Sentencing Law and Policy

A mid-summer morning's round-up before heading (mostly) off-line

Though it is not technically mid-summer, I am on a mid-summer trip that will leave me relatively little time for blogging for the rest of this week.  (In addition, when I have some spare time this week, there is a mid-summer classic and my favorite summer Open that will be drawing me to a screen other than my laptop.)  So, before I go largely off-line for a few days, here is a small round-up of some pieces that recently caught my eye.  And though she be but little, I hope she is fierce:

From Axios, "Most states OK charging inmates for own incarceration"

From Bolts, "This Illinois Reform May Bring Relief to Overworked Public Defenders"

From Governing, "What We Should Be Doing for the Children of the Incarcerated"

From The Hill, "Unlock America’s hidden entrepreneurs: Congress must pass the New Start Act now"

From The New Yorker, "Teaching Men Who Will Never Leave Prison"

From NPR, "Lower crime and birth rates mean America's prisons are emptying out"

From The Progessive Magazine, "Why So Many People At My New Jersey Prison Support Trump"

From Vital City, "How to Get Smarter About Fighting Crime"

Detailing a remarkable school-to-death-row pipeline in Florida

Recent decades has brought considerable concerns about so-called "school-to-prison" pipelines, a term meant to lament certain educational policies and practices that serve to enhance the prosepcts of some students being caught up in criminal justice systems. But this new Marhsall Project article take this story to a new level by documenting what seems to be a school-to-death-row pipeline in Florida. Here is the article's full headline: "Dozens of Teens Who Spent Time at Abusive Florida Reform School Ended Up on Death Row: Michael Bell, set to be executed Tuesday, is among at least 34 boys from the Dozier School later sentenced to death. Did abuse make them more violent?". I recommend the full piece, and here is how it gets started:

Eight years before a jury sentenced him to death for two murders and he confessed to three more, Michael Bell spent time at a Florida reform school so violent that the state later apologized for the abuse and paid millions to the victims.  The now 54-year-old Bell, who is scheduled to be executed on Tuesday, spent four chaotic months at the Arthur G. Dozier School for Boys in Marianna during 1986 and 1987 when he was 15.

Guards forced him to fight much larger boys at least six times, he said, taking cash bets from other Dozier employees on whether he would win.  They threw him face down on a cot in a squat building everyone called “the white house” and told him to grasp the headrail, while beating him with a leather strap until he bled. They shackled his arms and legs and left him in that position for hours.

Bell is among at least 34 boys who stayed at Dozier and another 16 sent to Okeechobee — a separate boys’ school with a troubled history — who ended up on Florida’s death row, according to a review by The Marshall Project.  At least 19 others, and possibly many more, went to prison for murder but were not sentenced to death.  Twenty-five of them killed when they were 15, 16, 17 or 18 — soon after departing the reform schools. Combined, men who attended Dozier and Okeechobee have killed at least 114 people.

Most people who are tormented in childhood do not become murderers, and it can be difficult to know why someone commits violence, experts say.  Some boys who went to Dozier likely would have committed murders regardless of the trauma they suffered at the reform school.  But research shows that childhood and adolescent abuse does affect brain development and can make people more violent.

Bell and other men sent to Dozier around the same time described to The Marshall Project a culture of fear, a foreboding that escalated at night when older boys stole in through the windows and beat up or sexually abused younger ones.

Dr. George Woods is a neuropsychiatry specialist in California who offered expert testimony in the 2010 case of another death row inmate sent to Dozier as a child. Woods said the institution literally beat the humanity out of some boys, whittling away their value for human life. “Dozier helped make these boys killers,” he said.

New reporting from the New York Times on Prez Biden's out-going clemency actions

The New York Times has two notable new articles covering the controversies surrounding former Prez Biden's late-term clemencies and  compentencies.  Here are the pieces:

"Biden Says He Made the Clemency Decisions That Were Recorded With Autopen"

"Excerpts From The Times’s Interview With Biden on Clemency Decisions"

The first of these articles is quite lengthy and seems to have some original reporting, the second includes some notable quotes from former Prez Biden.  But I do not see much in either article that seems likely to defuse the partisan sparring over all the late clemency grants.

"Michael Tonry’s Contributions to Research Identifying and Explaining Racial Disparities in Sentencing"

The title of this post is the title of this article authored by Cassia Spohn in the June 2025 issue of the Criminal Law Forum. (As noted in this prior post, this journal issue is devoted to celebrating the work of sentencing guru Michael Tonry, and I will be flagging various individual articles from the issue in the weeks ahead).  Here is the abstract of Spohn's article:

Michael Tonry has made important contributions to research on sentencing, and especially to research examining racial and ethnic disparities in sentence outcomes.  The purpose of this paper is to describe two of the many ways in which Tonry’s ground-breaking research and scholarship transformed the landscape of empirical sentencing research. His influential books and articles documenting why “sentencing matters” encouraged sentencing scholars to evaluate the effects of the sentencing “reforms” enacted during the War on Crime and the War on Drugs, with a focus on determining whether these changes to sentencing policies and practices reduced sentence disparities.  Moreover, his critique of the War on Drugs and his argument that the war was being fought primarily in minority communities led to a substantial body of work on unwarranted disparities in sentencing for drug offenses.  These are indeed significant contributions.

Making the case for Governors to make greater use of clemency powers

This New York Times opinion piece, titled "Governors, Use Your Clemency Powers" and authored by Steve Zeidman, focuses on the need for states' chief executives to step up their clemency work.  The piece is worth a full read (though it focuses mostly on commutations and not pardons), and here are excerpts:

Clemency, specifically the power to commute a person’s sentence, is a readily available mechanism to rectify the hyper-punitive sentences regularly meted out in state courts during the past several decades that contributed to the crisis of mass incarceration.  The power in many state constitutions to grant clemency is one way to address the vast racial disparities that exist in state prisons....

Close to 90 percent of the two million people behind bars in the nation are held in state facilities, making the collective inaction by governors around clemency inexcusable.  In New York, where there are almost 33,000 people in state prisons, there is a backlog of almost 1,100 pending clemency applications awaiting action. A state government website focused on clemency states that applicants must “demonstrate that they have made exceptional strides in self-development and improvement.” 

Surely there are many people among those almost 1,100 who meet and even surpass that threshold — people who have acknowledged responsibility for the harm they caused, have done all they can to atone and have amassed vast evidence of transformation. In the past year, Gov. Kathy Hochul, a Democrat, granted a sentence commutation to just one person.  Across the Hudson in New Jersey, Gov. Phil Murphy, also a Democrat, created a clemency advisory board last year — and later granted several commutations — after failing to grant even a single clemency application in his first seven years in office....

Many state prison officials also know that granting clemency makes for a safer and more productive prison environment for all, prisoners and correction officers alike. When clemency is a real option, people in prison have something clear to strive toward.  There are cost savings for taxpayers after each incarcerated person is released — and many then go on to become taxpayers themselves.  Once home, those granted clemency can become mentors to young people and help rebuild their families and communities.  Data shows over and over that the rate of recidivism is vanishingly low for those granted clemency after decades in prison.

Governors should use their power to release people who entered prison decades ago as teenagers, are elderly or ill, have earned college degrees and who regularly assist their peers in settings like hospice units and as mobility aides.  In my experience assisting in hundreds of clemency applications, these are the very sorts of people with pending clemency applications.  These are people deserving of mercy, forgiveness and grace.

The founding fathers and framers of the Constitution clearly viewed clemency as essential to the administration of justice, and yet many governors today set that aside in favor of political calculations.  The correct response to Mr. Trump’s misuse of clemency is not to complain or to attempt to block his actions, but rather to demand that governors who have similar powers use them on behalf of those who clearly warrant that measure of humanity.

"The Plain Solution to Federal Habeas"

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

Federal habeas is a mess.  The reason is the current doctrine’s myopic proceduralism: its obsession with limiting relief through stringent and Byzantine procedural rules.  This has transformed our system of federal postconviction review into an impassible thicket of procedure that forecloses merits review in even strong cases; ensnares everyone in difficult threshold questions; and delays dispositions.  Habeas today is thus unfair, opaque, and inefficient, and it fails to promote its own values: fairness, judicial economy, federalism, finality, anti-gamesmanship, and non-technicality.

How should we fix this problem? This article advances a solution based on “plain error” review (which allows correcting obvious, prejudicial errors where necessary to uphold the fairness, integrity, or public reputation of judicial proceedings).  Under this approach, habeas’ strict procedural rules would be replaced by flexible procedural “norms.” Plain error would then be applied to all habeas cases, and the procedural norms would be enforced holistically via plain error’s discretionary fairness/integrity/public reputation standard. In essence, the greater the deviation from procedural regularity, the more merits scrutiny courts would apply.  This would much more appropriately vindicate habeas’ purposes: it would improve fairness by ensuring merits review in all cases; foster judicial economy, finality, and federalism by giving judges tools to deny weak claims and enforce procedural normality without trudging through a procedural minefield; effectively prevent gamesmanship by imposing tailored penalties for strategic behavior; and eliminate technicality by returning discretion to judges.  It would, in short, create a much better habeas system.

Split DC Circuit panel upholds authority of Defense Secretary to reject plea deals with three 9/11 defendants for LWOP sentences

In the latest chapter of a long running saga, a panel of the DC Circuit today upheld the authority of then-Secretary of Defense Lloyd  Austin to withdraw from plea agreements with three of the 9/11 defendants.  The start of the majority opinion in In Re: United States of America , No. 25-1009 (DC Cir. July 11, 2025) (available here), starts this way:

Respondents Khalid Sheikh Mohammad, Walid Muhammad Salih Mubarak bin ‘Atash, and Mustafa Ahmed Adam al Hawsawi are being tried by military commission at the United States Naval Base in Guantanamo Bay, Cuba. They are each accused of participating in the planning and execution of the terrorist attacks on September 11, 2001, which killed 2,976 people.

At the end of July 2024, each Respondent offered, and the Convening Authority overseeing their cases accepted, pretrial agreements in which Mohammad, bin ‘Atash, and Hawsawi agreed to plead guilty, and the government agreed not to seek the death penalty. Ruling on Defense Motions to Schedule Entry of Pleas, United States v. Mohammad, Military Comm’ns Trial Judiciary No. AE 955J / AE 956J / AE 957I, at 7 (U.S. M.C.T.J. Nov. 6, 2024) (“Pretrial Agreement Order”). Each Respondent also promised, among other things, to withdraw certain motions filed in their criminal cases and to waive all waivable motions. On August 1st and 2nd — right after the Convening Authority signed the agreements — Respondents stayed silent during the questioning of a witness in a suppression hearing that went forward for a non-settling codefendant. On August 2nd, then-Secretary of Defense Lloyd J. Austin III withdrew from each of the agreements.

As relevant here, the military commission judge and the United States Court of Military Commission Review (“CMCR”) refused to recognize the Secretary’s withdrawal on the ground that Respondents had begun to perform under the contracts. The CMCR denied the government’s petition for writs of mandamus and prohibition. The military judge then scheduled the prompt entry of Respondents’ pleas. After the government’s request for a stay was denied, it asked this court to issue writs of mandamus and prohibition enforcing the Secretary of Defense’s withdrawal from the pretrial agreements and prohibiting the military judge from entering guilty pleas under the agreements.

While mandamus and prohibition are extraordinary forms of relief, they are warranted in this case. The Secretary of Defense indisputably had legal authority to withdraw from the agreements; the plain and unambiguous text of the pretrial agreements shows that no performance of promises had begun; the government has no adequate alternative remedy to vindicate its interests; and the equities make issuance of the writs appropriate. 

I expect the defendants to appeal this ruling to the full DC Circuit and also to the Supreme Court, but I do not expect there will be further review.  Then again, few cases get as high-profile or as consequential as this one, so maybe there will be a cohort of additional judges or Justices eager to do additional review.

Prior recent related posts:

• Federal prosecutions alert families that possible plea deals with 9/11 defendants may preclude death penalty 
• Federal prosecutors finalizes plea deals with three 9/11 defendants for LWOP sentences
• US Defense Secretary overrules GITMO overseer to revoke plea agreement with 9/11 defendants
• Rounding up a few major press pieces about revoked 9/11 plea deals
• Federal plea deals with three 9/11 defendants for LWOP sentences apparently revived by military judge

"When the Death Count Gets Higher": An Empirical Examination of Whether the Federal Courts of Appeals Have Authentically Enforced Atkins v. Virginia

The title of this post is the title of this new article now available via SSRN authored by Talia Roitberg Harmon, Michael L. Perlin, Maren Geiger, Lea Roitberg and Stacy Bielic. Here is its abstract:

The United States Supreme Court held in Atkins v. Virginia, 536 U.S. 304 (2002), that subjecting persons with intellectual disabilities to the death penalty violates the Eighth Amendment, as those with disabilities in areas of reasoning, judgment, and impulse control “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.”  Here the Court added: “Some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards.”  The Court has returned to this question on multiple occasions, clarifying that a determination of intellectual disability cannot be limited to a bare numerical “reading” of an IQ score (Hall v. Florida, 572 U.S. 701 (2014), and that state rules based on inaccurate and out-of-date medical standards are similarly unconstitutional (Moore v. Texas I, 572 U.S. 701 (2017); Moore v. Texas II, 586 U.S. 133 (2019)).  Scholars have written about counsel’s ability to understand the meaning of intellectual disability; the importance of cultural competency; the extent to which experts can adequately explain the meaning of intellectual disability in this context; the extent to which judges actually understand the meaning of expert testimony in this context, and perhaps most importantly, the extensive concerns about the “fear of faking” that were focused on by Justice Scalia in his dissent in Atkins.  Nonetheless, there has been little attention paid to the question of how lower courts have construed Atkins and its progeny, and to the extent to which Atkins has been more than a “paper victory.”

Here, we find that any relief under Atkins was only granted in 20 of the 152 cases in which substantive Atkins claims were raised and considered in these circumstances.  We discuss the Atkins case, and the significance of the post-Atkins cases referred to above (on the question of their reinforcement of some of Atkins' most important points).  We then look at the “pressure points” of post-Atkins litigation, to determine which have been of significance to the reviewing courts.  Then, we look at the actual decisions in all Federal circuits, and assess which (if any) of these “pressure points” seem to have had an actual impact on judicial decision making.  Next, we apply principles of therapeutic jurisprudence -- a legal school of thought that requires the legal system to treat all people with dignity and compassion, and ensure them authentically adequate counsel.  We sought to determine the extent to which courts deciding Atkins cases followed or ignored these principles.  Finally, we offer some conclusions to assist judges in deciding future cases that join this cohort as well as scholars who write about this important topic.

Interesting new request to parties from federal judge sentencing Sean "Diddy" Combs

This new ABC News piece reports that  the "judge who oversaw the trial of Sean 'Diddy' Combs has asked both sides in the case to provide him with sentencing information ahead of the scheduled October sentencing date."  Here is more:

Judge Arun Subramanian said on Wednesday that he “would find it helpful” to have information about sentences imposed on defendants who were solely convicted of transportation to engage in prostitution and who, like Combs, have no prior criminal history. The judge said he wants a joint letter from prosecutors and defense attorneys submitted to him by Sept. 1.

“No argument should be included in this letter.  The goal is for the parties’ subsequent sentencing submissions to address the cases identified in the September 1 filing, focusing on those that each side believes reflect sentences imposed for similarly situated defendants, if any.  The Court appreciates the parties’ assistance in identifying these cases, as this information is not presently available from the Sentencing Commission,” Subramanian said in his request.

It was my general understanding that federal district judges could make a request to the US Sentencing Commission to assemble this kind of information.  But it seems to me sound for Judge Subramanian to specifically ask the parties to assemble this information since any materials assembled indepenedently by the USSC would still get addessed (and possibly assailed) by the parties at some point in the sentencing process.

Prior related posts:

• You be the federal judge: what sentence for Sean "Diddy" Combs for two felony prostitution convictions?
• Noting just some of the challenges in the upcoming sentencing of Sean "Diddy" Combs 

Lots more notable new "Quick Facts" reports from US Sentencing Commission

The US Sentencing Commission in recent weeks has released a bunch more of its terrific "Quick Facts" publications.  As regular readers know, I find so very interesting all the these 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."  The newest set of postings by the USSC on the "Quick Facts" page cover a range of offenses and offenders:

• NEW Federally Sentenced Women 
• NEW Theft, Property Destruction, and Fraud
• NEW Aggravated Identity Theft 
• NEW Robbery 
• NEW Escape 
• NEW Child Pornography

Each of these short reports has a bunch of notable data points which serve as a reminder that the federal sentencing system is comprised of hundreds of distinctly interesting federal sentencing stories.

Highlights of some docket dynamics in first “ScotusCrim” column at SCOTUSblog

I am pleased to see the launch of a new column at SCOTUSblog, being called "ScotusCrim" and being authored by Rory Little to focus "on intersections between the Supreme Court and criminal law."  The initial installment is titled "The criminal side of the docket is not what you think," and I recommend the full entry.  Here are some snippets:

Determining what exactly constitutes the Supreme Court’s “criminal docket” is an inexact science. Various cases that are technically “civil” – for example, habeas corpus petitions involving criminal sentences – are thought of as “criminal cases” by many. So too “civil” actions founded on claims of criminal procedure violations....

[M]any court observers are surprised to hear that every term, year in and year out, a significant bulk of the Supreme Court’s merits opinions address “criminal law and related” cases. By my own (perhaps idiosyncratic) categorization, the percentage of this on the docket has not been less than 25% in the past 50 years. For the 2024-25 term, it was over 40%, which is not abnormally high. Of the 67 decisions listed on the court’s own Opinions of the Court site, 29 are either answering criminal law issues or addressing topics of interest to criminal law practitioners. 

[O]f these 29 CLAR (criminal law and related) cases, almost half — 14 of them — were “pure” criminal law decisions..... “Pure” does not mean that they were direct appeals of criminal convictions — for various reasons (perhaps to explore in a later column), the court hears relatively few such cases. But the issues these 14 cases evaluated were at the heart of criminal prosecution and defense.  Overall, 14 “pure” criminal law cases of 67 court opinions is over one-fifth of the court’s entire merits docket. 

I am already looking forward to more ScotusCrim posts, especially because I agree 100% with the observation that there is "a gap in Supreme Court coverage" with respect to criminal cases.

Prior recent related post:

•  Quick recap of US Supreme Court's major criminal justice opinions for OT 2024

The Sentencing Project releases new report on "Voting From Prison: Lessons From Maine and Vermont"

The folks at The Sentencing Project released this new 36-page report about two states' experiences with in-prison voting.  Here are excerpts from the report's executive symmary:

Only two U.S. states – Maine and Vermont – do not disrupt the voting rights of their citizens who are completing a felony-level prison sentence. Incarcerated Mainers and Vermonters retain their right to cast absentee ballots in elections.  Because of the states’ unique place in the voting rights landscape,  The Sentencing Project examined how their Departments of Corrections facilitate voting. We sought to determine experiences and lessons to share nationally as momentum builds in states, such as Illinois, Maryland, and Oregon, to expand voting rights to people completing a felony-level sentence in prison or jail....

Our findings are based on 21 interviews with staff from the Maine and Vermont Departments of Corrections and other stakeholders who collaborated with these agencies in voting rights work, as well as our survey of incarcerated Mainers and Vermonters in which 132 incarcerated people participated. This investigation revealed:

●  Nearly three quarters (73%) of incarcerated survey respondents said that voting during incarceration is important to them.

●  Almost half (49%) of incarcerated respondents said that they did not know how to vote at their facility....

The Sentencing Project recommends providing more equitable access to voting and democracy during imprisonment....  Every eligible American citizen should be able to cast a ballot in elections regardless of conviction or incarceration status.  In the words of one incarcerated resident in Maine, “I believe strongly [that] voting is a fundamental right for every American citizen. Being incarcerated does not mean you forfeit that right so I voted in here and will most definitely vote out of here.” 

Given notable survey data regarding dynamics politica leanings of the incarcerated (see here and here), I do not think it impossible to imagine some bipartisan bipartisan efforts to help more persons behind bars to vote.  But I doubt this will be a priority voting concern for either party anytime soon.

"Aligning Algorithmic Risk Assessments with Criminal Justice Values"

The title of this post is the title of this new paper just posted to SSRN and authored by Dennis D. Hirsch, Jared Ott, Angie Westover-Munoz and Chris Yaluma. Here is its abstract:

Federal and state criminal justice systems use algorithmic risk assessment tools extensively.  Much of the existing scholarship on this topic engages in normative and technical analyses of these tools, or seeks to identify best practices for tool design and use.  Far less work has been done on how courts and other criminal justice actors perceive and utilize these tools on the ground.  This is an important gap.  Judges’ and other criminal justice actors’ attitudes towards, and implementation of, algorithmic risk assessment tools profoundly affect how these tools impact defendants, incarceration rates, and the broader criminal justice system.  Those who would understand, and potentially seek to improve, the courts’ use of these tools would benefit from more information on how judges actually think about and employ them.

This article begins to fill in this picture.  The authors surveyed Ohio Courts of Common Pleas judges and staff, and interviewed judges and other key stakeholders, to learn how they view and use algorithmic risk assessment tools.  The article describes how Ohio Common Pleas Courts implement algorithmic risk assessment tools and how judges view and utilize the tools and the risk scores they generate.  It then compares Ohio practice in this area to the best practices identified in the literature and, on this basis, recommends how the Ohio Courts of Common Pleas — and, by implication, other state and federal court systems — can better align their use of algorithmic risk assessment tools with core criminal justice values.

Again flagging some of many notable recent Inquest essays

I have lately been making it a quarterly habit of highlighted essays from Inquest, "a decarceral brainstorm," and so here is the latest installment of just some recent pieces on an array of topics that sentencing fans may want to check out:

It has been a couple of months since I highlighted essays from Inquest, "a decarceral brainstorm," and so here is coverage of just some of its newer pieces on an array of topics that sentencing fans may want to check out:

By Jennifer Oliva, "Everything Old Is New Again: Policymakers claim to have turned away from the “old” war on drugs—but everything about their “new” approach is still focused on punishment and surveillance."

By Robin Bernstein and Nicole R. Fleetwood, "The Profit Motive: A recent book unveils the shockingly long history of for-profit prisons — and the equally long history of incarcerated people demanding compensation for their exploited labor."

By Bobbi Cobaugh, "No Exit: When parole boards are allowed to give the original crime more weight than proof of change, they become an absurdist theater of foregone conclusions." 

By Bianca Tylek and Worth Rises, "Not Fit for Human Consumption: Prisons serve bad, inadequate food as a way to cut costs. Providing this inhumane service is now a profitable sector of Wall Street."

By Meera Navlakha, "Never Too Old to Start Over: When released, older incarcerated people have incredibly low recidivism rates — yet are still routinely denied parole and clemency. Organizers in New York are trying to change that."

Noting just some of the challenges in the upcoming sentencing of Sean "Diddy" Combs

I gave a talk some years ago, which later became this essay, that discussed why "sentencing is dang hard."  That work came to mind as I started thinking about what Judge Arun Subramanian will be facing as he prepares to sentence Sean "Diddy" Combs in the coming months.  (The sentencing is scheduled for October 3, but that could change.)  Here are just some of the sentencing challenges ahead for the judge:

1. Calculating the guideline range.  Though the federal sentencing guidelines are only advisory, it is mandatory that Judge Subramanian calculate a guideline range which is to serve, in the words of the Supreme Court, as a "starting point and initial benchmark."  The parties are already disputing the guideline calculation: in submissions concerning bail pending sentencing, prosecutors calculated the guidleline range to be 51-63 months while the defense calculated the range to be 21-27 months.  A presentece report that will be prepared by the probation office could have an even different calculated guideline range.

2. Considering "acquitted conduct" (formally or informally).  For decades, it was standard procedure that even conduct related to an acquitted count would have to be considered in the calculation of the applicable guideline range.  But the US Sentencing Commission amended the guidelines in 2024 to exclude acquitted conduct from guideline range calculations.  However, that amendment does not define exactly what qualifies as "conduct for which the defendant was ... acquitted," nor does this guideline amendment impact judges' broad statutory authority to consider all aspects of a defendant's "background, character, and conduct."  Can and should Judge Subramanian disregard any and all aggravating evidence presented at trial that related to counts on which Combs was acquitted?  Will he (or the parties) address this "acquitted conduct" issue expressly in the sentencing proceedings? 

3. Assessing "the offense" and "the defendant."  In the key federal sentencing statute, Congress instructs that judges, "in determining the particular sentence to be imposed, shall consider the nature and circumstances of the offense and the history and characteristics of the defendant."  Needless to say, there are lots and lots of elements to the nature and circumstances of the Combs' offense and even more aspects of Combs' history and characteristics.  Prosecutors in sentencing arguments are likely to stress aggravating aspects of Combs' offense conduct and history, while the defense is sure to stress his professional achievements and charitable works.  Every judge in every sentencing faces the challenge of conducting, in the words of the Supreme Court, "a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue."  But the term "unique" only begins to describe the many remarkable elements of the crime and criminal here.

4. Imposing a "sentence sufficient, but not greater than necessary."  All of the considerations above are in service to the judge's ultimate responsibility under federal law to "impose a sentence sufficient, but not greater than necessary, to comply with" the sentencing purposes Congress set out in 18 U.S.C. § 3553(a)(2).  Just what is "sufficient" in this case to "to promote respect for the law," and "to provide just punishment for the offense"?  What is sufficient "to afford adequate deterrence to criminal conduct"?  At what point would a prison term become "greater than necessary" to serve these and other purposes?

This post just scratches the surface with respect to why sentencing Sean "Diddy" Colmbs is dang hard.  Judge Subramanian has considerable work ahead.  More broadly, while celebrity sentencings get a disproportionate amount of attention, they provide a useful opportunity to highlight the myriad challenges that every judge faces at every sentencing.

Prior related post:

• You be the federal judge: what sentence for Sean "Diddy" Combs for two felony prostitution convictions?

Notable new data on death sentences over first half of 2025

In recent posts about recent exections, I have noted that the US as a whole is on pace for more executions in 2025 than in any year in more than a decade.  Against that backdrop, I was interested to see that the Death Penalty Information Center released this new short report titled "Mid-Year Review 2025: New Death Sentences Remain Low Amidst Increase in Executions."  The report covers a lot of ground on death penalty developments in 2025, and here is part of its discussion of executions and death sentences:  

The 25 exe­cu­tions car­ried out in the first six months of 2025 equal the total num­ber of exe­cu­tions for all of 2024. But this year’s exe­cu­tions are heav­i­ly geo­graph­i­cal­ly con­cen­trat­ed: 7 (28%) in Florida and 4 each (16%) in Texas and South Carolina, for a total of 60% of exe­cu­tions in just three states.  People exe­cut­ed this year spent an aver­age of 24 years on death row, con­firm­ing once again that exe­cu­tions are a lag­ging indi­ca­tor of pub­lic sup­port; they were sen­tenced at a time when sup­port for the death penal­ty was much high­er than it is today and more zeal­ous pros­e­cu­tion poli­cies were in place.  Public sup­port for the death penal­ty, last mea­sured in November 2024, is the low­est in 50 years (53%).

New death sen­tences are down near­ly 30% com­pared to the same peri­od last year.  Ten peo­ple in six states have been sen­tenced to death so far in 2025, mark­ing a decrease from last year’s pace of 14 new death sen­tences in the first half of 2024.  These new death sen­tences reflect the deci­sions of today’s juries and are a cur­rent mea­sure of pub­lic sen­ti­ment on the death penal­ty.  Both of Alabama’s new death sen­tences result­ed from non-unan­i­mous jury votes, with only 10 jurors vot­ing for death. Alabama and Florida are the only two states that allow non-unan­i­mous juries to impose sen­tences of death.

President Trump’s January 20, 2025, Executive Order urged state pros­e­cu­tors to seek new death sen­tences for the 37 men whose fed­er­al death sen­tences were com­mut­ed to life with­out parole by President Biden.  But only one per­son, Thomas Steven Sanders in Louisiana, faces new state cap­i­tal charges. Florida pros­e­cu­tors have also announced that they will reopen the case of Daniel Troya and Ricardo Sanchez, Jr., with the pos­si­bil­i­ty that they will seek new death sen­tences for the two men.  But oth­er state pros­e­cu­tors have declined President Trump’s invi­ta­tion, cit­ing high costs and logis­ti­cal com­pli­ca­tions.

Fresh thinking about the US Sentencing Commission and its proposed priorities

As noted in this prior post, the US Sentencing Commission released in early June this Federal Register notice of its possible policy priorities for the guideline amendment cycle ending May 1, 2026.  The USSC requested receiving formal public comment on these priorities by July 18, 2025, but this morning at the Sentencing Matters Substack Jonathan Wrobleski has some notable informal comments about the Commission's priorities as well as its composition in this new post.   The post's full title provides a partial previal of its fresh perspective: "A Thought Experiment: Imagine the U.S. Sentencing Commission’s Policy Priorities if Kim Kardashian and Lil Wayne Filled the Two Commission Vacancies; Some disruptive, out-of-the-box thinking might be just what the Commission needs." I highly recommend the post in full, and here is how in concludes:

So how should reformers react to the [USSC's] proposed priorities?  Is there any way for the Commission to think in a new way and beyond the tinkering with the Guidelines that seems to be its fate?  Or maybe reformers ought to rethink their belief that there is substantially more to do to reform federal sentencing.  Are the Guidelines — and federal sentencing more generally — actually pretty much as good as it gets? Has criminal justice reform gone the way of D-E-I?  Or is there still serious reform to be done?  And should that reform include not just changing the Guidelines but other steps too?...

Kim Kardashian has been an advocate for criminal justice reform for many years, and she has a phenomenal record of influencing the President to grant clemency and support justice reforms. She knows something about the attention economy, too; how to engage the public and political leaders; and how to influence public opinion and persuade. Same with Lil Wayne.  He’s had a few run-ins with the justice system and received a pardon from President Trump several years ago after he was charged with a firearms crime....

And now here’s a thought experiment: what if we started to think a little differently about the Sentencing Commission, its work, and who could be part of it?  What if we even started thinking a little differently about who could be a member of the Commission?  What if the President nominated Kardashian — and Wayne too — to the Commission?  Do you think the proposed priorities and its 2025-26 agenda would still look like what the Commission just published?  What might that Commission want to focus on?  What possibilities — beyond guideline tinkering — would open up for the Commission to change policy and the way people, both among the public and public officials, think about the criminal justice process if Kardashian and Wayne were sworn in by Chief Justice Roberts or Justice Alito or Justice Jackson (that would be quite a sight, wouldn’t it)?

A few thoughts run through my head: with Kardashian and Wayne, there might actually be a super-majority on the Commission in favor of advocating with Congress to eliminate some existing mandatory minimum sentencing statutes. Maybe the Commission could produce a series of Tik-Toks and a documentary about it to try and influence public opinion and the President’s.  They could focus on, and tell the stories of, men and women who were victimized by crime and men and women who have been unnecessarily locked away for too long.  Maybe there could be a reality TV show produced by the Commission?  A concert tour?  Maybe even new ways to think about culpability and how to structure sentencing decision-making?  Maybe even a conference and new proposals on second look sentencing, Kardashian’s special policy focus and expertise?

Let your mind wonder.  And send your ideas to the Commission.  Comments on the proposed priorities are due back to the Commission by July 18.  You can use this comment portal.  And send a copy of your ideas to the President and post them in the comments to this Substack too.

Some disruptive, out-of-the-box thinking might be just what the Commission needs.  And with Kardashian and Wayne on the Commission, just imagine what that next Commission retreat might be like.

I think we can all be certain that a reality show called "Keeping Up With the Commission" would never rival "Keeping Up With the Kardashians." Still, in our modern social media world, I see real value in this kind of out-of-the-box thinking about the USSC's work and composition.  And, of course, I would be eager to hear from readers about who they might want to see nominated (really or jokingly) for the current two open spots in on the US Sentencing Commission.

"Michael Tonry and Sentencing Proportionality"

The title of this post is the title of this article authored by Richard Frase in the June 2025 issue of the Criminal Law Forum. (As noted in this prior post, this journal issue is devoted to celebrating the work of sentencing guru Michael Tonry, and I will be flagging various individual articles from the issue in the weeks ahead).  Here is the abstract of Frase's article: 

This article examines how Michael Tonry’s views about proportionality of punishment evolved over time and influenced other sentencing scholars and reformers.  The article elaborates and defends two versions of the theory of limiting retributivism, building on arguments Tonry and other writers have made.  Tonry’s earliest writings about punishment proportionality adopted the limiting retributivism model previously proposed by Norval Morris.  That model views desert assessments as inherently imprecise; thus, to be retributively proportionate penalties need only fall within a range of severity that would not be widely viewed as undeserved — either clearly too severe or clearly too lenient.  In his later writings Tonry’s views shifted toward an asymmetric limiting retributive model.  Under that model, upper retributive limits on maximum permissible sanction severity must be as firm and precise as we can make them, whereas lower limits are much more flexible — offenders must never be punished more severely than they deserve, but for a variety of reasons it is permissible to punish them less than they deserve.  This article also calls attention to several important issues that have not been adequately addressed by advocates of either version of limiting retributivism, while also noting that many of these questions have likewise not been adequately addressed by proponents of a strongly retributive punishment model.  The article further demonstrates how resolving these issues is easier under a well-designed sentencing guidelines regime — a sentencing structure strongly endorsed in Tonry’s writings.

Reviewing "chaos" in federal prisons resulting from Trump Administration policies

This lengthy new Slate commentary laments an array of policy and practical developments in federal prisons to argue that "[s]ince his first day in office, the Trump administration has thrown the lives of incarcerated people into chaos — especially the more than 150,000 people under the jurisdiction of the Federal Bureau of Prisons."  I recommend the piece in full, and here are some excerpts:

The BOP — the nation’s largest single prison system—has been in a “long-standing crisis” for more than a decade, ... incarcerated people and BOP experts say that in just a few short months, the Trump administration has exacerbated this crisis. He has implemented major pay cuts, issued confusing and short-sighted orders, directly targeted vulnerable incarcerated populations, and haphazardly slashed funding for crucial initiatives....

People incarcerated in BOP facilities are already feeling the effects, including through the increased use of lockdowns, during which entire units are confined to cells for hours or days on end. In recent weeks, many federal prisons have implemented new policies, such as full-day lockdowns once a week, or nightly lockdowns starting at 6, according to reports sent by incarcerated people to the advocacy group More Than Our Crimes.  These incarcerated writers often report that staff blame the new lockdowns on insufficient staffing or overtime bans....

“These are big problems that lead to even bigger problems,” Hugh Hurwitz, who served as BOP acting director from 2018 to 2019, told Forbes in April. “You have a situation where inmates are angry and I know from what I am hearing that staff are angry. That is not a good combination on top of the issues with poor morale, staffing shortage, pressure to cut costs from the new administration and managing all this while trying to stick to the mission of security in the prisons. … It is a powder keg and a lot of people are worried about a big incident that may happen next.”...

Jack Donson, a 23-year former BOP employee, policy expert, and executive director of the Prison Education and Reform Alliance, says the BOP could safely and significantly reduce its spending. He noted the agency has more employees than in the mid-2000s, despite a similar number of incarcerated people. The problem, he argues, is that there are too many bureaucratic roles in D.C. and in regional headquarters, and not enough front-line staff.  “Prison staff will tell you that these administrative layers (especially at the regional level) have become bloated at the expense of correctional and other specialized personnel at individual facilities,” Donson wrote in March. 

Encouraging criminal justice trends for "Life, Liberty and the pursuit of Happiness" in 2025

We are still a year away from a very big anniversary of the signing of the Declaration of Independence, but criminal justice fans can finb a lot to celebrate today on July 4, 2025.  As I have been highlighting in many prior posts (eg, here and here), the first half of 2025 has continued, and has perhaps even accelerated, dramatic declines in homicides across the United States.  Additional crime data suggest that all sorts of other crime rates are also trending in a terrific direction: this recent Substack post by Jeff Asher captures the story in its headline, "It's Not Just Murder That's Likely At Historic Lows; The US is on track to record the lowest violent crime rate since 1968 and lowest property crime rate ever."  Declining crime surely helps to advance, directly and indirectly, "life, liberty and the pursuit of happiness" for all Americans.

In addition, as detailed in this recent post, at least one thoughtfut anaylst has predicted that America's prison population "is on track to fall to about 600,000 — a total decline of roughly 60 percent."  I am not at all certain that we are going to see such a dramatic decline in imprisonment in the US in the coming years, but I am certain that the nearly 25% decline in prison incarceration rates from 2009 to 2024 itself represents a remarkable development that suggests the era of mass incarcerations is in serious decline, if not quite entirely over.  And declining imprisonment levels likely helps to advance, directly and indirectly, "life, liberty and the pursuit of happiness" for many Americans.

Linking these stories, if the US in 2025 and beyond can sustain historically low crime rates along with relatively low incarceration rates, there would be a basis to hope that the United States could trend toward low rates of incarceration in the second half of the 21st Century to rival those in the first three quarters of the 20th Century.  Again, I am neither predicting nor expecting such developments, but I am eager to imagine celebrating in the years ahead even more and more Americans enjoying fully on this day their "unalienable Rights" of "life, liberty and the pursuit of happiness."