Sentencing Law and Policy

Feds praised Caroline Ellison's cooperation while refusing to sugegst any specific sentence when federal guidelines recommend LWOP

In this recent post, I flagged the upcoming sentencing of Caroline Ellison as an interesting high-profile case in which the federal sentencing guidelines call for an LWOP sentence, but the presentencing report recommended only "time served with three years of supervised release."   Yesterday the feds weighed in without a specific sentencing recommendation, but signaling her cooperation called for quite a sentencing reward.  This New York Times piece provides these details:

Caroline Ellison, a close colleague of the disgraced cryptocurrency mogul Sam Bankman-Fried, provided “extraordinary cooperation” to the government, federal prosecutors said on Tuesday, signaling that she should receive a lenient sentence for her role in the sweeping fraud that led to the collapse of the FTX crypto exchange.

Ms. Ellison, 29, who was also Mr. Bankman-Fried’s on-and-off girlfriend, pleaded guilty to fraud shortly after FTX collapsed in November 2022, alongside two other members of his inner circle. In a court filing this month, Ms. Ellison’s defense lawyers asked the judge overseeing the case, Lewis A. Kaplan, to sentence her to three years of supervised release, with no prison time.

In the government’s filing on Tuesday, prosecutors did not recommend a specific sentence to the judge but pointed out that her cooperation was “not only substantial, but exemplary.” Ms. Ellison was the star witness at Mr. Bankman-Fried’s trial last fall in federal court, where she spent nearly three days on the stand.  She described an incriminating spreadsheet that Mr. Bankman-Fried had used to mislead business partners and recounted the final days of FTX, holding back tears as she delivered some of the trial’s most emotional testimony.

Mr. Bankman-Fried was convicted of a sophisticated fraud that siphoned $8 billion from customer accounts to finance venture investments, political donations and other spending. He was sentenced to 25 years in prison in March.  Judge Kaplan is set to decide Ms. Ellison’s sentence in federal court in Manhattan on Sept. 24.

“In her many meetings with the government, Ellison approached her cooperation with remarkable candor, remorse and seriousness,” the prosecutors wrote in their 14-page memo to Judge Kaplan.  “And she persevered despite harsh media and public scrutiny and Bankman-Fried’s efforts to publicly weaponize her personal writings to discredit and intimidate her.”...

In their sentencing memo, Ms. Ellison’s lawyers detailed the often-stormy romantic relationship between their client and Mr. Bankman-Fried.  For years, they wrote, Ms. Ellison was effectively in his thrall, living in a social “bubble” centered on Mr. Bankman-Fried. At his suggestion, Ms. Ellison started taking Adderall so that she could work longer hours, the memo said. Mr. Bankman-Fried initially “suggested their liaison would develop into a full relationship,” the lawyers wrote.  “But after a few weeks, he would ‘ghost’ Caroline without explanation.”...

Since pleading guilty, Ms. Ellison has struggled to find paying work, according to her lawyers’ memo. She was turned down for a job with a charity that promoted math education for young women.  At one point, she secured a position helping low-income families prepare tax returns; a couple of weeks later, she was asked to leave after the employer realized who she was, according to a letter from her aunt that was filed with the sentencing memo.

Ms. Ellison has volunteered for more than 700 hours with community organizations, teaching adult literacy classes and fostering rescue dogs, the memo said.  She is working with her parents, who both teach at the Massachusetts Institute of Technology, on a math enrichment textbook for advanced high school students, and has written a novella set in Edwardian England.

A few prior related posts:

• Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"
• Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried
• Sam Bankman-Fried sentenced to 25 years in federal prison for his FTX frauds
• For executive connected to FTX collapse (and Sam Bankman-Fried's girlfriend), federal guidelines call for LWOP, but probation office recommends time served

US Sentencing Commission releases new report on "Cyber Technology in Federal Crime"

The US Sentencing Commission today released this notable new research report titled "Cyber Technology in Federal Crime."  This latest report is introduced on this USSC webpage, which also sets forth "Key Findings" along with some interesting graphics.  Here is the main text from this USSC page:

There has been little analysis on the individuals sentenced for a federal offense who used cyber technology for illegal purposes. In developing this report, the Commission collected information on individuals sentenced for offenses using cryptocurrency, the dark web, and hacking for fiscal years 2014 through 2021.  This report provides demographic and sentencing information for those individuals who used at least one of three types of cyber technology during their offenses — hacking, cryptocurrency, and the dark web — along with the types of offenses committed using these technologies.  The Commission analyzed this data to draw comparisons with all other federally sentenced individuals between fiscal years 2014 and 2021 who did not use these technologies....

Key Findings

Between 2014 and 2021, 2,590 sentenced individuals used at least one of three types of cyber technology — hacking, cryptocurrency, and the dark web — in connection with a federal offense, and the number increased substantially during the time studied from 2014 to 2021.  However, this number represented less than one percent of the total federal caseload....

Individuals who used cyber technology in their offense were more likely to be White, male, younger, and have completed at least some college than other sentenced individuals.

• Over two-thirds (68.6%) of individuals who used cyber technology in their offense were White, compared to 21.5 percent of other sentenced individuals.
• While 94.0 percent of those who used cyber technology were male, 86.8 percent of other sentenced individuals were male.
• Almost a quarter (22.4%) of individuals who used cyber technology had a college degree, compared to 5.8 percent of other sentenced individuals.

Individuals who used hacking, cryptocurrency, or the dark web in their offense had less criminal history than individuals who did not use cyber technology in the commission of a federal crime.  Less than half of other sentenced individuals were in Criminal History Category (CHC) I, the lowest category.

The most common offenses committed by individuals who used cyber technology in their offense were child pornography (28.9%), fraud (27.5%), drug trafficking (20.6%), and money laundering (8.9%).

Making the case that "Biden Needs to Work on His Clemency Legacy"

The quoted portion of the title of this post is the headline of this New York Times commentary authored by Rachel Barkow and Mark Osler.  I recommend the piece in full, and here are excerpts:

End-of-term clemency chaos has become an unfortunate presidential tradition, as presidents scramble after ignoring this crucial power for most of their time in office. That is how we ended up with Bill Clinton unloading 140 pardons on his last day in office, including one to the wholly undeserving Marc Rich, a fugitive financier; George W. Bush wrecking his relationship with Dick Cheney by refusing at the last minute to give a full pardon to Scooter Libby, Mr. Cheney’s chief of staff, for obstructing a federal investigation; and Donald Trump issuing pardons to undeserving cronies and celebrities.

Mr. Biden has granted 25 pardons and commuted the sentences of 131 other people, according to the most recent Justice Department data. That is a mere 1.4 percent of the petitions he has received, based on our analysis. No modern U.S. president, going back to Richard Nixon, has had a rate so low; though of course, Mr. Biden is still in office.

In addition, he has granted pardons by proclamation to people convicted of the possession and “simple use” of marijuana on federal lands and in the District of Columbia, and to about 2,000 veterans who were convicted of engaging in gay sex under a military code that outlawed the behavior for more than 60 years. (Pardons by proclamation to a class of people are not included in Justice Department data.)...

Hopefully, Mr. Biden will avoid the missteps made by some of his recent predecessors (particularly by Mr. Trump) and focus on the pending petitions filed by people who followed the rules and submitted them through official channels. If there is a petition at the White House with a positive recommendation, it should be granted without further deliberation. It has already run a gauntlet of review that included the U. S. attorney for the district where the petitioner was convicted, the U.S. Deputy Attorney General, the staff at the Domestic Policy Council and the White House counsel. Isn’t that review enough?

Recent related post from MLP&R:

• Making the case to Prez Biden with candidates for cannabis clemency

"County-level jail and state-level prison incarceration and cancer mortality in the United States"

The title of this post is the title of this intriguing new article from multiple authors just published in the Journal of the National Cancer Institute. Here is its abstract:

This study examined the association of county-level jail and state-level prison incarceration rates and cancer mortality rates in the United States.  Incarceration rates (1995-2018) were sourced from national data and categorized into quartiles.  County- and state-level mortality rates (2000-2019) with invasive cancer as the underlying cause of death were obtained from the National Vital Statistics System.  Compared with the first quartile (lowest incarceration rate), the second, third, and fourth quartiles (highest incarceration rate) of county-level jail incarceration rate were associated with 1.3%, 2.3%, and 3.9% higher county-level cancer mortality rates, respectively, in adjusted analyses.  Compared with the first quartile, the second, third, and fourth quartiles of state-level prison incarceration rate were associated with 1.7%, 2.5%, and 3.9% higher state-level cancer mortality rates, respectively.  Associations were more pronounced for liver and lung cancers.  Addressing adverse effects of mass incarceration may potentially improve cancer outcomes in affected communities.

Not-quite mid-week round up of stories and commentaries of note

I have a whole bunch of tabs open on my desktop with whole bunch of notable pieces that have caught my eye recently.  That means it is time for a round up, so here goes: 

From ABC News, "Texas lawmakers show bipartisan support to try to stop a man's execution"

From the AP, "Alaska High Court Lets Man Serving a 20-Year Sentence Remain in US House Race"

From Forbes, "Bureau Of Prisons’ Issues With First Step Act Lead To Food Strike"

From Governing, "Murder and Population Decline: A Troubling Urban Linkage"

From The Marshall Project, "Could People Facing the Death Penalty Lose the Right to Tell Juries Their Life Stories?"

From the New York Times, "Nixon Started the War on Drugs. Privately, He Said Pot Was ‘Not Particularly Dangerous.’"

From NPR, "From Clinton to Trump, how talk about crime has changed since a landmark bill"

From Politico, "California Democrats try to change the subject from shoplifting to drugs"

From Prison Journalism Project, "In Prison and Out, We Have Never Voted"

From Reason Foundation, "Today’s legislative addiction to criminalization feels like déjà vu"

Notable state court ruling finds violation of Iowa Constitution prosecuting gun possession by "nonviolent drug-offense felons"

In the wake of Bruen and Rahimi, I have primarily sought to follow federal Second Amendment litigation over various provisions of federal criminal gun dispossession laws.  But a kind reader has sent me a notable new state court ruling on this topic, Iowa v. Dickson, No. FECR020524 (Iowa D. Ct. Sept. 13, 2024).  The full ruling, which can be downloaded below, runs a full 31-pages and covers lots of state and federal law.  Here are a few excerpts which highlight why its merits a full read:

This Court ... generally finds [persuasive] the historical analysis set forth in a dissenting opinion by then-Judge Barrett in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019).... [showing] that history does not support a conclusion that a legislature may disarm all felons — violent and nonviolent alike — merely on account of their status as felons.  But this Court is not convinced that the historical evidence discussed in Jackson and then-Judge Barrett's dissent in Kanter is really best read as establishing the principle that a legislature may, consistent with the right to keep and bear arms, prohibit the possession of arms by all of the members of any group which the legislature, constrained only by its own discretion, deems to be dangerous.

The Court's doubt about the conclusion is based in part on common sense.  If that broad reading of the principle reflected in the historical evidence is correct, then, for example, Congress presumably could pass a statute categorically prohibiting all persons who are not members of the military or sworn peace officers from keeping and bearing arms, and so long as that statute contained a statement declaring that the law arose from Congress's conclusion that persons other than members of the military and sworn peace officers are too dangerous to possess firearms, the prohibition would be constitutional under the Second Amendment.  It seems to this Court exceedingly unlikely that the right to keep and bear arms which the Second Amendment protects has ever been understood to permit firearms regulations of that kind, or to be consistent with a principle from which such a regulation could arise....

Accordingly, the Court is not persuaded that our General Assembly may, consistent with the right to keep and bear arms recognized in article 1, section 1A, disarm any category of individuals whom the General Assembly deems to be dangerous.  And the Court therefore concludes that the State has failed to carry its burden to "affirmatively prove that" § 724.26(1), as applied to nonviolent drug-offense felons like the Defendant here, "is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms." Bruen, 597 U.S. at 19....

The Defendant's prior felony convictions are for nonviolent drug distribution offenses.  Nothing about such offenses inherently raises a suspicion that a person who has committed such offenses is a threat to public safety.  And the State has produced no evidence suggesting that one convicted of such offenses is likely to be violent or dangerous.

Accordingly, the Court is unable to conclude that that § 724.26(1), to the extent that it disarms nonviolent felons like the Defendant, is narrowly tailored to serve a compelling government interest.  And as such, the Court concludes that § 724.26(1) is unconstitutional as applied to the Defendant, under article 1, section 1A of the Iowa Constitution.

Download Order granting motion to dismiss filed 9-13-24 Iowa v. Dickson 922g

Any recommendations for Amendments needing SCOTUS attention on this Constitution Day?

In this post on this day 15 years ago, I used the occasion of Constitution Day to encourage discussion of parts or provisions of the Constitution that seem under-appreciated.  That post and its comments were amusing to review for various reasons, and I figured today might call for a variation on that theme.  Specifically, with the Supreme Court's new Term just a few weeks away, I wonder if anyone might be eager to flag some Amendments that they wish SCOTUS would give some more attention.

As I have noted before, in recent X/Twitter postings, Orin Kerr has bemused and on-going hand-wringing about the fact that the Supreme Court has now completed "three straight Terms of deciding no Fourth Amendment cases."  To make him happy and for other good reasons, I would certainly like to see SCOTUS get back to giving attention to various aspects of the Fourth Amendment's application in our modern digital age.  And, of course, regular readers know that the Fifth and Sixth Amendment issues implicated by acquitted conduct sentencing are matters that I consider long overdue for more Supreme Court attention.  The Eighth Amendment got some attention in the Grants Pass case last Term, but in a quirky setting, and I can never get enough of the Justices' explanation of the limits of the Cruel and Unusual Punishments Clause.

In a post here a few months ago, I noted Kent Scheidegger's insightful lament about the "high court’s apparent lack of interest in the constitutional criminal procedure cases that once made up a large part of its docket."  In that post, I set out my theory that some of the conservative current Justices may be fearful about where their originalist inclinations could take them in the constitutitional criminal procedure cases that used to be a mainstay of the SCOTUS docket.  The quick "evolution" from Bruen to Rahimi, as well as the continued churn in lower courts over the new originalist turn in Second Amendment jurisprudence, is a clear indication that forging new originalist jurisprudence in the criminal law arena creates considerable uncertainty (and fuels all sort of new litigation by convicted persons).  That also proved the (still on-going) story surrounding the originalist Sixth Amendment turns from Crawford and Blakely two decades ago.

With the long conference just weeks away, I hope there are all sorts of juicy constitutional criminal cases in the works for the coming SCOTUS Term.  Especially for a law professor, it is always "good for business" when various constitutional amendments get some more attention.  But perhaps folks might have thoughts in the comments about where they would like to see the Justices' focus more time and attention.

A couple older and newer prior related posts:

• Seeking input on the most under-appreciated part of the US Constitution
• Not quite original(ist) musings on SCOTUS showing little interest in constitutional criminal procedure cases 

Notable and high-profile example of second-look sentencing reduction in Colorado

Regular readers know I am a fan of second-look sentencing mechanisms, and I was thus intrigued to see this press report out of Colorado seeming to involve a notable sentence reduction in a notable high-profile state case.  Here are the details:

A judge in Adams County District Court on Friday wiped away the 5-year prison sentence being served by a former Aurora paramedic convicted in the death of Elijah McClain.  Judge Mark Warner vacated Peter Cichuniec’s prison term and converted the sentence to four years of probation, a move prosecutors previously said would “undermine the jury’s verdict” in the case.  “The court finds, really, there are unusual and extenuating circumstances and they are truly exceptional in this particular case,” Warner said during a brief hearing.

Cichuniec, 51, was convicted of criminally negligent homicide and assault by drugging in the 2019 killing of McClain, a 23-year-old Black man who died after Aurora police put him in a neck hold and a paramedic injected him with an overdose of the sedative ketamine.  Cichuniec was supervising the paramedic who injected the drug. He was the only one of the three people convicted on charges stemming from McClain’s death to be sent to prison.

Warner in March sentenced Cichuniec to five years in prison — the mandatory minimum prison time required under Colorado law for the assault conviction — but Cichuniec in June asked the judge to reduce the length of the sentence on the grounds that his case involves “unusual and exceptional” circumstances.

State law allowed Warner to reduce the mandatory minimum prison sentence after Cichuniec spent at least 119 days in prison and after the Colorado Department of Corrections assessed Cichuniec’s risk level and reported back to the judge, which both happened.

Prosecutors opposed Cichuniec’s request, writing in a court filing that lowering Cichuniec’s sentence would be against the interests of justice.  They noted that it is rare for mandatory prison sentences to be reduced under the exception in state law that Cichuniec claimed, with just 203 sentences modified under the statute between 1977 and June 2024....

As he issued his ruling, Warner commented on Cichuniec’s lack of prior criminal history, rehabilitative potential, good character and his prior “pro-social” history, as well as his overall role in the events that led to McClain’s death — Cichuniec was the highest-ranking paramedic at the scene, but was most directly responsible for “the logistics of the call and safety of others involved,” Warner said....

Warner noted as he ruled Friday that Cichuniec needed to make quick decisions that night.  “The court must also, and does today as well, look at the deterrence effect of the sentence,” Warner said.  “…For the most part, the court believes based on the issues that arose in this case, a deterrence effect has been really accomplished and there are unique circumstances to this case.”...

[Former paramedic Jeremy] Cooper and former Aurora police officer Randy Roedema were each convicted of criminally negligent homicide and sentenced to 14 months of work-release.  Two other Aurora police officers, Jason Rosenblatt and Nathan Woodyard, were acquitted by juries of all criminal charges in McClain’s death.

I do not know any of the particulars of Colorado sentencing law, but it seems the state has had a limited form of second-look sentencing in place for many decades. And yet the data reported in this article suggest that each year, on average, fewer than five sentences get modified pursuant to the applicable statute. These details are interesting in general, as is the application of the law in this case.

"Scrutinizing Sentencing"

The title of this post is the title of this notable new essay authored by Christopher Slobogin which was just posted to SSRN (and seems quite well timed right before we are to celebrate Constitution Day). Here is its abstract:

Physical liberty is the most fundamental of all constitutional rights.  Yet the Supreme Court has continued to employ rational basis review of criminal sentencing rather than ensure that prison sentences are narrowly tailored to meet a compelling state interest.  Properly scrutinized, mandatory sentencing regimes, extremely long sentences, and boilerplate parole and probation conditions would be unconstitutional.

US Sentencing Commission releases some more updated "Quick Facts" publications

Regular readers are now used to my praise for the US Sentencing Commission for continuing to release new sets of its terrific "Quick Facts" publications.  But ir remains the case that I cannot praise the USSC enough for producing these convenient and informative short data documents, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format."  IHere are the newest sets of postings by the USSC on the "Quick Facts" page from last week:

Offender Groups

• NEW Federally Sentenced Women (September 2024)

Sex Offenses

• NEW Child Pornography (September 2024)

Other Offenses

• NEW Robbery (September 2024)
• NEW National Defense (September 2024)

Should Alabama's next scheduled nitrogen gas execution be video recorded?

The question in the title of this post is prompted by this AP piece discussing litigation over the nitrogen gas execution scheduled in less than two weeks in Alabama.  Here are excerpts: 

The state of Alabama asked a judge Friday to deny defense lawyers’ request to film the next execution by nitrogen gas in an attempt to help courts evaluate whether the new method is humane.

The request to record the scheduled Sept. 26 execution of Alan Miller was filed by attorneys for another man facing the death penalty, Carey Dale Grayson. They are challenging the constitutionality of the method after Alabama carried out the nation’s first execution by nitrogen gas in January, when Kenneth Smith was put to death.

“Serious constitutional questions linger over Alabama’s nitrogen hypoxia protocol. To date, the only instance of a judicially sanctioned execution — that of Kenneth Eugene Smith — using nitrogen did not proceed in the manner defendants promised,” lawyers for inmate Carey Dale Grayson wrote. Grayson is scheduled to be executed in November with nitrogen gas.

Witnesses to Smith’s execution described him shaking on the gurney for several minutes as he was put to death by nitrogen gas. Alabama Attorney General Steve Marshall declared the execution was a “textbook” success. Attorneys for Grayson wrote that, “one way to assist in providing an accurate record of the next nitrogen execution is to require it be videotaped.”

The lethal injection of a Georgia man was recorded in 2011.  The Associated Press reported that video camera and a camera operator were in the execution chamber.  Judges had approved another inmate’s request to record the execution to provide evidence about the effects of pentobarbital.  A 1992 execution in California was recorded when attorneys challenged the use of the gas chamber as a method of execution.

The Alabama attorney general’s office on Friday asked U.S. District Judge R. Austin Huffaker, Jr. to deny the request. “There is no purpose to be served by the contemplated intrusion into the state’s operation of its criminal justice system and execution of a criminal sentence wholly unrelated to this case,” state attorneys wrote in the court filing.

"Plea Agreements and Suspending Disbelief"

The title of this post is the title of this new essay authored by Sam Merchant and available via SSRN. Here is its abstract:

This Essay explores the traditional view that judges exercise broad discretion at sentencing after Booker.  Around 98% of cases are resolved through guilty pleas, and at least 71% of those cases involve binding or nonbinding plea agreements, many of which stipulate to an exact sentence, guideline, or range. Parties sometimes collaborate to ensure that sentences fit within confabulated guideline ranges, and when a sentence falls within a guideline range, the U.S. Sentencing Commission never systematically collects data on the judge's reasons for the sentence.  The absence of meaningful data on judges' reasons for two-thirds of federal sentences prevents thorough analysis of whether those sentences fulfill the intended purposes of punishment.

This Essay contributes new data on plea agreements for sentences within guideline ranges and suggests that parties drive more of federal sentencing than previously acknowledged.  Judges' apparent complicity, particularly post-Booker, gives those sentences the cathartic gloss of Article III, maintaining a peculiar but potentially necessary framework of fictions in federal sentencing.

Did Justin Timberlake get a "sweetheart plea deal in drunk driving case"?

The question in the title of this post is prompted by the headline of this New York Post article discussing pop icon Justin Timberlake sentencing on Long Island yesterday.  Here are excerpts from the piece:

Justin Timberlake issued a groveling, court-ordered apology Friday for getting behind the wheel after downing drinks in the Hamptons. “This is a mistake that I made but I’m hoping that whoever is watching and listening right now can learn from this mistake,” said the former boy band heartthrob — who was ordered to deliver the public statement as part of a plea deal to a lesser violation in the case. “Even one drink — don’t get behind the wheel of the car.”

The “SexyBack” singer talked after pleading guilty in a Sag Harbor courtroom Friday to driving while alcohol impaired, which was a lesser charge than the DWI count he faced. The deal with prosecutors orignially only involved him making his public apology, but Justice Carl Irace said that was not enough and decided on his own to also sentence Timberlake to 25 to 40 hours of community service.

While its not clear when the work sentence will begin, the former NSYNC star delivered comments outside the courthouse after the hearing. During the three-minute address to the media, Timberlake admitted that while “I try to hold myself to a very high standard — this was not that.”...

Timberlake then emphasized a second time, that no one should drive even after having just one drink, urging people to look for any other transportation option after imbibing. “There’s so many alternatives,” he said. “Call a friend, take an Uber. There are so many travel apps. Take a taxi.”

In some sense, the local sentencing judge's decision to add a week's worth of community service to the sentence sugests he viewed the plea deal here as too lenient.  But I have no knowledge of what the sentencing norms are in New York courts for a drunk driving offense for a first offender.  This CBS News piece has a local lawyer asserting Timberlake did not het any special treatment:

Long Island defense attorney David Schwartz says with the plea agreement, Timberlake got treated like every other first-time offender. "The 90-day suspension is by statute, the $500 fine is by statute, and the judge threw on 25 hours of community service, which is completely normal," he said.

That CBS piece also has notable comments from the DA and a notable observer:

"Mr. Timberlake received the same treatment as any other defendant. Justice should be applied equally to all individuals, regardless of their wealth or celebrity status. Drunk and drugged driving is an extremely serious nationwide public safety issue," DA Ray Tierney said. "These drivers threaten the lives of random and innocent roadway users of every age, gender, ethnicity, and economic status. In 2024, with the prevalence and convenience of public transit and ride-shares, there is no excuse to get behind the wheel when you are impaired in any way."

The family of Boy Scout Andrew McMorris, who was killed by a drunk driver on Long Island in 2018, was inside the courtroom. "I do feel he was sincere, and I can only hope that his platform with everyone here will make a significant change," mom Alisa McMorris said. "This gives me hope that maybe the next generation will be the generation that ends drunk and impaired driving."

As I have articulated in the past in conjunction with other celebrity DUI sentencings, I think society's strong interest in educating and deterring potential drunk drivers might call for subjecting these offenders to more significant and/or creative alternative sanctions. Adding community service is a start, but why not require Timberlake, who is in the middle of a word tour, to make certain announcements discussing the dangers of DUI at his upcoming concerts?  I strongly share the hope that the "next generation will be the generation that ends drunk and impaired driving," but advancing that cause likely requires a lot more than a " groveling, court-ordered apology" from a societal icon.

"Beyond Problem-Solving Courts"

the title of this post is the title of this new paper on SSRN authored by Erin Collins.  Here is its abstract:

Problem-solving courts were borne out of a well-meaning experimentalist spirit, one that inspired judges to attempt to close the so-called “revolving door” to the courthouse by providing treatment instead of, or in addition to, incarceration. The problem-solving court movement is now more than thirty years old and the results of this experiment in court reform are underwhelming.  Viewed in the most favorable light, studies suggest that problem-solving courts can modestly reduce the likelihood that some court participants will be arrested or convicted again.  Meanwhile, the 40% to 60% of people who begin but do not complete problem-solving court programs often fare worse than they would have otherwise.

In this Article, I argue that it is time to stop trying to perfect problem-solving courts and to instead begin to close this door to the criminal courthouse altogether.  This will require some radical honesty about what these specialized courts do — and do not do — and the ways this punishment model creates unintended harms.  But this reckoning is also an opportunity to revive the experimentalist spirit that animated the earliest problem-solving courts and inspired judges to do things differently in the hopes of building a different future.  This Article ultimately is a call to envision new ways to provide services and opportunities that could help people thrive, and an invitation to open doors to new paths that avoid the system altogether.  In short, I argue that it is time to move beyond problem-solving courts.

New report details that persons with felony records have brought most gun litigation after Bruen changed Second Amendment law

In my very first post after reporting on the Supreme Court's 2022 landmark Second Amendment case, Bruen, I wondered on this blog "Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen?".  Two years later with lots and lots of lower court litigation and the follow-up SCOTUS case of Rahimi, it seems quite clear now the answer is "yes," felon-in-possession criminal gun prohibitions are "constitutional suspect," but the answer as to exactly whether and when they may be unconstitutional remains quite unclear.  The latest data point for these discussion comes from this new article from The Trace, fully headlined "More Than a Thousand Felons Have Challenged Their Gun Bans Since the Supreme Court’s Bruen Decision: The Trace reviewed more than 2,000 court cases that cited Bruen and found that no group has used the decision more often than people whose felony records bar them from possessing guns."  And here are some excerpts:

Bruen set off a wave of legal challenges to gun restrictions across the country, but no other group has taken to the courts as frequently as people with felony convictions, who are prohibited from possessing guns under a federal statute known as the felon gun ban.

The Trace reviewed more than 2,000 federal court decisions that cited Bruen over the past two years. More than 1,600 of them answered challenges to a wide variety of federal, state, and local gun laws — from assault weapons restrictions to bans on guns at the U.S. Post Office. The majority — some 1,100 — of the decisions included a challenge to the felon gun ban, making it the single most frequently contested statute by far.

At least 30 of the challenges to the felon gun ban have succeeded. While that ratio may seem small, it marks a stark departure from the past, when effectively none succeeded, and it shows that Bruen has cracked the longstanding consensus that people convicted of serious crimes may constitutionally be barred from gun ownership. 

Those decisions, albeit rare and frequently narrow, chart new legal pathways for other defendants and judges to follow, meaning that more people convicted of felonies could have their cases thrown out.  Over the past two years, judges have issued on average two Bruen-related rulings each working day, the majority of which have been on challenges to the felon gun ban. And the pace is increasing....

The sheer volume of Bruen challenges to the felon gun ban has the potential to gum up the legal system. Margaret Groban, a former federal prosecutor who focused on gun crimes and domestic violence cases, described the fallout as “a mess.”   “It does take up a lot of resources,” she said. “There are cases to prosecute, and then you spend all your time defending the cases that have already been prosecuted.”...

A felon in possession of a firearm is one of the most commonly charged federal crimes, according to the U.S. Sentencing Commission. In 2022 and 2023, more than 7,000 people with felony records were convicted of this crime — in the federal court system alone.  The majority of these defendants were Black....

“I represent a lot of kids who have never in their lives even fired a gun,” said Christopher Smith, a public defender in the Bronx. “But it’s a dangerous neighborhood.” His clients, he added, would rather be tried for carrying an illegal gun than killed for not having one to defend themselves. Bruen has shifted the legal strategy in gun possession cases, particularly for clients who had prior felony convictions, Smith said. “The biggest change is now we just write a different motion in gun cases, where we challenge on Second Amendment grounds.”

"An Empirical Exploration of a Jury Veto"

The title of this post is the title of this new paper available via SSRN authored by Stephen Henderson, Vanessa Edkins and Matthew Jensen. Here is its abstract:

Among the many contemporary dissatisfactions with American criminal justice are longstanding concerns relating to the scarcity of jury trials and the resulting lack of democratic oversight and control in the adjudicative process.  A novel solution has recently been proposed in the form of a ‘jury veto’: perhaps a jury could be empaneled, prototypically if not exclusively by defense request, that would be empowered to select between the judicially-imposed sentence and a prosecutorial and defense alternative.

We conduct the first empirical exploration of such a structure and find reason to believe it could lessen the disconnect between the American framing vision of citizen control and the current reality.  In particular, we find sentencing preferences different from prevailing norms and resilient to the form of conviction (i.e., guilty plea versus trial verdict), but predictably influenced by anchoring, framing, and adjustment. This suggests a veto could improve criminal adjudications but will require careful structure, and we describe how further study of both citizen pools and legal actors could continue to probe this novel device.

Highligthing again highlights of federal resentencing and broader second-look sentencing issues

In this recent post, I noted Adam Liptak's latest Sidebar column discussing federal compassionate release issues in conjunction with Judge Frederic Block's new book, "A Second Chance: A Federal Judge Decides Who Deserves It."  I was pleased to see today that David Lat now has this new substack post which gives even more attention to the book and Judge Block's work under the headline "This Federal Judge Calls For Giving Prisoners A Second Chance: Judge Fred Block, 90, continues to speak out about important issues facing the criminal-justice system."  I highly recommend the full post (including the footnotes), and here are a few excerpts:

What are the requirements for granting [a sentencing reduction under the First Step Act], known as “compassionate release”? The critical one is that the judge must find “extraordinary and compelling reasons” for doing so.

And what can constitute “extraordinary and compelling reasons”? It’s currently the subject of extensive litigation in district and circuit courts — which have issued conflicting rulings on multiple issues, making it likely that the U.S. Supreme Court will intervene....

If and when the justices get involved, I have a reading recommendation for them: A Second Chance: A Federal Judge Decides Who Deserves It.  In this engaging and enlightening new book, Judge Frederic Block of the Eastern District of New York presents readers with six defendants who filed motions for compassionate release in his court.  He asks us to reflect on whether we would reduce their sentences—then reveals how he ultimately ruled....

But as discussed in A Second Chance, and as Judge Block mentioned again when we spoke, federal prisoners constitute only about 10 percent of the total prison population in the United States.  The remaining 90 percent are in state prisons and local jails.  Judge Block believes that they too should be eligible for compassionate release — and describes his book as “my clarion call to all the states to follow Congress’s lead and enact their own First Step acts.”

The recommendation that all states create second-look sentencing mechanisms is, in my view, very well founded.  And I have been pleased to see various discussions of such a possibility in a few recent media pieces:

From Michigan, "Michigan Coalition Calls for Second Look Legislation to Alleviate Staffing Shortages in State Prisons"

From Nevada, "Committee to sponsor ‘second look’ bill that allows for reduction of lengthy prison sentences"

From New York, "After 17 Years in Prison, I’m a Different Person. Do Cases Like Mine Deserve a Second Look?"

Bureau of Justice Statistics releases "Criminal Victimization, 2023"

As discussed in this press release, the Bureau of Justice Statistics this morning released a new report titled "Criminal Victimization, 2023." Here is how the press release begins:

Data from the National Crime Victimization Survey (NCVS) indicate that in 2023, the rate of nonfatal violent victimization in the United States was 22.5 victimizations per 1,000 persons age 12 or older, which was similar to the 2022 rate of 23.5 violent victimizations per 1,000 persons age 12 or older.

This full report runs 36 pages and here is how it starts and the "highlights" listed on the first page:

In 2023, the rate of violent victimization in the United States was 22.5 victimizations per 1,000 persons age 12 or older, which was similar to the 2022 rate.  Violent victimization includes rape or sexual assault, robbery, aggravated assault, and simple assault.  The last three decades saw an overall decline in the rate of violent victimization, from 1993 (79.8 per 1,000) to 2023.  While the 2023 rate was higher than those in 2020 and 2021, it was not statistically different from 5 years ago, in 2019.

Similarly, the rate of violent victimization reported to police was consistent from 2022 to 2023 (10.1 per 1,000 persons).   The 2023 rate was higher than the 2020 (6.6 per 1,000) and 2021 (7.5 per 1,000) rates but was comparable to 5 years ago in 2019 and consistent with the overall downward trend since 1993 (33.8 per 1,000).

HIGHLIGHTS

• In 2023, there were 22.5 violent victimizations per 1,000 persons age 12 or older in the United States.
• The rate of violent victimization excluding simple assault for males decreased from 9.5 per 1,000 persons in 2022 to 6.9 per 1,000 in 2023.
• A smaller percentage of robbery victimizations that occurred in 2023 (42%) than in 2022 (64%) were reported to police.
• The percentage of motor vehicle thefts reported to police decreased from 81% in 2022 to 72%in 2023.
• About 9% of violent victimizations involved a firearm in 2023, similar to 2022.
• The percentage of persons age 12 or older who experienced at least one violent victimization declined from 1.51% in 2022 to 1.36% in 2023.
• A lower percentage of households were victims of burglary or trespassing in 2023 (1.01%) than in 2022 (1.12%).
• The rate of property victimization in urban areas increased from 176.1 per 1,000 households in 2022 to 192.3 per 1,000 in 2023.

Reviewing some elected offices that impact local, state and federal criminal justice system

Prison Policy Initiative has this new election-season briefing about criminal justice official titled "Mass incarceration is on the ballot: A guide to how 19 offices you may be asked to vote on can help end mass incarceration in America."  Here is how it gets started:

Election Day is right around the corner. While presidential campaigns get most of the attention from the news media, many lesser-known down-ballot races can have a much more dramatic impact on criminal legal system reform in America.

For voters interested in ending mass incarceration, we’ve put together a guide to the most common offices for which they will cast their ballots this November.  We also explore how those offices can make decisions to reduce the number of people behind bars, improve conditions in prisons and jails, and help turn the page on America’s failed experiment with mass incarceration.

It’s worth recognizing that there are significant differences in what an office might be called and its exact responsibilities from state to state and city to city, so readers should keep in mind that this might not be a perfect match for their area.  Additionally, it would be impossible to list all of the complex and far-reaching ways some offices influence the criminal legal system.  This guide focuses on the most common and consequential offices and responsibilities in this realm and is not intended to be all-encompassing.  With this guide, we aimed to give people a starting point for their research to better understand the roles and powers of the offices they’ll be asked to vote for.

Readers should use this guide to evaluate their candidates for office, press them to take clear stands on how they’ll use their position to improve the criminal legal system if elected and hold them accountable for those commitments once they take office.

"In the wake of Miller and Montgomery: A national view of people sentenced to juvenile life without parole"

The title of this post is the title of this new paper from multiple authors recently published in the Journal of Criminal Justice. Here is its abstract:

Objective

The movement to end mass incarceration has largely concentrated on people serving shorter sentences for non-violent offenses.  There has been less consideration for the 1 in 7 people in prison serving life sentences, overwhelmingly for violent offenses, including those serving juvenile life without parole (JLWOP).  Recent U.S. Supreme Court decisions result in a pressing need for data on second chance considerations for JLWOP.  This study tracks outcomes of the national population of juvenile lifers.

Data/methods

We cross-reference data to identify the JLWOP population at the time of Miller (N = 2904) to build a demographic profile and track resentencing, release, and mortality statuses. Statistics and data visualization are used to establish national and state-level baselines.

Results

Findings reveal more than 2500 individuals have been resentenced and more than 1000 have been released.  There is notable state variation in the number of JLWOP sentences, the extent to which JLWOP is still allowed, sentence review mechanisms, and percentage of juvenile lifers released.

Conclusions/implications

The present study provides an important foundation for subsequent work to examine equity in the implementation of Miller and Montgomery within and across states, and to study reentry of an aging population that has spent critical life stages behind bars.