and weaponization by providing Government officials tools to target unwitting individuals....

The purpose of this order is to ease the regulatory burden on everyday Americans and ensure no American is transformed into a criminal for violating a regulation they have no reason to know exists....

Strict liability offenses are “generally disfavored.”  United States v. United States Gypsum, Co., 438 U.S. 422, 438 (1978).  Where enforcement is appropriate, agencies should consider civil rather than criminal enforcement of strict liability regulatory offenses or, if appropriate and consistent with due process and the right to jury trial, see Jarkesy v. Securities and Exchange Commission, 603 U.S. 109 (2024), administrative enforcement.

Agencies promulgating regulations potentially subject to criminal enforcement should explicitly describe the conduct subject to criminal enforcement, the authorizing statutes, and the mens rea standard applicable to those offenses....

Strict liability criminal regulatory offenses are disfavored.  Any proposed or final criminal regulatory offense that includes a strict liability mens rea for the offense shall be treated as a “significant regulatory action”...

Because this EO only formally applies only to "a Federal regulation that is enforceable by a criminal penalty" and adresses only executive agencies, the US Sentencing Commission and its federal sentencing guidelines are not subject to any direct mandates via this EO.  But given that the Trump Administration calls it "absurb and unjust" to prosecute persons when underlying conduct may not evince a guilty mental state, it arguably ought also be seen as  problematic for severe sentencing enhancements to be based on astrict liability and entirely untethered from proven criminal intent.  Yet many of the most severe guideline sentencing enhancements — particularly those related to "loss" amounts, to drug type/quantity, and to other quantitative metrics — are "strict liability" enhancements, meaning that persons need not have any culpable mental state connected to specific guideline factors that can double or triple or quadruple the recommended guideline sentence.

Especially give that criminal regulatory offenses will be subject to punishment under the federal sentencing guidelines, I believe this EO ought to, at the very least, prompt the Commission to review all of its existing to make sure mens rea issues are given full concern and due respect at sentencing.  Of course, given that judge have always been required to consider "the nature and circumstances of the offense" and to "provide just punishment" under 18 U.S.C. § 3553(a), mens rea concerns have been a viable element of sentencing arguments and decision-making.  But, the same could be said for the charging discretion of federal prosecutors before this EO, and yet the Trump Administration is here demanding our justice system give more express and focused attention to any "putative defendant’s general awareness of the unlawfulness of his conduct as well as his knowledge or lack thereof of the regulation at issue."  I hope the USSC might, perhaps spurred by both the letter and the spirit of this EO, consider review and revision of its guidelines to minimize the risk of "absurd and unjust" levels of punishment based on strict liability sentencing enhancements.

"The Nuances of Prosecutorial Nonenforcement"

The title of this post is the title of this new article authored by Carissa Byrne Hessick and Meighan Parsh now available via SSRN. Here is its abstract:

The academic literature on prosecutors is divided: Some commentors believe that prosecutors should use their ability to decline to bring charges more aggressively, decreasing the overall number of criminal cases and helping to address the problem of mass incarceration.  Others believe that broad prosecutorial nonenforcement poses significant risks to our constitutional order and to public safety.  While the visibility of this debate has increased-spilling over from the pages of law reviews into political campaigns and headlines-the terms of that debate are, at times, unclear. Prosecutorial nonenforcement is a multi-faceted phenomenon, and discussions about its costs and benefits can obscure necessary tradeoffs between important values and principles.

This Article brings much needed nuance to the debate surrounding prosecutorial nonenforcement.  It provides a three-tiered taxonomy of nonenforcement decisions, identifying different nonenforcement methods, justifications, and decisionmakers. It also explains how different features of nonenforcement implicate conflicting values, such as individualization and consistency.  By providing this taxonomy and highlighting these tradeoffs, the Article seeks to improve the terms of the debate surrounding prosecutorial nonenforcement.  In so doing, it demonstrates that, although abstract discussions about nonenforcement can be valuable, they are no substitute for an assessment of the substance of those decisions.

Latest data on death rows in US (at roughly start of second Trump Administration)

Via this post by Robert Dunham at The DP3 Substack, I see that the Legal Defense Fund has released its latest accounting of persons on death rows in the US, Death Row USA, Spring 2025.  The LDF document, which runs 60 pages, has lots and lots of death row data and other information, and the substack post provides various highlights.  Here is how that post start (with my emphasis added at the end): 

The number of prisoners on death rows or facing capital retrials or resentencing proceedings across the United States has fallen to 2,067 as of April 1, 2025, according to the Spring 2025 Death Row U.S.A. (“DRUSA”), a quarterly census of the U.S. death row population by the Legal Defense Fund.  The new total represents a decline of 25 prisoners (1.2%) from the 2,092 people whom LDF reported faced active death sentences or possible resentencing at the start of the year.

Historically, the extent of the decline in the national death-row population in any single quarter does not predict what will happen the coming months, although the long-term trends are clear. The nation’s death-row population declined by only 0.6% (14 people) in the first quarter of 2024, but ended the year with 149 fewer death-row prisoners, the largest death-row population decline in more than two decades and the highest annual percentage decline (6.6%) in nearly a half-century. LDF’s Spring 2025 death-row census, released on May 2, reported 160 fewer individuals on death-row or facing continuing jeopardy of capital resentencing than in its Spring 2024 census, marking a one-year decline of 7.2%.  LDF has reported a decline in the number of people on death row in the U.S. in every quarterly DRUSA census since January 2010 and in each of the last 24 years.  Overall, the U.S. death-row population has fallen 44.5% since its peak of 3,726 at the close of 2000.

As the title of this post hints, I wonder if the consistent and long-running decline in the number of persons on US death rows might be disrupted in coming years.  As noted in this post, Prez Trump issued this Executive Order on his first day in office titled “Restoring the Death Penalty and Protecting Public Safety,” which contains multiple provisions that aspire to "ensure that the laws that authorize capital punishment are respected and faithfully implemented."  Though there are legal and practical limits to how the federal executive branch can directly impact the number of capital charges and sentences (especially in state systems), this EO strikes me as one marker of what I perceive to be a (small?) "vibe shift" in the adminitration of capital punishment that could echo in various ways through death rows.

Though a "vibe shift" in the adminitration of capital punishment may not be tangible (or even real) with regard to the number of death sentences in the US, there already seems to be an increase in the number of executions in the US since Prez Trump took office.  Specifically, there were 15 executions in various states in roughly a 90-day perioud after Prez Trump returned to office, and it has been many years since the US has averaged more than an execution per week for such an extended period.  Of course, lots of factors with nothing to do with the President influence executon dates and rates, but I still find these various new metrics notable.

En banc Ninth Circuit broadly rejects Second Amendment challenge to federal felon-in-possession prohibition

Yesterday the Ninth Circuit via a lengthy en banc ruling in US v. Duarte, No. 22-50048 (9th Cir. May 9, 2025) (available here), rejected a Second Amendment challenge to the federal criminal law, 18 USC § 922(g)(1), that makes it a serious felony for a person with the equivalent of a prior felony to possess a firearm. The full opinion with the opinion for the court and three additional opinions runs 127 pages. Helpfully, the start of the main opinion provides a useful summary of the state of lower-court law on this oft-litigated issue:

Duarte argues that § 922(g)(1) is unconstitutional as applied to non-violent felons like him under Bruen’s analytical framework.  While this is an issue of first impression for our court, we do not write on a blank slate, as Courts of Appeals across the nation have been wrestling with fresh challenges to the viability of § 922(g)(1) in the wake of Bruen.  Four circuits have upheld the categorical application of § 922(g)(1) to all felons. See United States v. Hunt, 123 F.4th 697, 707–08 (4th Cir. 2024) (rejecting an as-applied challenge on a categorical basis); United States v. Jackson, 110 F.4th 1120, 1129 (8th Cir. 2024) (same); Vincent v. Bondi, 127 F.4th 1263, 1265–66 (10th Cir. 2025) (rejecting an as-applied challenge because neither Bruen nor United States v. Rahimi, 602 U.S. 680 (2024), abrogated circuit precedent foreclosing such a challenge); United States v. Dubois, 94 F.4th 1284, 1293 (11th Cir. 2024), cert. granted, judgment vacated, No. 24-5744, 2025 WL 76413 (U.S. Jan. 13, 2025) (holding that Bruen did not abrogate circuit precedent foreclosing such challenges).

Other circuits have rejected as-applied challenges, but have left open the possibility that § 922(g)(1) might be unconstitutional as applied to at least some felons.  See United States v. Diaz, 116 F.4th 458, 471 (5th Cir. 2024) (rejecting an as-applied challenge because the defendant’s underlying felony was sufficiently similar to a death-eligible felony at the founding); United States v. Williams, 113 F.4th 637, 661–62 (6th Cir. 2024) (rejecting an as-applied challenge because the defendant’s criminal record sufficiently showed that he was dangerous enough to warrant disarmament). By contrast, the Third Circuit has held that § 922(g)(1) is unconstitutional as applied to a felon who was convicted of making a false statement to secure food stamps. See Range v. Att’y Gen., 124 F.4th 218, 222–23 (3d Cir. 2024) (en banc).  And, as of the date of this writing, the First and Second Circuits have declined to address constitutional challenges to § 922(g)(1) on the merits, while the Seventh Circuit has yet to definitively resolve an as-applied challenge.  See United States v. Langston, 110 F.4th 408, 419–20 (1st Cir. 2024) (rejecting an as-applied challenge because there was no “plain” error); United States v. Caves, No. 23-6176-CR, 2024 WL 5220649, at *1 (2d Cir. Dec. 26, 2024) (same); United States v. Gay, 98 F.4th 843, 846–47 (7th Cir. 2024) (assuming for the sake of argument that there is some room for an as-applied challenge, but rejecting the defendant’s specific as-applied challenge because his prior felonies included aggravated battery of a peace officer and possession of a weapon while in prison).

Today, we align ourselves with the Fourth, Eighth, Tenth and Eleventh Circuits and hold that § 922(g)(1) is not unconstitutional as applied to non-violent felons like Steven Duarte.

The Supreme Court has so far dodged this issue, which has been broadly litigated since Heller was decided back in 2008 and which has generated considerably more lower court division since Bruen and Rahimi reoriented Second Amendment jurisprudence.  WIth this latest ruling in the largest circuit, and with the Justice Deparment's new efforts to restore gun rights to more persons with criminal convictions (noted here), I suspect the Justices might see even more reasons to avoid taking up this issue in the days ahead.

A few of many prior related posts:

• Noting just some of the continuing litigation and uncertainty about gun rights after Rahimi 
• After Rahimi remand, Eighth Circuit panel again rejects Second Amendment challenge to federal felon in possession charge
• Sixth Circuit panel rules federal prohibition of felon gun possession is "constitutional on its face and as applied to dangerous people"
• Third Circuit panel states "Second Amendment’s touchstone is dangerousness" when remanding rights claim by person with multiple gambling-related offenses
• New report details that persons with felony records have brought most gun litigation after Bruen changed Second Amendment law 
• Notable new accounting of post-Bruen Second Amendment claims brought by 1,450 criminal defendants 
• What kind of Second Amendment case will be next for SCOTUS after Bruen and Rahimi?

Brief initial reflections on the late Justice David Souter's sentencing law legacy

As reported in this extensive New York Times piece authored by Linda Greenhouse, "David H. Souter, a New Hampshire Republican who was named to the Supreme Court by President George H.W. Bush and who over 19 years on that bench became a mainstay of the court’s shrinking liberal wing, died on Thursday at his home in Concord, N.H.  He was 85."  The article provides a lovely accounting of the man as well as his political and legal background and legacy. 

In part because Justice Souter did not author all that many major sentencing opinions, his sentencing legacy arguably is defined by his provision of key fifth votes in Sixth Amendment cases like Apprendi and Blakely/Booker and Eighth Amendment cases like Roper and Kennedy.  And, not to be overlooked, Justice Souter authored the opinion for the Court in Jones v. US, 526 U.S. 227 (1999), a statutory interpretation case that ultimately provided the conceptual underpinings (and a uniquely composed majority) that resulted in the Apprendi revolution in 2000.   In particular, footnote 6 of the Jones opinion for the Court authored by Justice Souter provided this textured discussion of what would become constitutional law a year later:

FN 6 The dissent repeatedly chides us for failing to state precisely enough the principle animating our view that the carjacking statute, as construed by the Government, may violate the Constitution.  See post, at 1, 14, 17.  The preceding paragraph in the text expresses that principle plainly enough, and we re-state it here: under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.  Because our prior cases suggest rather than establish this principle, our concern about the Government’s reading of the statute rises only to the level of doubt, not certainty. Contrary to the dissent’s suggestion, the constitutional proposition that drives our concern in no way “call[s] into question the principle that the definition of the elements of a criminal offense is entrusted to the legislature.” Post, at 16 (internal quotation marks omitted).  The constitutional guarantees that give rise to our concern in no way restrict the ability of legislatures to identify the conduct they wish characterize as criminal or to define the facts whose proof is essential to the establishment of criminal liability.  The constitutional safeguards that figure in our analysis concern not the identity of the elements defining criminal liability but only the required procedures for finding the facts that determine the maximum permissible punishment; these are the safeguards going to the formality of notice, the identity of the factfinder, and the burden of proof.

There are a few other notable separate opinions by Justice Souter in sentencing cases like Koon v. US and Rita v. US.  Indeed, as a lone dissenter in Rita, I was especially drawn to his vision of vindicating Fifth and Sixth Amendment principles in federal sentencing:

Taking the Booker remedy (of discretionary Guidelines) as a given, however, the way to avoid further risk to Apprendi and the jury right is to hold that a discretionary within-Guidelines sentence carries no presumption of reasonableness. Only if sentencing decisions are reviewed according to the same standard of reasonableness whether or not they fall within the Guidelines range will district courts be assured that the entire sentencing range set by statute is available to them.  See Booker, supra, at 263 (calling for a reasonableness standard “across the board”). And only then will they stop replicating the unconstitutional system by imposing appeal-proof sentences within the Guidelines ranges determined by facts found by them alone.

With my Booker-addled brain, I suspect I am overlooking this morning some other sentencing work by Justice Souter that merits mention when taking stock of his legacy.  I would welcome comments that provide additional accounts of his sentencing legacy.

After withdrawal as US Attorney nomination, Prez Trump states he will have Ed Martin serve as DOJ's Pardon Attorney

As reported in this Reuters article, Prez Trump is changing path with a new nominee for the top federal prosecutor in Washington DC: "President Donald Trump on Thursday appointed Fox News host Jeanine Pirro to serve as Washington, D.C.'s interim U.S. attorney, after Ed Martin, the current interim job holder and Trump's first pick to hold the job on a permanent basis, failed to garner enough support to advance in the U.S. Senate." Here is more, including a notable clemency element:

Trump's announcement came just hours after he told reporters during a White House event that he would be withdrawing Martin's nomination due to a lack of support in the U.S. Senate for it to proceed. "I was disappointed. A lot of people were disappointed, but that's the way it works sometimes," Trump said. In a later post on Truth Social, Trump said Martin would move to a new role in the Justice Department.

"Ed Martin has done an AMAZING job as interim U.S. Attorney, and will be moving to the Department of Justice as the new Director of the Weaponization Working Group, Associate Deputy Attorney General, and Pardon Attorney," Trump wrote. "In these highly important roles, Ed will make sure we finally investigate the Weaponization of our Government under the Biden Regime, and provide much needed Justice for its victims. Congratulations Ed!"...

Republican Senator Thom Tillis of North Carolina, who sits on the committee, appeared to deal Martin's nomination a fatal blow when he told reporters at the Capitol that he could not support him because of Martin's views about the January 6, 2021, attack at the U.S. Capitol by Trump's supporters.

Notably, none of these new roles for Ed Martin, including as DOJ's Pardon Attorney, requires Senate confirmation.  And, as I have discussed in a variety of recent posts, it is unclear what role the Pardon Attorney will play when Prez Trump has seem quite comfortable using his clemency pen without DOJ input (and when he also has Alice Marie Johnson serving as "pardon czar").  Whatever else this Pardon Attorney appointment might mean, I doubt this will lead to any decrease in the going rate some lawyers are charging for pursuing clemency these days.  

A few recent related posts:

• Prez Trump grants 14 commutations and blanket pardons to all other Jan 6 defendants 
• Prez Trump formally announces Alice Marie Johnson will be his "pardon czar" 
• Wide praise, but uncertain plans, for Prez Trump's new pardon czar
• Not long after appointment of "pardon czar," Trump Administration fires Justice Department's Pardon Attorney
• Prez Trump continuing to make robust use of his clemency pen (for white-collar offenders) 
• Prez Trump keeps using his clemency pen, building quite the clemency record
• "Lawyers Are Quoting $1 Million in Fees to Get Pardons to Trump"

"Equality in Sentencing Mitigation"

The title of this post is the title of this new article now available via SSRN authored by John B. Meixner Jr. Here is its abstract:

As guilty-plea rates have skyrocketed, sentencing has become an increasingly important part of criminal procedure. With judges often wielding significant discretion at sentencing, a key question is how judges interpret mitigation: evidence about the defendant’s background or the case that supports a reduced sentence.  Past empirical research — both experimental and in real-world cases — indicates that mitigation plays an important role in determining sentences.  But does mitigation help everyone, or does it reinforce inequalities that frequently infect other areas of criminal procedure?  Do low-income Black defendants with appointed counsel benefit from sentencing mitigation as much as wealthier white defendants with private attorneys?  Do certain kinds of judges disregard mitigation, leading to longer sentences for those defendants unlucky enough to be assigned to their dockets?

In this Article, I present new data that shed light on these questions for the first time.  I do this by leveraging two unique datasets.  First, by systematically examining over 350 federal sentencing memoranda and coding them for the length of arguments devoted to various categories of mitigation (such as arguments about defendants’ good character, traumatic upbringing, or history of mental or physical illness), I demonstrate that sentencing mitigation is a central predictor of sentencing outcomes.  Second, by combining my hand-coded mitigation data with previously unexplored data from the U.S. Sentencing Commission, I am able to assess the extent to which demographic characteristics — such as race, politics, and legal representation — interact with sentencing mitigation.

The results are encouraging.  For the most part, I do not find evidence that race or politics have a substantial impact on the effectiveness of mitigation.  In that way, mitigation may function as a sort of rising tide that lifts all boats, aiding defendants regardless of characteristics that may result in inequality in other parts of criminal procedure.  And mitigation’s impact is substantial: an additional 1,000 words of mitigation about a defendant’s personal circumstances predicts an approximately 13% reduction in sentence.  At the same time, mitigation is not a panacea: I find that defendants still face a large luck-of-the-draw element as individual attorneys vary strongly in the effectiveness of their presentations.  Normatively, I argue that we should encourage more effective presentation of mitigation by streamlining rules about how judges may consider it, by increasing access for detained defendants, and by increasing support for attorneys who need help in presenting it.

"Punishing Violence"

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

The American criminal justice system is known to dole out the harshest punishments in the world.  It is infamous for putting people in prison for longer and for a wider variety of crimes.  But what is lost on most scholars and policy makers is that the United States punishes only a small amount of the total serious crime that occurs in the country — including violent crime.  Approximately 20 million serious crimes occur in America each year, but only about half of these are reported to police.  And of the fraction reported, the police make arrests for only an average of 20% of all serious crimes, and only 10% result in a conviction.

The problem is not only that those who are arrested are punished severely, but also that there is a selection error in who and what crimes we select to punish.  First, the justice system increasingly focuses on incarcerating those who commit minor nonviolent crimes, rather than pursuing difficult-to-solve violent crimes.  This creates a serious gap of accountability for the most violent criminals.  Second, American incarceration suffers from a selection error in that it overwhelmingly selects for punishment individuals from low-income backgrounds and people of color.  Not only is this problematic through a disparity lens but also with crime control and recidivism, as studies show that low certainty of punishment leads to higher rates of crime.

There are two approaches to rectify this largely unrecognized dilemma.  One option is to increase incarceration rates, focusing on the populations who are currently not being targeted and are getting away with crime.  Higher accountability for crime will lead to increased certainty of punishment and less crime and incongruity as a more representative sample is incarcerated.  A second possibility, considered more closely by this Article, is relying on alternative accountability models that could improve certainty of punishment without relying exclusively on incarceration, thereby avoiding the societal harms that accompany incarceration.  This approach could address the dangerous selection error that tends to neglect violent crime by creating accountability outside the carceral system and strengthening police-community relationships.

Prison Policy Initiative provides helpful analysis of new BJS data on prisons and pregnancies

Emily Widra and Emmett Sanders at the Prison Policy Initiative have produced this notable briefing digging into this new Bureau of Justice Statistics publication titled "Maternal Healthcare and Pregnancy Prevalence and Outcomes in Prisons, 2023."  This briefing's title provides its nuanced themes: "New data on pregnancy prevalence, outcomes, and programs in prisons are welcome additions, but raise new questions."  Here is part of the introduction of the briefing, with links from the original:

A new Bureau of Justice Statistics report offers updated data on pregnancy among people in state and federal prisons. This important new dataset includes the prevalence of pregnancy among incarcerated people, pregnancy outcomes, and some limited data on the types of services, medical care, and support offered to incarcerated pregnant people. The findings from Maternal Healthcare and Pregnancy Prevalence and Outcomes in Prisons, 2023 are based on data collected for the first time in 2024 as a supplement to the annual National Prisoner Statistics survey. While this report is a welcome contribution to a shamefully understudied experience during incarceration, the data it provides raises almost as many questions as it answers.

Women’s incarceration has grown at twice the pace of men’s incarceration in recent decades but there is often too little data to explain this growth or to elaborate the specific effects incarceration has on women and their health, including their experience of pregnancy....

Yet the data raises a series of new questions. There are unexplained differences in the prevalence of pregnancy behind bars compared to the PIPS report, as well as a lack of basic data on the outcomes of live births, and a failure to report how often pregnancy-related services and accommodations are actually used. The report also helpfully touches on services like prison nursery programs; however, crucial details about their implementation are left out — a gap we attempt to fill in this briefing using our own research. This new report is a step in the right direction, but much more work needs to be done to provide an accurate and useful portrait of pregnancy in prison.

"Lawyers Are Quoting $1 Million in Fees to Get Pardons to Trump"

The title of this post is the headline of this new Bloomberg Law article, which is worth reading in full.  Here are some extended excerpts:

The president “is effectively and responsibly using his constitutional authority,” White House spokesman Harrison Fields said. “Over the past four years, we have witnessed the weaponization of the justice system against the president’s allies. The president is committed to righting those wrongs and ending lawfare.” The Justice Department is “committed to timely and carefully reviewing” all clemency applications and making unbiased, consistent recommendations to the president, a spokeswoman said in a statement.

President Joe Biden set a record for granting clemency during his term, and was broadly criticized by Republicans and some Democrats for protecting his family members and allies. Trump has already shown a willingness to use the clemency power more regularly, with a soft spot for displays of loyalty and gripes about prosecutorial overreach. In his second term, the president has overseen a breakdown in the traditional vetting process for deciding who gets relief and supercharged a pardon economy unlike anything seen before.

Powerful people in business and finance are rushing pitches and stepping up lobbying, catering their appeals to Trump and hiring lawyers with connections to the administration. These defendants with means are spending big for a chance to clear their names, at least in official records if not in public perception. Interviews with about two dozen lawyers and pardon hopefuls, many of whom asked not to be identified discussing plans that weren’t public, have pulled back the curtain on the clemency process under Trump. Some outlined plans to spend at least tens of thousands of dollars on attorneys, lobbyists and consultants, while others say the costs will reach well north of $1 million to put cases together and get them in front of the White House.

“There’s a huge level of interest,” said Margaret Love , who served as the US pardon attorney in the 1990s and now specializes in clemency in private practice. “People think Trump is going to do something for them.”

Presidents from both parties have long used their authority to circumvent official process and dole out pardons to friends and supporters. The constitution puts almost no limits on the practice, though leaders typically wait until the end of their tenure to award clemency. Trump has announced clemency grants on a dozen occasions since he took office three months ago....

“It seems like ordinary people who don’t have the resources to hire a lobbyist or well-connected lawyer and don’t have political connections and access to the White House front door are not being considered for clemency at all,” said Liz Oyer , who was the Justice Department ’s top pardon attorney for three years. She said she was fired in March after refusing to recommend that Hollywood actor and Trump ally Mel Gibson have his gun rights restored despite a 2011 domestic violence conviction. Gibson’s gun rights were restored in April.

Fields, the White House spokesman, said Trump would work with the administration’s pardon czar, Alice Marie Johnson, to “continue to provide justice and redemption to countless deserving Americans.”

Some prior recent related posts covering only a portion of Prez Trump's clemency actions:

• Prez Trump grants 14 commutations and blanket pardons to all other Jan 6 defendants 
• Prez Trump formally announces Alice Marie Johnson will be his "pardon czar" 
• Wide praise, but uncertain plans, for Prez Trump's new pardon czar
• Prez Trump continuing to make robust use of his clemency pen (for white-collar offenders) 
• Prez Trump keeps using his clemency pen, building quite the clemency record

Family of man killed during a road-rage incident uses AI to enable deceased to give victim statement at sentencing hearing

This local story out of Arizona seems like just one glimpse into the brave new digital world that all lawyers and legal institutions need to be thinking about.  The article is headlined "Family uses AI to create video for deadly Chandler road rage victim's own impact statement," and here are excerpts:

Christopher Pelkey was killed in a road rage incident in Chandler in 2021, but last month, artificial intelligence brought him back to life during his killer’s sentencing hearing. It was the first time in Arizona judicial history — and possibly nationwide — that AI has been used to create a deceased victim’s own impact statement.

Pelkey’s sister and brother-in-law used the technology to recreate his image and voice likeness to “talk” to the courtroom about his life and the day he met Gabriel Paul Horcasitas, who shot him during a confrontation near Gilbert and Germann roads. “In another life, we probably could have been friends,” the AI creation of the 37-year-old Army veteran said, addressing Horcasitas. “I believe in forgiveness…”

The AI video also included real video clips from videos taken while he was alive, along with some of his personality and humor, while showing a real photo he once took with an "old age" filter. "This is the best I can ever give you of what I would have looked like if I got the chance to grow old," the AI version of Pelkey said. "Remember, getting old is a gift that not everybody has, so embrace it and stop worrying about those wrinkles."...

The state asked for a 9.5-year sentence, and the judge ended up giving Horcasitas 10.5 years for manslaughter, after being so moved by the powerful video, family says.  The judge even referred to the video in his closing sentencing statements.

The local story also has a link to a three-minute video segment about the proceedings (along with a clip of the AI victim statement) that is well worth watching.

Interesting times.

"Look What You Made Me Do"

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

Who’s to blame for crime?  Individuals who commit crime or a society that has failed to keep those individuals safe and let them suffer severe economic deprivation?  Both.  But American criminal legal processes stifle that complex answer. Instead they coerce defendants into expressing a profoundly simple narrative: crime is solely individual choice to do wrong.  This forced narrative finds defendants during a plea colloquy standing up in court saying that they are pleading guilty because they are guilty and for no other reason.  A defendant who goes off-script to tell a story about childhood trauma or being a victim of repeated violence runs the risk that the judge will refuse to accept the guilty plea and punish them after trial in sentencing for refusing to say that they alone are to blame.  That same narrative of individual choice to do wrong plays out throughout the criminal process.

Coercing defendants to tell a story that is not their own further disenfranchises defendants and creates a damaged public understanding of crime. It hides our own societal failings and pretends that threating ever-harsher punishment will keep us safe — prioritizing a cheap illusion of safety over actual safety.  If crime is driven at least in significant part by unaddressed trauma and poverty, better mental health care and an expanded social safety net could better promote public safety than increased threats of cages — a core abolitionist claim.  And while prisons keep some of us temporarily safe by incapacitating those convicted of crimes, they are sites of great violence and little safety — a dynamic that then undermines safety outside the prison walls.  Instead of figuring out how to be safer we simply pretend that we’re doing our level best by mass incarcerating our citizenry and pressuring defendants to embrace our narrative while we stifle counternarratives.

The Sentencing Project releases new report "Justice Delayed: The Growing Wait for Parole After a Life Sentence"

The Sentencing Project has today released to this new report titled "Justice Delayed: The Growing Wait for Parole After a Life Sentence," and that title foreshadows its findings.  Here is the start of the 24-page report's executive summary:

The number of people sentenced to life in prison has drastically increased over the last five decades.  Of the 194,803 people serving life sentences in 2024, nearly half of them, 97,160 people, were serving parole-eligible sentences. A parole-eligible life sentence is also referred to as life with parole (LWP) or life with the possibility of parole (LWPoP). Parole is the conditional release of an incarcerated individual after spending a portion of their sentence in prison.  Its purpose at inception was to serve as a bridge between an incarcerated person and their community, balancing the needs of the individual and the needs of the community, with the aim toward reintegration.

To be eligible for parole, a person sentenced to life must serve a required minimum sentence or reach their “parole eligibility date.”  The minimum parole eligibility date is the earliest point at which an incarcerated individual may be considered for parole, minus any time credits earned.  Once the required minimum sentence is served, these individuals may re-enter society upon the approval of a paroling authority, most often a parole board.  But as this report shows, over the past 50 years legislators across the country have raised the minimum sentence required for parole eligibility, delaying release of millions and significantly transforming the meaning of a life sentence.

In addition, governors have appointed parole commissioners who are reluctant to grant parole.  As a result of both factors, newly paroled life-sentenced individuals have served longer prison terms than those in years past. Furthermore, even fewer people are receiving parole hearings in recent years as political, public, and media pressures to adopt more punitive practices continue to rise.  The result: increased prison terms and prolonged punishment.