Sentencing Law and Policy

Reviewing evolving execution methods in the states

Law360 has this lengthy new piece, headlined "La.'s First Nitrogen Execution Reflects Broader Method Shift," which discusses recent state execution method trends.  Here are a few excerpts:

Louisiana's adoption of the nitrogen gas method is part of a broader shift to alternatives to lethal injections, which have faced intense judicial scrutiny as well as a shortage of raw materials needed to carry them out, resulting in hiatuses in executions in several states. Overall, states with capital punishment have signaled an intention to restart their execution programs, some of which have stalled for years, and for some states this involves shifting to new methods.

In January 2024, Alabama became the first jurisdiction in the world to use nitrogen gas, and has since used it to execute four people. Mississippi and Oklahoma also allow for the method but have yet to use it.... On March 7, South Carolina executed Brad Sigmon, a man convicted of murder, by firing squad — the first time the state used that method. His execution marked the first time in 15 years such a method was used to kill a prisoner....

Sigmon's execution signaled an expansion of the use of firing squads, and other states might soon embrace it. Utah, Oklahoma, Mississippi, South Carolina and Idaho currently authorize the firing squad as an execution option.

Utah is the only state that has long allowed firing squads and has used it during the 20th century. Oklahoma and Mississippi added it as a backup method in the 2010s, while South Carolina legalized it in 2021 as a way to resume executions when drugs are unavailable. Idaho adopted it in 2023 for similar reasons.

In lengthy statements, Justices Alito and Gorsuch take issue with (modern, originalist?) Confrontation Clause jurisprudence

In the (decidedly non-originalist) opinion in Williams v. New York, 337 U.S. 241 (1949), the Supreme Court rejected arguments that a defendant had a right to confront witnesses whose testimony was used against him by a judge at sentencing.  The textual and historical basis for this ruling has never seemed especially solid, as evidenced by law review articles here and here.  And yet, courts continue to state and hold that "a sentencing court is ... not bound by the Confrontation Clause." US v. Raheem, No. 23-5324 (6th Cir. Feb. 12, 2025), even though 20+ years ago the Supreme Court recast Confrontation Clause jurispudence in originalist terms with its landmark ruling in Crawford v. Washington, 541 U.S. 36 (2004). 

I provide all this backstory to highlight why sentencing fans, and not just trial lawyers, ought to be intrigued by two extended statements, appearing at the end of today's Supreme Court order list, authored by Justices Alito and Gorsuch in conjunction with a denial of certiorari in Franklin v. New York.  Justice Alito's statement runs four pages and Justice Gorsuch's runs eight; both statements call for reconsideration of the originalist(?) jurisprudence that has developed since Crawford.  Here is how Justice Alito's statement concludes:

[A]s both JUSTICE GORSUCH and I recognize, the current state of our Confrontation Clause jurisprudence is unstable and badly in need of repair.  If we undertake that project, we should not limit our efforts to an attempt to shore up what may be a fundamentally unsound structure.

If we reconsider Crawford, as I think we should, the result might be a reaffirmation of Crawford or the adoption of an entirely different Confrontation Clause rule. But whatever the outcome might be, reconsideration is needed.

Intriguingly, Justice Alito's statement suggests he would be drawn to a more limited application of the Confrontation Clause as part of the "reconsideration"' that he says is "needed."  But Justice Gorsuch's statement concludes with a footnote seemingly pushing in the other direction: "reexamining the relevant history might well require us not only to “reaffir[m]” Crawford, as JUSTICE ALITO suggests, ante, at 4, but to broaden its protections."

Unsurprisingly, neither Justice speaks to sentencing issues in their statements, but their statements take me back to my Sentencing Matters Substack substack post a few months ago, "Initial musings on the Supreme Court’s originalist turn and sentencing issues."  In that post I noted that "many modern sentencing doctrines and practices seem still in tension with a robust originalist approach to the Sixth Amendment."  I do not expect these new statements to change this story.  Still, I think it quite important, quite telling and quite notable that at least two Justices are seemingly eager to reconsider a (problematic?) criminal justice jurisprudence that has already taken an originalist turn while there are so many other (problematic!) criminal justice doctrines that have not yet been given much, if any, serious originalist attention.

Sound advice for assessing encouraging crime data at the start of 2025

In this post last month, I flagged lots of encouraging data from a number of big cities about homicide trends at the start of 2025.  That post cautioned about drawing strong conclusions or having firm expectations based on "early" crime data, but I still found the numbers heartening.  Writing in the same vein, Jeff_Asher has this new post at Jeff-alytics that mixes caution with optimism under the full title: "Take Early Crime Data Seriously But Not Literally; It's too early and the reporting is too flawed to reach conclusions just yet!".  I recommend the full post, and here are excerpts (with links from the original):

The first update to the Real-Time Crime Index was released last week covering January 2025. This update showed a 15 percent drop in murder, a 13 percent decline in violent crime, and a 15 percent decline in property crime through January 2025 relative to January 2024 in a sample of more than 340 big city and county agencies. More than 92 million Americans are represented in this month’s sample, our biggest sample by population yet....

The decline reported in the RTCI sample matches the eye test as big cities like New York, Chicago, Philadelphia, St Louis, New Orleans, Denver, and Los Angeles are all reporting large declines in nearly every category of crime so far in 2025.

That said, there are several reasons why it’s probably a bit too early to draw any definitive conclusions about where crime is headed nationally in 2025.... My personal take on the first month of data is that crime, including murder, is down a lot though it will take some time to understand just how much. The RTCI is useful for understanding that trend though the usefulness will only increase as the year goes on. If the February data shows the same pattern then we can start more seriously thinking about the nation's crime trends for 2025.

I highly encourage folks to read the full Jeff-alytics post to review the "several reasons" not to assume too much about what the eary 2025 crime data might mean for all of 2025. That said, I still find myself getting quite hopeful about the early trends.

"Public support for universal second look sentencing, a research note"

The title of this post is the title of this notable new article from multiple authors just published in the journal Criminology.  Here is its abstract:

Based on a 2023 national YouGov survey (N = 800), we explored public support for universal second look sentencing — the view that all incarcerated individuals, not just those who committed their crimes before they were age 25, should be eligible to have lengthy sentences revisited by judges after serving 15 to 20 years in prison.  A majority of Americans supported a universal policy, with only 1 in 5 respondents opposed.  Multivariate analyses showed that redeemability is not static but dynamic. It can be earned if incarcerated people signal their reformation by completing rehabilitation programs and receiving a positive recommendation from the warden. Support from the victim (or their family) also matters.  Given the public's endorsement, second look sentencing may be a viable policy to address mass incarceration and the problem of extreme prison terms.

Might other federal criminal prosecutions decline significantly with increased focus on immigration enforcement?

The question in the title of this post is prompted by this new Reuters article headlined "Exclusive: Thousands of agents diverted to Trump immigration crackdown." Here are a few excerpts from a lengthy article:

Federal agents who usually hunt down child abusers are now cracking down on immigrants who live in the U.S. illegally.  Homeland Security investigators who specialize in money laundering are raiding restaurants and other small businesses looking for immigrants who aren’t authorized to work.  Agents who pursue drug traffickers and tax fraud are being reassigned to enforce immigration law.

As U.S. President Donald Trump pledges to deport “millions and millions” of “criminal aliens,” thousands of federal law enforcement officials from multiple agencies are being enlisted to take on new work as immigration enforcers, pulling crime-fighting resources away on other areas — from drug trafficking and terrorism to sexual abuse and fraud....

This account of Trump’s push to reorganize federal law enforcement — the most significant since the September 11, 2001, terrorist attacks — is based on interviews with more than 20 current and former federal agents, attorneys and other federal officials.... "I do not recall ever seeing this wide a spectrum of federal government resources all being turned toward immigration enforcement," said Theresa Cardinal Brown, a former Homeland Security official who has served in both Republican and Democratic administrations.  "When you're telling agencies to stop what you've been doing and do this now, whatever else they were doing takes a back seat."...

Before this year, ATF had played almost no role in immigration enforcement.  It typically investigated firearms offenses, bombings, arson and illicit shipments of alcohol and tobacco.  But since Trump’s inauguration, about 80% of its roughly 2,500 agents have been ordered to take on at least some immigration enforcement tasks, two officials familiar with ATF's operations said.  The ATF agents are being used largely as “fugitive hunters” to find migrants living in the U.S. illegally, one of the officials said.

The DEA, whose roughly 10,000 staff have led the nation’s efforts to battle drug cartels, has shifted about a quarter of its work to immigration operations, said a former official briefed by current DEA leaders on the changes.  Two other former officials described the commitment as “substantial” but did not know precisely how much work shifted....

On the second day of Trump’s administration, a top Justice Department official, Emil Bove, told federal prosecutors in a memo that they should “take all steps necessary” to prosecute illegal immigrants for crimes in the U.S. In the memo, Bove called for increasing the number of immigration prosecutions, and said any cases that are declined must be urgently reported to the Justice Department.

As a result, federal prosecutors, who typically handle a variety of crimes, have been inundated with immigration cases, two of the sources said.  In San Diego, the number of people charged in federal court in February with felony immigration crimes more than quadrupled compared to the previous year, a Reuters examination of federal court records found.  The number of people charged with felony drug crimes dropped slightly over the same period.  In Detroit — where immigration prosecutions have been rare — the number of people charged with immigration offenses rose from two in February 2024 to 19 last month, Reuters found.

Just this past week, I posted here the Bureau of Justice Statistics' publication "Federal Justice Statistics, 2023," and the first three figures in that publication provide an interesting and helpful accounting of federal criminal caseloads over the past decade and more.  Figures 2 and 3 especially highlight that there is not an inherent "zero-sum" reality to the number of criminal immigration cases and other criminal cases in the federal system.  So it is certainly possible that immigration enforcement actions can go up significantly without other federal criminal cases going down significantly.

That all said, there is a reasonable basis to predict that at least two major categories of federal criminal case processing, namely firearm and fraud offenses, may be relatively low priorities in the Trump Administration.  (Also, I suspect some of the post-Bruen/Rahimi Second Amendment litigation might have some impact on some federal firearm prohibition enforcement caseloads.)  As for drug cases, I am not quite sure what to expect or predict with caseloads: fentanyl prosecutions seem a likely priority, but meth and cocaine cases have made up the bulk of the federal drug docket for the last decade (though the number of fentanyl cases have increased the most in recent years). 

Long story short, federal criminal justice and sentencing fans have a lot to watch in this space (and in lots of other spaces). 

Supreme Court, by 7-2 vote, rules that an omission can involve the “use of physical force” in Delligatti

This morning the US Supreme Court handed down an opinion in favor of the government on a statutory issue in Delligatti v. US, No. 23–825 (S. Ct. March 21, 2025) (available here).  The opinion for the Court, authored by Justice Thomas, begins and ends this way:

Title 18 U.S.C. § 924(c)(3)(A) defines a “crime of violence” to include a felony that involves the “use of physical force” against another person. In the context of a closely related statute, we have held that “the knowing or intentional causation of bodily injury necessarily involves the use of physical force.” United States v. Castleman, 572 U. S. 157, 169 (2014). This case asks whether that principle extends to § 924(c)(3)(A) and, if so, whether the principle holds in cases where an offender causes bodily injury by omission rather than action. We answer both questions in the affirmative....

The knowing or intentional causation of injury or death, whether by act or omission, necessarily involves the use of physical force against another person. The judgment of the Court of Appeals for the Second Circuit is affirmed.

Justice Gorsuch authored a lengthy dissent, which was joined by Justice Jackson, and which starts this way:

Imagine a lifeguard perched on his chair at the beach who spots a swimmer struggling against the waves. Instead of leaping into action, the lifeguard chooses to settle back in his chair, twirl his whistle, and watch the swimmer slip away. The lifeguard may know that his inaction will cause death. Perhaps the swimmer is the lifeguard’s enemy and the lifeguard even wishes to see him die. Either way, the lifeguard is a bad man. In many States, he may be guilty of a serious crime for failing to fulfill his legal duty to help the swimmer. But does the lifeguard’s offense also qualify under 18 U. S. C. §924(c)(3)(A) as a “crime of violence” involving the “use . . . of physical force against the person . . . of another”? The Court thinks so. I do not. Section 924(c)(3)(A) may reach many crimes, but it does not reach crimes of omission.

Supreme Court unanimously limits reach of federal bank fraud statute to fraud in Thompson

This morning the US Supreme Court handed down a unanimous opinion in favor of a federal criminal defendant on a statutory issue in Thompson v. US, No. 23–1095 (S. Ct. March 21, 2025) (available here).  The opinion for the Court, authored by Chief Justice Roberts, begins and ends this way:

Patrick Thompson took out three loans totaling $219,000 from the same bank. Later, Thompson told the Federal Deposit Insurance Corporation (FDIC) that he had “borrowed . . . $110,000” from the bank. Thompson was indicted under 18 U.S.C. §1014 for making “false statement[s]” to the FDIC. Thompson argued that his statements were not false because he had in fact taken out a loan for $110,000 just as he said. Both the District Court and the Seventh Circuit held that they did not need to consider that argument. In their view, the prohibition in §1014 against “false statement[s]” extends to misleading ones as well, and Thompson’s statements were at least misleading in failing to mention the additional loans. The question presented is whether §1014 criminalizes statements that are misleading but not false....

In casual conversation, people use many overlapping words to describe shady statements: false, misleading, dishonest, deceptive, literally true, and more.  Only one of those words appears in the statute.  Section 1014 does not criminalize statements that are misleading but true. Under the statute, it is not enough that a statement is misleading.  It must be “false.”

The judgment of the Court of Appeals for the Seventh Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. 

Justice Alito authored a four-page concurrence making a number of points, and primarily stressing that "in considering whether a statement is 'false,' judges and juries must view the statement in 'the context in which it is made'.”

Justice Jackson authored a one-page concurrence contending that, in this case, "the jury was properly instructed that it could find Thompson guilty only if the prosecution proved beyond a reasonable doubt that Thompson 'made the charged false statement[s]'.”

Oklahoma executes man not objecting to his execution 20 years after capital murder

As detaled in this local article, "Oklahoma carried out its first execution of 2025 on Thursday, giving a lethal injection to a confessed killer who had said in his first interview with police that he wanted the death penalty."  Here are some of the notable details:

Wendell Arden Grissom, 56, was pronounced dead at 10:13 a.m. at the Oklahoma State Penitentiary. "I consider this a mercy. It's going to be all right," he said in his last words after apologizing and asking for forgiveness from "all of you that I hurt." He did not seek any emergency stays in court and did not speak at his clemency hearing in February. He told Newsweek on Monday, "I don't want to spend the rest of my life in here."...

Grissom was executed for fatally shooting a woman during a 2005 home invasion in rural Blaine County. The victim, Amber Dawn Matthews, 23, was at the isolated home near Watonga helping a friend, Dreu Kopf, pack for a move the next day. Matthews was shot the first time in the back of the head while holding her friend's newborn baby, Gracie. She was shot again in the forehead after collapsing to the floor. Kopf also was shot but survived....

The execution was the 16th in Oklahoma since lethal injections resumed in October 2021 after a long hiatus brought about by drug mix-ups and botched procedures. It took only 10 minutes to complete. "This was probably as flawless of an execution that we've had in terms of the process," said Steven Harpe, the Oklahoma Department of Corrections' executive director....

The execution was carried out before more than 20 family/victim witnesses, including Kopf, her two daughters, and Matthews' father. A spiritual adviser from California, Mary Meyer, prayed at Grissom's feet in the execution chamber.

In his lengthy last statement, Grissom said he was under the influence of drugs and alcohol at the time of the shooting. "It's still my fault," he added. "I'm not who I made myself look like that one day." He said he did not deserve forgiveness but prayed that "you all can forgive me, not for my sake, for your sake." He added that "it is the only way you will find God in this."

With the four executions completed in four states this week, the US has now carried out a total of 10 executions nationwide faster in 2025 than in any year since 2015.  But, this is still a relatively slow pace in recent US history, as there were 30 executions in the US before the end of March in 1999.  It will be interesting to see if the current pace of executions in 2025 continues throughout the year.

Florida completes execution of man 32 years after double murder of grandmother and granddaughter

As reported in this AP piece, a "Florida man who killed an 8-year-old girl and her grandmother on a night in which he drank heavily and used drugs was executed Thursday evening." Here is more:

Prison officials said Edward James, 63, was pronounced dead at 8:15 p.m. after receiving a three-drug injection at Florida State Prison near Starke. He drew the death penalty after pleading guilty to the Sept. 19, 1993, killings of Toni Neuner, 8, and her grandmother, Betty Dick, 58.

The U.S. Supreme Court denied James’ final appeals earlier in the day, clearing the way for the state’s second execution of the year. Gov. Ron DeSantis signed James’ death warrant earlier this year and another warrant for an execution in early April...

Court records show James drank up to 24 beers at a party, downed some gin and also took LSD before returning to his room at Dick’s house. The girl was raped and strangled to death. The other children were not harmed.

James, who pleaded guilty to the charges, was also convicted of the girl’s rape and of stealing Dick’s jewelry and car after stabbing her 21 times. Court documents show James drove the car across the country, occasionally selling pieces of jewelry until he was arrested on Oct. 6 of that year in Bakersfield, California.

Police obtained a videotaped confession from James, who despite his guilty pleas was sentenced to death upon an 11-1 recommendation by a jury.

James’ lawyers had filed several appeals with state and federal courts, all of which were denied. Most recently, the Florida Supreme Court rejected an argument that his longtime use of drugs and alcohol, several head injuries and a heart attack in 2023 led to a mental decline that would make executing him cruel and unusual punishment.

New DOJ rule creates new process for restoring gun right to some with criminal convictions

As reported in this new Hill piece, the "Justice Department (DOJ) plans to create a process for those with criminal convictions to restore their gun rights."  Here is more:

The interim rule, posted in the Federal Register Thursday, follows a February executive order from President Trump directing a review of the country’s gun restrictions to “assess any ongoing infringements.”

The Bureau of Alcohol, Tobacco, and Firearms (ATF) has the power to restore gun rights, but the agency has been blocked from doing so under congressional appropriations riders since 1992. Under the DOJ proposal, the attorney general would designate that power within the department.

DOJ said the rule “reflects an appropriate avenue to restore firearm rights to certain individuals who no longer warrant such disability based on a combination of the nature of their past criminal activity and their subsequent and current law-abiding behavior.”

The notice also said that “no constitutional right is limitless” and that they would be “screening out others for whom full restoration of firearm rights would not be appropriate.”

However, groups advocating against gun violence argue the policy would ease the process for those convicted of violent crimes to gain access to a weapon....

Gun rights groups celebrated the interim rule, with Gun Owners of America saying it would end the “legal limbo” for those seeking to restore their right to own a weapon. “For decades, law-abiding Americans who have had their gun rights unfairly restricted have been left in legal limbo — creating an unconstitutional de facto lifetime gun ban,” Erich Pratt, the group’s senior vice president, said in a statement.

It will be interesting to see if this development could end up playing some role in the on-going (and circuit-dividing) Second Amendment litigation over the broad federal prohibition on the possession of firearms by those with felony convictions.  I wonder if federal prosecutors might now argue, or federal courts might now hold, that just the possibility of firearm rights restoration can save a broad prohibition from even as-applied unconstitutionality.

Bureau of Justice Statistics releases "Federal Justice Statistics, 2023"

The Bureau of Justice Statistics just released this new report, titled "Federal Justice Statistics, 2023," which is decribed this way in the email sent my way:

The Bureau of Justice Statistics, in the Department of Justice’s Office of Justice Programs, today released Federal Justice Statistics, 2023. This report describes cases processed by the federal criminal justice system, including the U.S. Marshals Service, Drug Enforcement Administration, Administrative Office of the U.S. Courts, Executive Office for U.S. Attorneys, Federal Bureau of Prisons, and U.S. Sentencing Commission.

This is the 37th report in an annual series based on data from BJS’s Federal Justice Statistics Program, which began in 1979. It provides national statistics on the federal response to crime for fiscal year 2023 and some statistics on changes over time. The report describes case processing in the federal criminal justice system, including investigations by U.S. attorneys, prosecutions and declinations, convictions and acquittals, sentencing, probation and supervised release, and imprisonment.

This document has an extraordinary amount of interesting data, and here is a small portion of the case processing and sentencing particulars:

About 91% of the 71,866 defendants adjudicated in FY 2023 were convicted (table 6). Nearly all defendants charged with immigration (98%), weapons (94%), drug or other regulatory offenses (both 92%) offenses were convicted. About 89% of defendants adjudicated pled guilty. Two percent of defendants were convicted through a bench or jury trial. Defendants adjudicated in U.S.Mexico border districts had a higher conviction rate (96%) than defendants in non-border districts (88%).  Among felony offenses, rates of nonconviction ranged from 2% for immigration offenses to 12% for public order regulatory offenses.  The largest percentage of adjudicated cases that were not convicted were dismissed or otherwise concluded by the judge or prosecutor (9%).  Acquittals (median 475 days), dismissals (median 469 days), and guilty pleas (median 302 days) took less time to process from case filing to disposition than trials that ended in convictions (median 797 days)....

Of the 65,482 defendants convicted in U.S. district court in FY 2023, more than three-quarters (76%) were sentenced to prison (table 7).  The remainder received probation only (8%), a fine only (2%), or other sentence (15%), which includes case dismissals, sealed cases, or sentences to time served.  In 2023, about 79% of persons convicted of a felony received a prison sentence.  Persons convicted of violent (93%), drug (90%), or weapons (89%) felonies were most likely to receive prison terms. Twenty-one percent of persons convicted of a misdemeanor received a prison sentence in FY 2023....

Convicted defendants received a median sentence of 108 months in prison for a violent offense, 72 months for a drug offense, and 60 months for a nonregulatory public order offense.  Nonregulatory public order offenses include receipt and distribution of child sexual exploitation materials, or child pornography.  These offenses carry lengthy mandatory minimum penalties, which will increase the overall sentence length of this group of offenses. The median prison term for immigration defendants convicted of a felony was 14 months.

Arizona completes execution 20+ years after murderer sought "suicide by jury"

As reported in this USA Today article, "Arizona executed convicted murderer Aaron Gunches by lethal injection Wednesday, marking the first execution in the state since 2022. Gunches, 53, had sought his execution since his guilty plea for the 2002 murder of Ted Price outside of Phoenix and received a lethal dose of pentobarbital at the Arizona State Prison Complex in Florence, Arizona." Here is more:

Gunches was set to be executed in 2023 but a series of botched executions in 2022 led Democratic Gov. Katie Hobbs to suspend capital punishment for a review that ended late last year.... Gunches' execution was a test of the updated protocol, under which state officials have said there will now be additional members on the execution team....

The daughter of the victim, Brittney Price, released a statement ahead of the execution saying that its completion lifted a weight off of her shoulders. "The pain of reliving the circumstances surrounding my father’s death for over two decades has taken a significant toll on my family and me," Price wrote. "Today marks the end of that painful chapter and I couldn’t be more grateful."

Karen Price, the victim's sister, previously told USA TODAY that Gunches' execution would end her dealing with the aftermath of her brother's murder, but "it's not closure."... She previously told USA TODAY that the process of keeping track of Gunches was "emotionally taxing," and has long been ready for his execution. "We want to be done with him, to not have to think about him anymore, to not have to get any calls from victims advocates," Price said "We just want to be done."...

Gunches pleaded guilty to killing Ted Price, who was the former longtime partner of Gunches' girlfriend.... Gunches shot Price four times.... Gunches was arrested in La Paz County after shooting an Arizona Department of Public Safety officer during a traffic stop, according to the Parker Pioneer. The officer survived.... Investigators matched the bullets used in the La Paz County shooting with those used in Price's death, court records show.....

During his sentencing, Gunches told jurors: "Do what you’re going to do," according to the Arizona Mirror. The presiding judge commented that Gunches was "committing suicide by jury."

In 2018, Gunches wrote the first of five letters to then-Attorney General Mark Brnovich asking to be executed, according to one of his handwritten motions.  In December, Gunches asked to be executed on Valentine's Day and accused the state of pointless "foot-dragging," according to his court filing. The Arizona Supreme Court refused. Gunches waived his right for a clemency hearing, one of his last chances for a reprieve.

Apparently in Arizona, "suicide by jury" is an especially slow way to die.

US Sentencing Commission publishes 2024 Annual Report and 2024 Sourcebook of Federal Sentencing Statistics

This morning  the US Sentencing Commission sent out an email highlighing notable new materials and data now available via the USSC's website:

2024 Annual Report

The Annual Report highlights the Commission’s major activities and accomplishments during fiscal year 2024 as well as noteworthy trends and shifts in the federal sentencing caseload. 

Learn more

2024 Sourcebook of Federal Sentencing Statistics

The Sourcebook presents fiscal year 2024 federal sentencing data collected from more than 317,000 documents submitted to the Commission by the federal courts nationwide. 

Learn more

I hope to find some time to dig into these materials in the weeks ahead to highlight some notable data realities about the federal sentencing system.

"Our Anemic Excessive Fines Clause: Are State Courts Following the Federal Lead?"

The title of this post is the title of this new paper authored by Michael O'Hear and now available via SSRN. Here is its abstract:

In 2019, in Timbs v. Indiana, the United States Supreme Court held for the first time that the Eighth Amendment Excessive Fines Clause is incorporated into the Fourteenth Amendment and thus limits the fines that can be imposed by state and local authorities.  In its opinion, the Court suggested that the Clause might be used to rein in the controversial and growing reliance of American governments on economic penalties -- a practice that is said to warp law-enforcement priorities and shift public expenses from ordinary taxpaying sources to the socioeconomically disadvantaged.  However, Timbs was decided against a backdrop of well-established, contrary jurisprudential patterns in the lower federal courts. The federal case law has consistently adopted narrowing interpretations of the Excessive Fines Clause, which have left the Clause largely ineffectual as a matter of federal practice.

Timbs seemed to invite state courts to engage differently with the Clause.  Have they?  This Article provides the first systematic survey of the post-Timbs state case law on the Excessive Fines Clause.  On the whole, state courts are following the federal lead, although the case law in a handful of states holds out the possibility of a more robust understanding of the Clause.  In particular, if the emerging case law in Washington proves influential with other states, there remains some possibility that the promise of Timbs will be realized.

Louisiana completes its first execution in 15 years and its first by nitrogen gas

As reported in this local article, "Louisiana executed death row prisoner Jessie Hoffman on Tuesday evening, killing him with nitrogen gas, a method never before used in the state." Here is more:

The execution was Louisiana's first in 15 years. Hoffman was convicted in the 1996 murder and rape of Mary "Molly" Elliott, a 28-year-old advertising executive who was abducted the day before Thanksgiving and shot in rural St. Tammany Parish....

Shortly before Hoffman was set to be executed, a closely divided U.S. Supreme Court rejected a request from his attorneys to issue a stay in his case. Hoffman had argued to them that breathing nitrogen gas would violate his Buddhist beliefs.

U.S. Supreme Court Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson disagreed with the majority decision and said they would grant a stay for Hoffman. Justice Neil Gorsuch also wrote a dissent, saying both the federal district and appeals courts in Hoffman's case should have considered his claim about the execution method violating his faith under the Religious Land Use and Institutionalized Persons Act.

The Supreme Court order denying a stay, with Justice Gorsuch's short written dissent, is available at this link.

Two more states moving bills forward to make child rape a capital offense

In spring 2023, as detailed in this post, Florida became the first state to authorize the death penalty for the crime of child rape since the Supreme Court's ruling in Kennedy v. Louisiana, 554 U.S. 407 (2008).  (In Kennedy, the Court decided, by a 5-4 vote, that the US Constitution's Eighth Amendment prohibits a state from imposing a death sentence for the crime of child rape.)  In spring 2024, as detailed in this post, Tennessee became the second state to enact legislation allowing the death penalty for certain child rape convictions since Kennedy.

Now, as spring 2025 approaches, local press stories detail that two more states seem to be on track to put similar new capital punishment laws on their books:

From Alabama, "Committee approves bill expanding death penalty for child sexual assault"

From Idaho, "Idaho House unanimously passes child sex abuse death penalty bill"

Especially because Idaho barely ever uses its existing death penalty laws even against murderers (basics here from DPIC), the state's possible expansion of the death penalty to child rape seems unlikley to produce a lot more death sentences.  And yet, as one legislator in Idaho noted, legislative enactments matters in modern Eighth Amendment analysis:    

Rep. John Shirts, R-Weiser, a prosecutor in the Air Force Reserve, said “there are things that are so horrific that people do to children there’s nothing more than ultimate punishment that is just.”  And he suggested Idaho’s bill would help the court re-evaluate the issue. “Some people might argue that this doesn’t have any binding on the court. It really does,” Shirt said.  “It shows what our will, what the state’s will, in these types of cases, are. It goes to that national consensus analysis under the Eight Amendment.”

There were six states with capital child rape statutes on the books when Kennedy was handed down, so it seems unlikley that even four states with new capital child rape statutes woud alter the "national consensus analysis under the Eight Amendment." But it is unclear whether the current Supreme Court would continue to embrace and apply this jurisprudential approach to the Eighth Amendment. And, notably, the only three Justices still on the Court since the 2008 Kennedy decision, namely the Chief Justice and Justices Thomas and Alito, were all part of the dissent in that case.

That all said, I am unaware of any a capital child rape case going to trial in Florida's since its capital child rape statute was enacted in 2023.  So, it likely will take (many more?) years before a child rape death sentence is actually imposed and appealed in any jurisdiction to provide the Supreme Court an opportunity to reconsider its Kennedy ruling.

"Killing Through Their Kids"

The title of this post is the title of this new piece authored by Dyllan Taxman now available via SSRN. Here is its abstract:

In early 2024, James and Jennifer Crumbley were sentenced to over a decade in prison after their son, Ethan, shot and killed four classmates at Oxford High School in Michigan.  The Crumbley parents incurred manslaughter liability by ignoring Ethan’s deteriorating mental state, gifting him the murder weapon, and failing to act on concerns about Ethan’s behavior on the day of the shooting.  In this Article, I suggest they will be far from the last. Indeed, less than one year after the Crumbley convictions, Colin Gray — whose son committed the shooting at Apalachee High School — was charged with manslaughter and second-degree murder.

Current coverage of the Crumbley parents’ conviction has cabined their case as an outlier, unlikely to repeat due to uniquely egregious facts.  I argue that charging and convicting the parents of a school shooter will recur because similar conduct has produced parental homicide liability for over a century of widespread American jurisprudence via homicide by medical neglect and passive abuse.  By analyzing the Crumbley parents’ conviction in this context, I draw out a test to determine when parental homicide liability might attach following a school shooting.  This duty to prevent test asks if parents: (1) ignored clear warning signs about the child’s deteriorating mental health; (2) facilitated the child’s access to a weapon; and finally (3) ignored additional warnings about the child’s violent ideations.  Where each prong is met, parental homicide liability following a school shooting tracks not only the theory of liability upon which the Crumbleys were convicted, but also the traditional and well-established components of homicide liability for medical neglect and passive abuse.  Finally, I suggest that school officials who meet each prong of the test may incur similar liability under certain circumstances.

Trying to understand Prez Trump's unclear claims about former Prez Biden's pardons

Prez Trump via this Truth Social post makes a variety of unclear claims while asserting that "many" of former Prez Bidens pardons "are hereby declared VOID, VACANT, AND OF NO FURTHER FORCE OR EFFECT." Like many social media postings, there seems to be more rambling than argument in Prez Trump's post, and here is the full text:

The “Pardons” that Sleepy Joe Biden gave to the Unselect Committee of Political Thugs, and many others, are hereby declared VOID, VACANT, AND OF NO FURTHER FORCE OR EFFECT, because of the fact that they were done by Autopen. In other words, Joe Biden did not sign them but, more importantly, he did not know anything about them! The necessary Pardoning Documents were not explained to, or approved by, Biden. He knew nothing about them, and the people that did may have committed a crime. Therefore, those on the Unselect Committee, who destroyed and deleted ALL evidence obtained during their two year Witch Hunt of me, and many other innocent people, should fully understand that they are subject to investigation at the highest level. The fact is, they were probably responsible for the Documents that were signed on their behalf without the knowledge or consent of the Worst President in the History of our Country, Crooked Joe Biden!

I am not aware of any legal holdings or even suggestions that a properly authorized presidential pardon signed by autopen would be legally invalid.  Indeed, a 2005 Justice Department opinion explained why autopen could be used to sign bills into law, and I do not think this view has ever been legally challenged.  (That said, if it was undisputed that someone else "executed pardons by autopen" without a President's express approval or even knowledge, it seems reasonable to expect such "fake pardons" would be deemed fraudulent and invalid.)  Given that Prez Trump has long had an uneasy relationship with the truth in various contexts, I am disinclined to credit his assertions (or "declarations") in this context.

That said, it seems worth noting that even an entirely valid pardon, preemptive or otherwise, likely would not generally serve to prevent someone from being "subject to investigation."  Though a federal pardon generally can and does preclude any and all federal criminal prosecutions/punishments, state criminal actions as well as federal and state civil actions (and related investigations) are generally not formally or informally precluded by pardons.  

In the end, I suspect Prez Trump's posting is primarily an effort to create a news cycle around his perceived "enemies," and not a statement that his administration is planning to pursue federal criminal prosecution of some who received clemency from former Prez Biden.  But, given all the unpredicatable and chaotic developments less than two months into Prez Trump's second term (including in the clemency spece), I know better than to make any firm predictions here. 

Highligthting some of many highlights from Sentencing Matters Substack

It has been a little while since I highlighted here posts from the Sentencing Matters Substack, in part because some recent essays published there have gone beyond just sentencing topics.  But especially with this latest posting teaching me something about the history of federal "fast-track" immigration sentencing, and lots of other ecent posts covering lots of similarly interesting and timely ground, I figured it was time for a little cross-promotion of recent sentencing-focused essays.  So:

"Booker v. United States and Its Place in the History of Federal Sentencing Law and Policy"

"The Department of Justice’s New Criminal Charging Policies"

"The Sentencing Matters Substack Book Review: The Cost of Plea Bargains, Edited by Lucian Dervan, Russell Covey, and Thea Johnson"

"The Sentencing Matters Substack Interview: Assistant Professor of Law Raquel Wilson"

"Puppet or Protector?: An Uneasy Balance at the Justice Department After and Before Trump"

"Liberty’s absence in jurisprudence and practice regarding extreme prison sentences"

These essays are just a smattering of lots of great and diverse content at the Sentencing Matters Substack since just the start of the new year.  Though others deserve credit for nearly all of the writing and curating, I can still urge everyone who follows sentencing and broader criminal justice issues to subscribe. 

"The Historical Origins and Evolution of Rehabilitative Punishment"

The title of this post is the title of this new "ahead of print" article forthcoming in the journal Crime and Justice. Authored by Michele Pifferi, her is the piece's abstract:

The notion of rehabilitative punishment has changed over time, variously informed by political contexts, prevailing ideas, and institutional frameworks.  Enlightenment utilitarian reformers did not prioritize reformation of the offender.  The penitentiary movement of the late eighteenth and early nineteenth centuries mainly concerned new prison regimes that did not, however, question the retributive and deterrent rationales of punishment. The nineteenth century was characterized by significant albeit isolated experiments in prison regimes premised on offenders’ reintegration and by a theoretical debate on the consistency of reeducative goals and methods with penal liberalism. With the rise of criminological reformism between the 1870s and the 1920s, the rehabilitative principle became the basis for theoretical rethinking of the rationale of punishment and the justifications of structural sentencing reforms. Paradoxically, the growing importance of alternatives to imprisonment and reformative treatment was always associated, in discourse and in practice, with incapacitation.  This inherent contradiction characterizes the rehabilitative ideal to the present day. Recently, even more than the constitutionalization of rehabilitation in some countries and its recognition by international law authorities, the jurisprudence of supranational courts seems to open new prospects for recognition of resocialization as a right of the offender.