Sentencing Law and Policy

Pre-gaming the State of the Union with a few White House Fact Sheets talking a bit about crimes and punishment

I may not get a chance to watch Prez Biden's State of the Union address tonight, and I am not really expecting it will cover any big sentencing issues (or small sentencing issues for that matter).  That said, I do expect some crime and punishment matters to get some air time during a speech that likely will make some mention of policing practices and the nation's drug overdose problems.  And my expectations have already been somewhat confirmed even hours before the SotU speech via these releases from the White House:

FACT SHEET: The Biden-⁠Harris Administration’s Work to Make Our Communities Safer and Advance Effective, Accountable Policing

FACT SHEET: In State of the Union, President Biden to Outline Vision to Advance Progress on Unity Agenda in Year Ahead

Here are some items pulled from these "fact sheets" — which, I must say, do not actually read as "fact sheets — that may be of particular interest to sentencing fans:

Investing in Crime Prevention. The President’s Safer America Plan calls on Congress to invest $15 billion in services that help prevent crime from occurring in the first place, including: mental health and substance use disorder services, such as co-responder and alternative responder programs where social workers and other professionals respond to calls that should not be the responsibility of law enforcement; job training and employment opportunities, including for teenagers and young adults; housing and other supportive social services to individuals who are homeless; and reentry services so people leaving prison can stabilize their lives and avoid recidivism.  The Plan also incentivizes the reform of laws that increase incarceration without reducing public safety and lift almost all federal restrictions on eligibility for vital benefits (such as food, income, and disability-based assistance) for people with prior convictions....

Addressing a failed approach to marijuana and crack cocaine. The criminalization of marijuana possession has upended too many lives — for conduct that is now legal in many states. While white, Black and brown people use marijuana at similar rates, Black and brown people are disproportionately in jail for it. In October 2022, the President announced a full, unconditional, and categorical pardon for prior federal simple marijuana possession offenses.  This pardon lifts barriers to housing, employment, and educational opportunities for thousands of people with prior convictions under federal and D.C. law for simple marijuana possession.  The President also called on every state governor to follow his lead, as most marijuana prosecutions take place at the state level.  And because this Administration is guided by science and evidence, he called on the Secretary of HHS and the Attorney General to review how marijuana is scheduled under federal law.

In addition, the Safer America Plan calls on Congress to end once and for all the racially discriminatory sentencing disparity between crack cocaine and powder cocaine offenses — as President Biden first advocated in 2007 — and make that change fully retroactive.  This step would provide immediate sentencing relief to the 10,000 individuals, more than 90 percent of whom are Black, currently serving time in federal prison pursuant to the crack/powder disparity.  As an initial step, the Attorney General has issued guidance to federal prosecutors on steps they should take to promote the equivalent treatment of crack and powder cocaine offenses, but Congress still needs to act....

Beating the Opioid and Overdose Epidemic by Accelerating the Crackdown on Fentanyl Trafficking and Public Health Efforts to Save Lives
Last year, President Biden announced his plan to beat the opioid epidemic as part of his Unity Agenda, because opioid use and trafficking affect families in red communities and blue communities and every community in between.  Under President Biden’s leadership, overdose deaths and poisonings have decreased for five months in a row — but these deaths remain unacceptably high and are primarily caused by fentanyl....  [T]he President will announce in the State of Union that his administration will:...

• Work with Congress to make permanent tough penalties on suppliers of fentanyl.  The federal government regulates illicitly produced fentanyl analogues and related substances as Schedule I drugs, meaning they are subject to strict regulations and criminal penalties.  But traffickers have found a loophole: they can easily alter the chemical structure of fentanyl — creating “fentanyl related substances” (FRS) — to evade regulation and enhance the drug’s impact.  The DEA and Congress temporarily closed this loophole by making all FRS Schedule I.  The Administration looks forward to working with Congress on its comprehensive proposal to permanently schedule all illicitly produced FRS into Schedule I.  Traffickers of these deadly substances must face the penalties they deserve, no matter how they adjust their drugs.

"Climate Homicide: Prosecuting Big Oil For Climate Deaths"

The title of this post is the title of this notable new article now available via SSRN authored by David Arkush and Donald Braman. Here is its abstract:

Prosecutors regularly bring homicide charges against individuals and corporations whose reckless or negligent acts or omissions cause unintentional deaths, as well as those whose misdemeanors or felonies cause unintentional deaths. Fossil fuel companies learned decades ago that what they produced, marketed, and sold would generate “globally catastrophic” climate change.  Rather than alert the public and curtail their operations, they worked to deceive the public about these harms and to prevent regulation of their lethal conduct.  They funded efforts to call sound science into doubt and to confuse their shareholders, consumers, and regulators.  And they poured money into political campaigns to elect or install judges, legislators, and executive officials hostile to any litigation, regulation, or competition that might limit their profits.  Today, the climate change that they forecast has already killed thousands of people in the United States, and it is expected to become increasingly lethal for the foreseeable future.

Given the extreme lethality of the conduct and the awareness of the catastrophic risk on the part of fossil fuel companies, should they be charged with homicide?  Could they be convicted?  In answering these questions, this Article makes several contributions to our understanding of criminal law and the role it could play in combating crimes committed at a massive scale.  It describes the doctrinal and social predicates of homicide prosecutions where corporate conduct endangers much or all of the public.  It also identifies important advantages of homicide prosecutions relative to civil and regulatory remedies, and it details how and why prosecution for homicide may be the most effective legal remedy available in cases like this.  Finally, it argues that, if our criminal legal system cannot focus more intently on climate crimes — and soon — we may leave future generations with significantly less for the law to protect.

"We Can Ensure Public Safety And Still Reduce Incarceration"

The title of this post is the title of this new Law360 piece authored by Jeffrey Bellin.  The full piece is worth a full read (in part to see citations for various claims), and here are excerpts:

Between 1982 and 2010, the total amount spent by states on incarceration, including parole and probation, rose from $15 billion a year to $48.5 billion annually.  Between 1980 and 2013, annual federal corrections spending grew from under $1 billion to almost $7 billion.

That's why reducing jail and prison populations shouldn't be controversial.  It is mass incarceration that is the radical, expensive and unproven government policy.  And it is a policy that the country chose largely by accident.  In the early 1970s, this country's incarceration and crime rates were low and unremarkable. Then, a temporary crime spike spurred a new age of bipartisan penal severity....

There is, in fact, little correlation between violent crime and harsh or lenient criminal justice policies.  Understanding the past — and the unnecessary choices that this country made in response to the 1970s crime spike — is the best hope for a different future.

Sexual violence, armed robberies and murders were all serious crimes prior to the 1970s and were vigorously prosecuted.  But that's where the similarities between past and present end.  We didn't use to arrest, much less prosecute, so many drug offenders. We didn't use to hold so many people in jail prior to trial.  We used to sentence people to shorter prison terms.  And we relied on parole boards to let people out of prison, ensuring that prisons did not, as now, fill with the sick and elderly....

We used to be better at preventing violence and better at solving serious crimes, probably because that is where law enforcement focused its resources.  The people who suffer the brunt of violent crime typically embrace that focus — and their cooperation is a key factor in reducing crime.

When the police are viewed as working to solve and prevent serious violent crimes, the community turns out to support those efforts.  But if officers are viewed as arbitrary, incompetent and worse, the witnesses they rely on to help solve serious crimes become less likely to volunteer information.

While it is important to focus on reducing violent crime, there is no evidence that reembracing the policies that fueled mass incarceration will do that.  Those policies may even prove counterproductive.  For example, a December 2021 study from the Cato Institute found that certain prosecutions actually increased, rather than decreased, the likelihood of future crime.

We should put aside tough-on-crime rhetoric and focus on preventing violence in more promising ways, like those offered by the Council on Criminal Justice's Violent Crime Working Group to prevent gun violence before it happens.

The emerging resistance to criminal justice reforms illustrate not the merit of tough-on-crime policies, but the stubborn rhetorical appeal of the policies that fuel mass incarceration.  These policies are everywhere, the result of countless changes to local, state and federal laws and processes that emerged over decades.  A few of those changes targeted the violent crimes that grab the headlines, but most did not.

This complexity means that while there is no silver-bullet solution to our overreliance on incarceration, we can continue to reduce prison and jail populations without threatening public safety.

Our current incarceration rate — over 500 incarcerated per 100,000 people — still far exceeds our long-standing historical rate of around 100 per 100,000, as well as the incarceration rates of other, lower-crime countries, including England, France, Germany and Japan.  As our own history and the much lower incarceration rates around the world reveal, we do not need to choose between less violence and less incarceration.  We can have both.

UPDATE: Thanks to social media, I just saw that Keith Humphries authored a similar commentary just published in the Washington Monthly.  The full title of this new piece highlights its themes: "Violent Crime and Mass Incarceration Must be Tackled Together: Conservatives and liberals need to hear each other for us to become a low-crime, low-incarceration society. There are policies that can help." Here is the commentary's closing paragraph:

At the risk of sounding like I’m to break out into the chorus of Kumbaya, there is a rational way forward for both sides to move America into the low-crime, low-incarceration quadrant populated by most other developed nations.  This would require the tough-on-crime camp to give up on the idea that more incarceration will reduce violence and the anti-incarceration camp to stop minimizing violent crime in America.  (“It was worse in the 1980s,” a familiar refrain, is of no comfort to today’s grieving families of murder victims.)  Instead, both sides could rally around the range of health (e.g., expanding Medicaid), law enforcement (e.g., focused deterrence), and tax policies (e.g., raising the price of alcohol) that have good evidence of reducing violent crime, which in turn will reduce incarceration.  This policy agenda will require a broad coalition.  The first step towards that is for everyone in the debate to recognize that the people they’ve been yelling at have a good point, too.

A number of notable capital punishment stories to start the week

I have seen so many notable new press stories about capital punishment issues, I concluded this round-up of headlines and links would be the only way to keep up:

From the AP, "Spiritual advisers offering final comfort in execution rooms"

From the AP, "Florida could end unanimous jury requirement for executions"

From the Kansas City Star, "‘Intolerable injustice’: Innocence Project calls for halt to Missouri man’s execution"

From the Pittsburgh Post-Gazette, "Shapiro must decide whether and how to keep Wolf's death penalty moratorium in place"

From the UPI, "Death row inmate's attorneys called sentence 'justifiable lynching' in 1999 hearing"

From WFLA, "Steven Lorenzo requests death penalty in double murder case"

From WIBW, "ACLU to try Kansas death penalty in multi-day Wichita hearing"

Federal judge declares federal law criminalizing marijuana users from gun possession violates Second Amendment

In a post last summer right after the Supreme Court's landmark Second Amendment ruling, I wondered "Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?".  In that post, I flagged the notably broad provision of federal firearms law, 18 U.S.C. § 922(g)(3), which categorically criminalizes any gun possession by anyone who is an "unlawful user of or addicted to any controlled substance."  I also noted that, in an era in which marijuana use is legal for medical or recreational use in the vast majority of states but still is federal prohibited, this broad federal criminal "unlawful user" gun dispossession statute could function to criminalize the behaviors of tens of millions of gun-owning Americans.

As detailed in this Reuters article, at least one federal judge had decided that the answer to my query is yes, § 922(g)(3) is constitutionally problematic.  Here is how the article describes the ruling: 

A federal law prohibiting marijuana users from possessing firearms is unconstitutional, a federal judge in Oklahoma has concluded, citing last year's U.S. Supreme Court ruling that significantly expanded gun rights.  U.S. District Judge Patrick Wyrick, an appointee of former Republican President Donald Trump in Oklahoma City, on Friday dismissed an indictment against a man charged in August with violating that ban, saying it infringed his right to bear arms under the U.S. Constitution's Second Amendment.

Wyrick said that while the government can protect the public from dangerous people possessing guns, it could not argue Jared Harrison's "mere status as a user of marijuana justifies stripping him of his fundamental right to possess a firearm."  He said using marijuana was "not in and of itself a violent, forceful, or threatening act," and noted that Oklahoma is one of a number of states where the drug, still illegal under federal law, can be legally bought for medical uses.

"The mere use of marijuana carries none of the characteristics that the Nation's history and tradition of firearms regulation supports," Wyrick wrote. Laura Deskin, a public defender representing Harrison, said the ruling was a "step in the right direction for a large number of Americans who deserve the right to bear arms and protect their homes just like any other American."

The full opinion in this case from Judge Wyrick, which runs 54 pages with nearly 200 footnotes, is available at this link.  I am inclined to expect that the US Justice Department will plan to appeal this decision to the Tenth Circuit, and Judge Wyrick's thorough opinion will surely give litigants on any appeal and perhaps elsewhere in the country a lot of chew on.

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen
• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order
• Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 
• En banc Third Circuit to reconsider constitutionality of § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 

US Representatives create new "Bipartisan Second Chance Task Force"

I was intrigued and pleased to come across this press release from this past week discussing a new bipartisan group of Representative working on an important criminal justice issue.  Here are the details:

Representatives David Trone (D-MD), John Rutherford (R-FL), Kelly Armstrong (R-ND), and Lisa Blunt Rochester (D-DE) announced the creation of the Bipartisan Second Chance Task Force in an effort to promote policies that will improve reentry outcomes and reduce employment barriers for returning citizens.  At the time of its launch, the Task Force comprised of 26 Members of Congress (13 Democrats and 13 Republicans).

During its inaugural event, members and co-chairs were joined by Federal Bureau of Prisons (BOP) Director, Colette Peters, and Acting Head of National Institute of Corrections, Alix McLearen, for an introductory briefing on the challenges that the BOP faces in establishing and maintaining successful reentry programming.

Over 600,000 individuals are released from state and federal prisons every year in the United States, and recent studies show that formerly incarcerated people are currently unemployed at an average rate of over 27 percent.  The new task force aims to address these barriers to successful reentry by developing and promoting reform policies in Congress and hosting monthly roundtable discussions.

“Returning citizens continue to face hurdles that prevent them from rebuilding their lives and becoming productive members of society. After paying their debts to society, they are effectively shut out of housing, employment, financial support – you name it.  This isn’t fair, and this isn’t right,” said Congressman Trone.  “As a businessman, I know firsthand that there is a lot of value in hiring returning citizens and giving folks a second chance.  I’m proud to co-found and co-chair the Bipartisan Second Chance Task Force so that we work together – Republicans and Democrats – to address the problems in our criminal justice system head-on, and provide returning citizens with the resources they desperately need.”

“As a lifetime member of law enforcement, I saw firsthand how difficult it can be for those leaving our jails and prisons to re-enter society.  From getting an ID to finding a job, stable housing, and healthcare, these individuals face many barriers to success after incarceration. When I was sheriff, I created a robust reentry program in Northeast Florida, and I look forward to continuing that work in Congress.  Helping the formerly incarcerated become productive members of society makes our communities safer and reduces the number of repeat offenders.  That’s not being soft on crime, that’s being smart on crime,” said Congressman John Rutherford.  “I look forward to working with Representatives Trone, Armstrong, and Blunt Rochester, and all of my colleagues on the Second Chance Task Force, to support those reentering society and reduce recidivism.”...

Other Members of Congress in the Task Force include Bonnie Watson Coleman (D-NJ), Nancy Mace (R-SC), Danny Davis (D-IL), G.T. Thompson (R-PA), Barbara Lee (D-CA), Guy Reschenthaler (R-PA), Mary Gay Scanlon (D-PA), Stephanie Bice (R-OK), Dan Goldman (D-NY), Barry Moore (R-AL), Paul Tonko (D-NY), Rick Crawford (R-AR), Glenn Ivey (D-MD), Anthony D’Esposito (R-NY), Ann McLane Kuster (D-NH), David Rouzer (R-NC), Brittany Pettersen (D-CO), Randy Weber (R-TX), Wiley Nickel (D-NC), Dan Meuser (R-PA), Susan Wild (D-PA), John James (R-MI).

Federal judge gives cocaine trafficker time served ... and a requirement that she complete her JD program

Here is another notable sentencing story that might keep the comments buzzing  This one comes from the ABA Journal under the headline "Federal sentence includes law school, and attorneys wonder why."  Here are the basics (with links from the original):

Based on federal sentencing guidelines, people found guilty of trafficking large amounts of cocaine usually face lengthy sentences.  However, a Texas defendant received what many say is an unusual punishment: five days in prison with credit for time served and direction from the judge to complete her JD.

Chelsea Nichole Madill was accused of trafficking 28.5 kilos of cocaine in a 2018 criminal complaint.  She was charged in the U.S. District Court for the Southern District of Texas, and in 2019, Madill pleaded guilty to possession with intent to distribute a Schedule II drug.

Federal sentencing experts say the average penalty for that crime is around five years.  In addition to the law school piece and no prison time, Madill was sentenced to three years of supervised release.  The 2023 sentencing judgment was written by Southern District of Texas Chief Judge Randy Crane.

Much of the record is sealed, and whether Madill attended or completed law school is not disclosed. There is someone with that name listed as a 2L Florida A&M University College of Law student bar association board member.  A 2019 order authorized travel expenses for Madill, directing the U.S. marshal to obtain the cheapest means of noncustodial transportation possible between her Florida residence and the McAllen, Texas, courthouse....

Madill did not respond to an ABA Journal interview request sent through LinkedIn, and her phone number listed in court records was disconnected. FAMU Law also did not respond to ABA Journal interview requests....

Jesse Salazar, the assistant U.S. attorney assigned to the case, referred an ABA Journal interview request to a public affairs officer.  The PAO said the office did not object to the sentence. Richard Gould, a federal public defender, represented Madill.  A receptionist at the Southern District of Texas Federal Public Defender’s Office told the ABA Journal Gould does not speak to reporters....

The sentence is unique, says Michael Heiskell, a Texas attorney and president-elect of the National Association of Criminal Defense Lawyers. Indeed, being a law student could have resulted in a longer sentence if the court was persuaded a defendant’s legal education helped them commit the crime, he adds.

“Kudos to her and her counsel for being able to convince the court to do this. Hopefully, this gives her the motivation to complete her JD. Maybe her story resonated with the judge since he is obviously an attorney,” says Heiskell, a former state and federal prosecutor who does criminal defense work.

According to Heiskell, credit for time served is unusual in drug cases involving delivery, and the sentencing range for Madill’s conviction is between 87 and 108 months.  He adds that a purpose of the federal sentencing guidelines is to avoid disparities, so Madill’s sentence may be useful for defendants with cases similar to hers.  “You would want to make the argument of the courts being consistent in its sentencing for cases such as this. If I had a situation where my client was learning to be a plumber, electrician, etc., I would cite this case,” Heiskell says.

The ABA Journal reporter called me about this  case; I mentioned that, given that the plea was entered in 2019 and then the sentence was not imposed until 2023, it seems quite likely the defendant provided some cooperation in exchange for a reduced sentence. The article does not quote me on that point, but does highlight some of my other speculations for the very special law-school-completion condition of supervision.

For those so interested, here is the exact language in the sentencing entry from Chief Judge Crane: "You must continue to participate and complete an educational program designed to receive a Doctor of Jurisprudence degree." I joked to the ABA Journal reporter that, in some quarters, this condition might be viewed as "cruel and unusual punishment." That quote also did not make the article,  But now that the piece is published, I am eager to hear reactions to this very lawyerly federal sentence.

Notable new grant of sentence reduction for California medical marijuana operator given nearly 22 years in federal prison back in 2008

I was pleased to learn late last night about a notable new ruling out of a federal district court in US  v. Scarmazzo, No. 1:06-cr-000342 DAD (E.D. Ca. Feb 2, 2023) (available for download below).  The case involves Luke Scarmazzo, a California medical marijuana dispensary operator who was federally prosecuted in the mid-2000s and was sentenced to 262 months in federal prison back in 2008.  As detailed in the 29-page opinion posted below, the federal district judge decision to reduce his sentence to time served (already more than 14 years).  The who sentence merits a full read for a host of reasons, and here are just a few key concluding passages: 

Having considered the parties’ briefing and reviewed the relevant case law, the undersigned’s current view is as follows.  This court clearly has the authority to reduce a mandatory minimum sentence in granting compassionate release.  Halvon 26 F.4th at 570. However, where, as here, the minimum mandatory sentence is still authorized by Congressionally enacted federal law that has not been subsequently subject to even non-retroactive amendment, the district court should not grant compassionate release based solely upon its conclusion that the originally imposed mandatory minimum sentence was unduly harsh.  See Thacker, 4 F.4th 569, 574. Nonetheless, this court has broad discretion to consider the harshness of the sentence in light of the current landscape in combination with other factors in determining whether extraordinary and compelling circumstances warrant the granting of compassionate release in a given case. Concepcion, 142 S. Ct. at 2396; Chen, 48 F.4th at 1095; Aruda, 993 F.3d at 802; Jones, 980 F.3d at 1111....

When considering the unique confluence of all of these circumstances — changes in the legal landscape with respect to federal enforcement of laws relating to distribution of marijuana in California; the significant disparity in the sentence actually served by co-defendant Montes and the 14+ years already served in prison by defendant Scarmazzo; defendant’s good behavior, meaningful employment, volunteer work, pursuit of educational opportunities during his imprisonment; defendant’s solid release plans including job offers and family support; the lack of danger posed to the community were he to be released; and defendant Scarmazzo’s difficult family circumstances that have developed during his imprisonment — the court is persuaded that the granting of the requested relief is appropriate at this point and is supported by both extraordinary and compelling circumstances and consideration of the sentencing factors set forth at 18 U.S.C. § 3553(a).

Download CR opinion in Scarmazzo case

Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order

A Fifth Circuit panel handed down today another big post-Bruen ruling declaring that the Second Amendment renders unconstitutional a federal prohibition on firearm possession for certain disfavored individuals.  The ruling today in US v. Rahimi, No. 21-11001 (5th Cir. Feb. 2, 2023) (available here), gets started this way:

The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal.  The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution.  In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), it is not.

Zackey Rahimi levies a facial challenge to § 922(g)(8). The district court and a prior panel upheld the statute, applying this court’s pre-Bruen precedent. See United States v. Rahimi, No. 21-11011, 2022 WL 2070392 at *1 n.1 (5th Cir. June 8, 2022).  Rahimi filed a petition for rehearing en banc; while the petition was pending, the Supreme Court decided Bruen.  The prior panel withdrew its opinion and requested supplemental briefing on the impact of that case on this one.  Considering the issue afresh, we conclude that Bruen requires us to re-evaluate our Second Amendment jurisprudence and that under Bruen, § 922(g)(8) fails to pass constitutional muster. We therefore reverse the district court’s ruling to the contrary and vacate Rahimi’s conviction.

Here are a few of many notable passages from the opinion:

Under the Government’s reading, Congress could remove “unordinary” or “irresponsible” or “nonlaw abiding” people — however expediently defined — from the scope of the Second Amendment. Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle? One easily gets the point: Neither Heller nor Bruen countenances such a malleable scope of the Second Amendment’s protections; to the contrary, the Supreme Court has made clear that “the Second Amendment right is exercised individually and belongs to all Americans,” Heller, 554 U.S. at 581.  Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal....

The Government fails to demonstrate that § 922(g)(8)’s restriction of the Second Amendment right fits within our Nation’s historical tradition of firearm regulation.  The Government’s proffered analogues falter under one or both of the metrics the Supreme Court articulated in Bruen as the baseline for measuring “relevantly similar” analogues: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” Id.  As a result, § 922(g)(8) falls outside the class of firearm regulations countenanced by the Second Amendment.

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement 
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen
• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
• Justice Department tells federal district judge "it is unnecessary ... to appoint an historian to assist" in resolving defendant's Second Amendment claim 
• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 
• En banc Third Circuit to reconsider constitutionality of § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 

UPDATE: This AP article about the Rahimi ruling provides a bit more context concerning the decision and also includes an official reaction from US Attorney General:

The U.S. Justice Department Thursday night issued the following statement from Attorney General Merrick B. Garland following the decision: “Nearly 30 years ago, Congress determined that a person who is subject to a court order that restrains him or her from threatening an intimate partner or child cannot lawfully possess a firearm.  Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional.  Accordingly, the Department will seek further review of the Fifth Circuit’s contrary decision.”

Seeking "further review," I suspect, will involve the Department of Justice first requesting en banc consideration of this panel decision in the Fifth Circuit.  If that does not happen, I would expect DOJ would then seek Supreme Court review.  Interestingly, were SCOTUS to take up this case (or any similar ones) anytime in 2023, we could reasonably expect another major Second Amendment ruling in the run up to the 2024 election.

"Circumventing Mandatory Minimum Sentences Through Legal Representation – An Integrated Methods Study of Drunk Driving Violations"

The title of this post is the title of this notable new article now available via SSRN authored by Jonathan Hasson and Abraham Tennenbaum.  Here is its abstract:

Most common law nations impose minimum sentences for drunk driving.  Israel introduced a mandatory minimum law in 1995 requiring a two–year license disqualification regardless of intoxication level.  In theory, the new law allows minimal room for deviation. In practice, however, our study demonstrates that the law in action has diverged significantly from “blackletter law.”  Through an integrated historical, quantitative, and qualitative analysis that follows the law from its inception to the present day, we explore the root causes of this deviation and the mechanisms of circumvention.

Based on quantitative data collected on drunk driving cases between 2008 and 2022 and a survey of professionals specializing in traffic law, we highlight how the law’s perceived harshness has contributed to plea bargains becoming the normative means of circumventing the law.  This circumvention undermines the law’s original intention, that is, uniformity, proportionality, and equity in sentencing.  Multiple variables including appearances in court, legal representation, jurisdiction, and the judge’s identity result in comparably guilty defendants receiving different sentences.  Given these disparities, we propose replacing the current minimum sentence with a graduated minimum based on intoxication levels; limiting prosecutorial and judicial discretion; and providing court date reminders and public counsel to minimize harm to vulnerable populations.

Notable trifurcation ruling in federal capital case against Tree of Life mass murderer

The criminal law professor listserve brought to my attention the interesting capital criminal procedure story coming this week from federal court in Pittsburgh.  This local article, headlined "Judge rules Tree of Life death penalty sentencing would occur in 2 phases," provides the basics:

If Robert Bowers is found guilty later this year of killing 11 worshippers inside a Squirrel Hill synagogue in 2018, his sentencing will be broken into two separate phases, a judge ruled this week.  The trial for Mr. Bowers, accused in the Oct. 27, 2018, mass shooting at the synagogue where three congregations — Tree of Life or L’Simcha, Dor Hadash and New Light — were holding Shabbat services, is set to begin in April.

Eleven were killed in the shooting: Joyce Fienberg, Richard Gottfried, Rose Mallinger, Jerry Rabinowitz, David and Cecil Rosenthal, Bernice and Sylvan Simon, Daniel Stein, Melvin Wax and Irving Younger. Two other worshippers and several police officers were injured.

Mr. Bowers’ defense team had sought to split the sentencing phase of the trial — if there is a sentencing phase — into two distinct segments, which would ultimately make the federal case against Mr. Bowers a three-part trial. The trial itself will take place, after which a jury will decide upon Mr. Bowers’ guilt. If he is found guilty, there will be two parts to the sentencing phase.  In the first, jurors will consider whether federal prosecutors have proved that Mr. Bowers is eligible for the death penalty, which the government is seeking. In the second, jurors will decide upon a sentence for Mr. Bowers.

Most notably, the decision by U.S. District Judge Robert J. Colville means that, if there is a sentencing phase, jurors won’t hear victim-impact statements until after they’ve decided if Mr. Bowers is eligible for the death penalty. Defense attorneys had sought this split sentencing, noting that otherwise “the jury will hear the highly emotional and prejudicial victim impact evidence in the same proceeding in which they consider whether the elements of a federal capital crime have been proven.”

In short, defense counsel feared jurors would be unduly swayed to decide Mr. Bowers was eligible for the death penalty if they heard the victim impact statements before making that decision. Federal prosecutors, in expressing opposition to splitting the sentencing phase, noted that the law does not require such a distinction. Plus, they noted, separating the sentencing phases “would unduly complicate the penalty phase, introduce significant risk of jury confusion and run counter to the court’s interest in judicial economy.”

Judge Colville ultimately agreed with the defense, ruling sentencing will be broken into two parts “in an abundance of caution.” He noted that while the court is not required to split the sentencing phase, it has the discretion to do so. 

US District Judge Colville's 14-page opinion granting the defendant’s "Motion to Trifurcate" is available here:

Download USA_v._BOWERS__Docket_No._2_18

Only three weeks now to US Sentencing Commission's first public hearing on its proposed guideline amendments

My long-standard status as a sentencing nerd is surely be debate, but I can make the case again when I admit that I got more than a bit giddy upon seeing this official notice from the US Sentencing Commission announcing its "Public Hearing on Proposed Amendments to the Federal Sentencing Guidelines."  Here are the deets:

Pursuant to Rule 3.2 of the Rules of Practice and Procedure of the United States Sentencing Commission, a public hearing is scheduled for Thursday, February 23 and Friday, February 24, 2023 to commence at 9:00 a.m. (ET) on both days.

The public hearing will be held in the Mecham Conference Center in the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, NE, Washington, DC. The hearing will be streamed live below.

The purpose of the public hearing is for the Commission to receive testimony on proposed amendments to the federal sentencing guidelines related to Compassionate Release, Sexual Abuse of a Ward, and Acquitted Conduct.

Because there are many more issues covered in the USSC's proposed amendments, and because the comment period runs through mid-March, I suspect these scheduled two days of public hearings are just the first of what may be a series of hearings. How exciting.

A few of many prior recent related posts:

• At long last, we have a fully loaded USSC: Senate confirms all seven of Prez Biden's nominees to Sentencing Commission 
• US Sentencing Commission reports receiving "more than 8,000 public comment submissions pertaining to proposed priorities"
• US Sentencing Commission finalizes its policy priorities for for the 2022-2023 amendment year 
• Latest issues of FSR providing new advice to a new US Sentencing Commission (and lots more) 
• Gearing up for a new federal sentencing year that might finally bring some new guideline amendments 
• Timely new CRS review of US Sentencing Commission's guideline amendment process and plans 
• US Sentencing Commissions publishes proposed guideline amendments and issues for comment 

Texas completes in second execution of 2023

As reported in this AP article, "Texas on Wednesday executed an inmate convicted of fatally shooting a Dallas police officer nearly 16 years ago after a high-speed chase." Here is more:

Wesley Ruiz, 43, received a lethal injection at the state penitentiary in Huntsville, Texas, for the March 2007 killing of Dallas Police Senior Corporal Mark Nix....  Nix, 33, a U.S. Navy veteran of Operation Desert Storm, had been on the Dallas force for nearly seven years and was engaged to be married when he was killed....

Ruiz was the second inmate put to death this year in Texas and the fourth in the U.S.  Seven other executions are scheduled in Texas for later this year, including one next week....

The U.S. Supreme Court earlier Wednesday declined an appeal from Ruiz’s attorneys to halt the execution.  The defense had argued that jurors relied on “overtly racist” and “blatant anti-Hispanic stereotypes” in appraising whether Ruiz posed a future danger, an element needed to secure a death sentence in Texas. Ruiz was Hispanic....

Ruiz was one of five Texas death row inmates who sued to stop the state’s prison system from using what they allege are expired and unsafe execution drugs.  Despite a civil court judge in Austin preliminarily agreeing with the claims, the state’s top two courts allowed one of the inmates who had been part of the litigation to be executed on Jan. 10....

Gabriel Luchiano, who knew Nix when he worked as a security guard, said the officer always responded quickly when people needed help at the convenience store in northwest Dallas where Luchiano worked.  He was a “guardian angel,” said Luchiano. “It’s still painful no matter what. Nothing is going to close it.”

"Criminal Proof: Fixed or Flexible?"

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

Should we use the same standard of proof to adjudicate guilt for murder and petty theft?  Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law.  This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes.  I reject consequentialist arguments for a radically flexible standard of proof, instead defending a modestly flexible approach on non-consequentialist grounds.  The system I defend is one on which we should impose a higher standard of proof for crimes that attract more severe punishments.  This proposal, although apparently revisionary, accords with a plausible theory concerning the epistemology of legal judgments and the role they play in society.

New Massachusetts bill provides sentence reductions for when "incarcerated individual has donated bone marrow or organ(s)"

The comments to this blog have been, as the kids like to say, "on fire" lately.  And I suspect and hope lots of different folks will have lots of different opinions to share (respectfully) about a new bill introduced in The 193rd General Court of the Commonwealth of Massachusetts.  Specifically, as reported in this Insider article and detailed in the bill available at this link, some legislators in Massachusetts have introduced a proposal that provides a notable new way for incarcerated individual reduce a term of imprisonment.  The headline of the press piece notes the essentials: "A proposed Massachusetts bill would give inmates up to a year off their sentence — if they donate their organs."  Here are more of the particulars:

Forget sentence reductions for good behavior: With a proposed bill making its way through the Massachusetts legislature, inmates could receive up to a year off their jail sentence by donating their organs.

Bill HD.3822, called the "Act to establish the Massachusetts incarcerated individual bone marrow and organ donation program," would allow eligible incarcerated people to receive no fewer than 60 but no more than 365 days off their sentences for donating their marrow or organs. It has not passed through the Massachusetts House of Representatives.

The act, if passed, would create a five-person panel to oversee the implementation of the program, made up of two Department of Corrections officials, an organ donation specialist from a state hospital, and two advocates focusing on organ donation and prisoners' rights. The panel would determine eligibility standards and file reports of annual donations and "estimated life-savings associated with said donations." "There shall be no commissions or monetary payments to be made to the Department of Correction for bone marrow donated by incarcerated individuals," the proposed text reads....

State Rep. Judith Garcia, one of the co-sponsors, explained the proposal with an infographic on Twitter, saying the Massachusetts organ donation waiting list has nearly 5,000 people on it, disproportionately impacting Black and Hispanic residents, with no existing path to organ donation for incarcerated people, even if a relative were in need of a donation. The bill would "restore bodily autonomy to incarcerated folks by providing opportunity to donate organs and bone marrow," the graphic read.

"It seems like something out of a science fiction book or horror story," Kevin Ring, president of the nonprofit organization Families Against Mandatory Minimums, told Insider. "It's just this sort of idea that we have this class of subhumans whose body parts [we] will harvest because they're not like us or because they're so desperate for freedom that they'd be willing to do this."

Ring, a former lobbyist who served 20 months in federal prison on public corruption charges as part of the Jack Abramoff lobbying scandal, said he would have considered doing anything to reduce his sentence while he was incarcerated, making the whole thing feel like a coercive idea that "preys on that desperation." "In most state systems, you earn good time credits from participating in programming that is intended to reduce your risk of reoffending, so those things make sense," Ring said, listing examples like drug treatment programs and job training to show initiative and work toward rehabilitation. "Those are things that are at least connected, relevant, to releasing them early. This one seems like it's not, though and it just begs the question, like, how about two years off for a limb, for an amputee? What's going on here? It's dark."

In an email sent to Families Against Mandatory Minimums and reviewed by Insider, a cosponsor of the bill, State Rep. Carlos Gonzalez, told Ring the legislation would "only establish support to those incarcerated and provide guidelines, clarity, and transparency for a potential life-saving voluntary deed."...

Prisoners' Legal Services of Massachusetts, a legal aid group, said in a statement to Insider that the intent behind the bill made sense to try to address issues of racial inequity and the need for organ donation, but didn't appear to be a comprehensive solution due to the risk of coercion....

Ring told Insider he doesn't think it's likely the bill will become law, given an especially negative response to it on social media. "We're in the criminal justice movement, we appreciate that people make mistakes," Ring told Insider. "I can't believe these people are some sort of Frankenstein monsters, I think they just goofed. They're probably well-intentioned, but it's just a disastrous idea."

I am eager to hear all sorts of comments any aspects of this bill, but my first question is whether anyone thinks this proposal would be unconstitutional. I suspect lots of folks may have strong thoughts about whether this bill is good or bad policy, but I would be interested to hear if anyone have a strong constitutional take as well.

"Joe Biden Hasn’t Kept His Promise to Reduce the Prison Population"

The title of this post is the title of this new opinion piece in the Daily Beast authored by Nazgol Ghandnoosh and Bill Underwood.  Here are excerpts:

For thousands of people in federal prisons and their loved ones, the last session of Congress ended on a heartbreaking note.  Despite high hopes and bipartisan support for several sentencing bills, Congress failed to pass any meaningful reform during 2022.

That repeated failure — coupled with the Bureau of Prisons’ refusal to make adequate use of compassionate release, and President Joe Biden’s limited use of executive clemency — has translated into the federal prison population increasing for the past two years (after nearly a decade in decline), despite the president’s promise to cut it by half.

This year, Congress must do better.  It’s time to pass the EQUAL Act, the First Step Implementation Act, and the COVID-19 Safer Detention Act.

We know firsthand the profound need for sentencing reform.  One of us served 33 years of a life sentence in federal prison before receiving compassionate release.  The other is a sentencing researcher who has documented the growth and harms of lengthy prison sentences. We’ve lived and studied the dramatic rise in the federal prison population and we know the urgency of finding solutions.

Federal prisons imprisoned 25,000 people in 1980.  Today, they imprison more than six times that — nearly 160,000 people. (Fortunately, today’s count does represent a 27 percent reduction from 2013, when the population was at its peak of 219,000 people.)

The past decade of legislative reforms and policy changes, amplified during the early pandemic, have downsized federal prisons. But in the absence of new reforms by Congress and bold action by the administration, the federal prison population has grown again for the past two years.

Sad accounting of 150-year prison term for child-porn possession after 3-year plea deal had been offered

The Miami Herald has this extended and sad review of an 150-year state sentence imposed on a person with schizophrenia who possessed child pornography.  The case provide an example of the "trial penalty" and all sort of other factors that can contribute to extreme prison terms.  The piece is headlined "‘Extreme injustice’: Homeless man with untreated schizophrenia fights 150-year sentence."  I recommended the lengthy article in full and here are excerpts:

The crime that Jared Stephens committed is not in dispute.  The question is whether he should die in prison for it.

On a stormy September day in 2016, Stephens — a former wrestler at Arizona State University who became homeless after years of untreated schizophrenia — walked into a Best Buy in Sweetwater.  He snatched a $399.99 laptop, stuffed other merchandise totaling $157.96 into a brown Publix tote bag and tried to walk out without paying.

Confronted by employees, he resisted, then pulled his own laptop out of a backpack and did something extraordinarily irrational. “Look, I have child pornography!” he declared.  He was telling the truth. Stephens, then 25, marched in and out of the store with his laptop playing a video of child abuse, tilting his computer screen so it was visible to a surveillance camera, according to an arrest report.  He proceeded to lie down between two sets of sliding doors at the store’s entrance, perusing illicit images as shoppers flowed by, until police arrived and hauled him to jail.

That unhinged act sent Stephens on an odyssey through the criminal justice system, resulting in a sentence that has no parallel in local courts for a similar crime: 150 years in state prison — to be followed by a 120-day stint in the Miami-Dade County jail.  The sentence — handed down by Miami-Dade Circuit Court Judge Veronica Diaz in 2018, with a minimum of public explanation — was 147 years longer than the three-year term state prosecutors initially proposed in a plea deal and 129 years longer than the 21-year term the state asked for at sentencing.  It was also dozens of times greater than the typical sentence for possession of child pornography....

Stephens ... made outlandish claims in open court at his criminal trial, asserting he could command African armies and shut off electricity to Russia with the power of his mind.  He largely refused to talk to his lawyers, much less cooperate in his defense. Court-appointed psychologists diagnosed him with schizophrenia... He had also suffered his own shocking trauma as a child — a fact that went unmentioned at his sentencing because he never told his defense lawyers.  Fan Li, a private attorney now representing Stephens, said that courts are ill-equipped to handle people experiencing mental illness, leading to widespread “unjust prosecutions and sentences.”...

Stephens’ presumptive release date is July 4 — Independence Day — 2166, when he would be 175. He did not produce or distribute the illegal images, which would typically lead to a longer sentence.... Had he gone along with the state and accepted a plea deal when it was originally offered, he could have gotten just three years in prison, as well as treatment in a program for “mentally disordered sex offenders.”  That sentence would have been in line with those given to other, similar offenders, according to court documents submitted by his lawyers.

Instead, he chose to fight the case.  State prosecutors responded by upping the charges from one count of child porn possession — with a maximum of five years in prison — to 30 counts, with a maximum of 150 years, based on a forensic analysis that found a cache of illegal images on his computer.

Between 2000 and 2017, Miami-Dade judges decided that nearly one-third of defendants who, like Stephens, possessed child porn — without producing it or passing it around to others — should not be sent to prison, according to data from the Florida Department of Corrections.  Those sent to prison received a median term of three years, according to the data, which was submitted in a court filing by Stephens’ defense team.  Only one other local case resulted in such a lengthy sentence: Adonis Losada, a former performer on the longtime Univision show “Sabado Gigante,” received a 153-year term.  The trial for Losada was later ordered redone, resulting in a sentence slashed by two-thirds.

If you never tire of acquitted conduct talk, here is a podcast episode for you

In this post from the summer, I highlighted the great new podcast created by Doug Passon, a defense attorney and documentary filmmaker, called "Set for Sentencing."  Doug continues to produce a lot of terrific content each week, all posted at this archive.  I am  putting another plug for his efforts because I had the honor of appearing in his the latest episode, "PRESUMED GUILTY: Using Acquitted, Dismissed, and Uncharged Conduct to Increase Sentences." 

Here is how Doug Passon sets up this nearly 90-minute podcast:

In a perfect world, the presumption of innocence is sacrosanct.  If you are found not guilty by a jury, common sense and the constitution dictate that acquitted conduct should not later be used to enhance your sentence on other charges.  But in federal court, it is not only possible, but commonplace to increase punishment based on acquitted, uncharged and dismissed conduct. The good news is, that might be changing soon.

Helping us get set for sentencing, Prof. Doug Berman and Mark Allenbaugh to talk about the proposed amendment to the United States Sentencing Guidelines on acquitted conduct. Prof. Berman is not only a federal sentencing expert, but wrote the Amicus brief for U.S. v. Daytona McClinton, an “acquitted conduct” case currently pending Cert. at the Supreme Court. Of course, we all know Mark Allenbaugh (www.sentencingstats.com) who completes what turns out to be an “all Allenbaugh January”.

Warning: this episode is not for the faint of heart. No, there’s no sex, drugs, or rock n’ roll. There are probably not even that many f-bombs dropped by Doug. It’s just a really, really, really deep dive into the inner machinations of our broken federal sentencing process. So strap in, and let’s get Set for Sentencing!

Prior related posts:

• New podcast for all sentencing fans (and especially defense attorneys)
• Another plug for a podcast for all sentencing fans (and especially defense attorneys) 

"Suffering Before Execution"

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

When condemned people suffer before their executions, does that suffering represent punishment?  I argue that it does not — at least not the suffering on American-style death rows.  American institutions instead administer pre-execution confinement as something closer to non-punitive detention, and I make several normative claims about what should follow from that status.  Among other things, a non-punitive paradigm entails thicker constitutional constraints on solitary confinement and unsafe living conditions.  It also represents a novel solution to a challenging doctrinal puzzle involving confinement, execution, and the Eighth Amendment.

To understand why pre-execution confinement is nonpunitive, readers need a basic understanding of the experience itself.  Most death-sentenced people will lead lives marked by some substantial combination of inadequate nutrition, deficient health care, substandard sanitation and ventilation, restricted movement, and excessive isolation.  On average, those whom the state kills will have spent about twenty years in such conditions — up from two years in 1960.  The distribution of this suffering across the death-sentenced prisoner cohort bears little relationship to criminal blameworthiness.  Almost without exception, however, scholarship and decisional law continue to treat confinement before execution as punishment.

That assumption is unjustified as a matter of penal theory, for two reasons.  First, confinement before execution does not meet consensus criteria for punishment.  It is instead suffering that is collateral to an incapacitation interest. Second, if pre-execution confinement were to be taken seriously as a punitive practice, then it would be normatively unjustified.  More specifically, punitive confinement would represent punishment beyond the legally specified maximum (an execution), and it would distribute that punishment across the death-sentenced prisoner cohort arbitrarily.

There is a reasonably well-developed body of constitutional law capable of absorbing a shift in the status of pre-execution confinement.  On that constitutional law, when the state detains people primarily to incapacitate them, that detention is preventative, not punitive.  Due process, rather than the Eighth Amendment, constrains such preventative detention. A nonpunitive approach would reduce suffering because the constitutional rules contain different, more stringent constraints on pre-execution confinement.  Such an approach would also give the Supreme Court satisfactory answers to difficult Eighth Amendment questions that have eluded it for quite some time.

Effective coverage of compassionate release challenges at the state level

Since the First Step Act made it much easier for federal prisoners to get their motions for sentence reductions before judges, discussion and debate (and litigation) over the federal approach to so-called compassionate release has been robust.   And, on-going consideration by the US Sentencing Commission of changes to its guidelines for these sentence reductions ensures that the federal debate will remain robust for the foreseeable future.

But, helpfully, the folks at Bolts have been doing the important work of making sure we do not lose sight of how these sorts of issues play out in state prisons systems.  Most recently, Bolts published an extended piece on these topics focused on Oregon, and it has published prior pieces focused on California and New York.  Here are the extended headlines of these pieces, along with links:

By Piper French, "In Oregon’s Prisons, Terminally Ill People Are Left with Little Recourse: Proposed legislation would ease the extraordinarily difficult road that incarcerated Oregonians face in securing compassionate release."

By Piper French, "California Passes Bill to Expand Prison Releases for Terminally Ill People: Few people leave prison under California’s compassionate release program, but a new measure could allow more incarcerated people to live out their final days at home."

By Victoria Law, "Prison Officials Routinely Deny Hearings to Terminally Ill New Yorkers: The frequent refusal to send medical parole cases to the state board has frustrated advocates and raises questions about the murky criteria preventing most sick people from making their case."