Wednesday, February 21, 2024

"Going Federal, Staying Stateside: Felons, Firearms, and the ‘Federalization’ of Crime"

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

Scholars have long debated the federalization of crime. Proponents assert that federal prosecutions are more likely than state prosecutions to result in convictions and severe punishments, and thus more likely to deter crime. Opponents argue that federalization leads to the arbitrary, and even racist, punishment of a few unlucky defendants plucked from a sea of similarly situated peers.  Everyone seems to agree about one thing, though: the federal system outstrips the state system in effectiveness and severity.  Yet, no one has obtained the state-court data needed to substantiate these comparisons.  This Article fills that gap with an examination of the crime of being a felon in possession of a firearm, an offense that now accounts for nearly 10% of the federal criminal docket.

The Article makes three main contributions to the literature.  First, it shows how the literature’s claims about the superiority of federal prosecutions (compared to state ones) are rarely substantiated by data about actual state court prosecutions.  In essence, the literature considers only the cases that went federal, not the far more numerous cases that could have gone federal yet stayed in state court.  Second, using a novel case study of all the federal and state felon-in-possession prosecutions in one of the nation’s largest counties — Alameda County, California — the Article tests several bedrock claims about federalization.  The testing leads to surprising results regarding conviction rates, sentencing severity, and racial disparities in charging practices.  Finally, the Article connects these findings to the larger problem of academia’s fixation on all things federal — a fixation that comes at the expense of state and local topics.

February 21, 2024 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

SCOTUS confirms that "an acquittal is an acquittal" in crazy Georgia case

The Supreme Court this morning handed down two unanimous opinions, one of which came in the criminal case of McElrath v. Georgia, No. 22-721 (S. Ct. Feb 21, 2024) (available here).  Justice Jackson authored the ten-page opinion for the Court, which starts this way:

Under Georgia law, a jury’s verdict in a criminal case can be set aside if it is “repugnant” — meaning that it involves “affirmative findings by the jury that are not legally and logically possible of existing simultaneously.” 308 Ga. 104, 111, 839 S. E. 2d 573, 579 (2020).  In this case, a jury found that petitioner Damian McElrath was “not guilty by reason of insanity” with respect to a malice-murder count, but was “guilty but mentally ill” regarding two other counts — felony murder and aggravated assault — all of which pertained to the same underlying homicide.  Invoking the repugnancy doctrine, Georgia courts nullified both the “not guilty” and “guilty” verdicts, and authorized McElrath’s retrial.

McElrath now maintains that the Fifth Amendment’s Double Jeopardy Clause prevents the State from retrying him for the crime that had resulted in the “not guilty by reason of insanity” finding.  Under the circumstances presented here, we agree.  The jury’s verdict constituted an acquittal for double jeopardy purposes, and an acquittal is an acquittal notwithstanding its apparent inconsistency with other verdicts that the jury may have rendered.  

Justice Alito added a two-paragraph concurrence, which starts this way:

I join the opinion of the Court but write to clarify my understanding of what we have held. In this case, there was indisputably an acquittal on the malice-murder charge. The jury returned a not-guilty verdict on that count, the trial judge entered a judgment of acquittal on that count, and petitioner appealed that part of the judgment. Because the Constitution does not permit appellate review of an acquittal, the State Supreme Court’s decision must be reversed. As I understand it, our holding extends no further

February 21, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Tuesday, February 20, 2024

New Prison Policy Initiative briefing makes arguments against jail construction arguments

This new briefing from Prison Policy Initiative authored by Emmett Sanders seeks to undercut arguments made in favor of jail construction. The full title of the posting highlights its themes: "Cautionary jails: Deconstructing the three “C”s of jail construction arguments. Communities across the country have been told that investing in new jail construction is the only way to solve old policy problems, but arguments for new jails can leave them with a billion-dollar case of buyer’s remorse."  Here is how the briefing begins (with links from the original):

Arapahoe County, Colorado, is expanding its jail just four years after taxpayers rejected a proposition to raise taxes for a new one.  The justification for the $46 million expansion? Proponents cite the jail’s age, overcrowding, and a sudden sensitivity to the need to treat rather than warehouse people with addiction issues; the sheriff claims, “people’s needs have changed.”  $30 million will come from COVID-19 pandemic relief funds; as the ACLU notes, using relief funds in this way is expressly forbidden by the Department of Treasury.

Similar arguments are being used to justify jail construction all around the country.  Often, this means ignoring voters’ wishes, misusing and redirecting millions of dollars from community-based resources, and saddling citizens with decades of tax liability.  New jail construction projects regularly fail to meet promises, leaving communities to deal with the aftermath.  Drawing from examples across the country, we break down three common arguments for jail construction, discuss how they have been used to build or expand jails, and highlight how reinvesting in cages is not a solution to social problems like crime and substance use.

Jail proponents usually rely on one or more of three central arguments to make their case:

  • The “Capacity” argument: a bigger jail is required to house everyone being incarcerated in the jurisdiction;
  • The “Contemporary” argument: new construction is needed to update an outdated jail;
  • The “Compassionate” argument: new construction is necessary to treat incarcerated people more humanely.

On a surface level, these three “C” arguments are compelling because they speak to very real issues. What these arguments often overlook, however, is that these issues are largely driven by bad policies that have drastically expanded reliance on packing people in cages.  Essentially, the prevailing claim is that the only way to solve the problem of incarceration is to expand our ability to incarcerate — when in fact, communities would be better served by shrinking jail populations.  This sunk cost fallacy often leaves communities without real solutions and holding the bag for decades.

February 20, 2024 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

"The role of character-based personal mitigation in sentencing judgments"

The title of this post is the title of this new article authored by Ian Belton and Mandeep Dhami recently published in the latest issue of the Journal of Empirical Legal Studies.  Here is its abstract:

Personal mitigating factors (PMFs) such as good character, remorse and addressing addiction help sentencers evaluate an offender's past, present and future behavior.  We analyzed data from the 2011–2014 Crown Court Sentencing Surveys in England and Wales to examine the relationship between these PMFs and custodial sentences passed on assault and burglary offenses, controlling for other sentencing relevant factors.  Beyond revealing the distribution and co-occurrence of the three PMFs, it was found that good character, remorse and addressing addiction all had a significant mitigating effect.  The effects of addressing addiction were the strongest of the three across both offense types, while good character had a stronger effect on burglary than assault.  In addition, some mitigating factors appear to be underweighted when they occur together.  We consider the implications of these findings for sentencing policy and practice.

February 20, 2024 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4)

SCOTUS order list includes a notable statement in a habeas denial

The US Supreme Court is back in action this morning, staring with the release of this lengthy order list.  The list includes no grants of certiorari (and any "normal" grants these days would not be heard until the fall anyway).  But the list does conclude with a number of dissents and statements regarding the denial of review, one of which involves a federal criminal case.  

In In re Bowe, No. 22–7871 (S. Ct. Feb. 20, 2024) (available here), Justice Sotomayor, joined by Justice Jackson, issued a three-page statement respecting the denial of the petition for a writ of habeas corpus.  Here are excerpts: 

Under §2244(b)(1) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court must dismiss a “claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application.” 28 U. S. C. §2244(b)(1).  State prisoners seek federal postconviction relief under §2254.  Federal prisoners seek postconviction relief under §2255.  This petition raises the question whether §2244(b)(1)’s bar, which explicitly references only §2254, also applies to a claim by a federal prisoner who brings a successive challenge to his conviction under §2255....

JUSTICE KAVANAUGH has previously expressed his desire for this Court to resolve [the 6-3 circuit] split [over the reach of this bar on state prisoner petitions].  Avery v. United States, 589 U. S. ___, ___ (2020) (statement respecting denial of certiorari) (slip op., at 2).  I now join him.  There is a reason, however, that this is the first case to reach the Court presenting this question since he welcomed petitions on the split in Avery.  There are considerable structural barriers to this Court’s ordinary review via certiorari petition....

I would welcome the invocation of this Court’s original habeas jurisdiction in a future case where the petitioner may have meritorious §2255 claims.  The Government also suggests that a court of appeals seeking clarity could certify the question to this Court.  In the meantime, in light of the demanding standard for this Court’s jurisdiction over original habeas petitions, I encourage the courts of appeals to reconsider this question en banc, where appropriate.

I still recall fondly when the Second Circuit in US v. Penaranda, a full 20 years ago, certified three questions to SCOTUS concerning the application of Blakely to the federal sentencing system.  I am not sure if there have been any other circuit certifications in the last two decades, but I am sure it is interesting to have two Justices flag this notable means of getting an issue on the SCOTUS docket.

February 20, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, February 19, 2024

"Rethinking Children, Crime and Culpability"

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

In the early twenty-first century, the United States Supreme Court developed a rich body of case law that recognized the constitutionally significant differences between children and adults.  The core of this case law, often referred to as the Miller trilogy, banned capital punishment for juvenile crimes and significantly limited instances when states can impose life without parole on minors.  By leveraging the logic and science of the Miller trilogy, lower courts and state actors have implemented juvenile justice reforms on issues ranging from legal representation and transfer laws to conditions of confinement and parole practices.  This Article makes a novel and important argument that flows from the Miller trilogy but that has been under-theorized to date.  Specifically, in this Paper I argue that all of the ways in which children are different according to the Court -- their immaturity, their impulsivity and their inability to remove themselves from criminogenic environments -- are relevant to a criminal conviction just as much as they are relevant to punishment. 

The Paper proceeds in four Parts.  Part I discusses Miller’s legacy and its already vast implications nationwide. Parts II and III are the heart of the Paper, where I set forth my central claim: that Miller’s legacy demands nothing short of a wholesale reconsideration of substantive criminal law as applied to children.  Part II articulates the first principles of this theory in the context of the state’s burden to prove the elements of a crime, while Part III theorizes how defendants may leverage the defining features of youth when mounting affirmative defenses.  Part IV addresses likely conceptual and implementation-related concerns, and by way of Conclusion, I suggest that rethinking children’s culpability, rather than tinkering with their sentences, may be the most important and lasting legacy of the Miller trilogy.

February 19, 2024 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

In praise of efforts to develop the new "Real-Time Crime Index"

I am excited to see this new Substack entry from Jeff Asher talking up the development of a new crime data resource. Here is part of the start of the posting (with links from the original):

One of the greatest challenges to understanding crime trends is that data is frequently old and stale by the time it is received. Imagine only learning about the Texas Rangers winning the 2023 World Series winner 9 months after the last out.  That’s essentially the world of crime trends.

The solution to date for crime data has been to collect data from dozens or hundreds of cities that make it publicly available in order to guesstimate what’s happening nationally.  That’s what our YTD murder dashboard attempts to do and it’s also how groups like the Council on Criminal Justice and Major Cities Chiefs Association approach the problem.

The advantages of this methodology are clear: it's fast, it uses publicly available data, and it's reasonably predictive of the national trend.  The disadvantages are equally clear: the data that individual agencies publish is not standardized, there's a decent sized margin of error — especially when the sample is smaller, you’re stuck doing YTD comparisons which aren’t particularly useful for a good chunk of the year, and going beyond murder boosts the difficulty quite a bit.

All of those problems will hopefully be a thing of the past as we start to build a new project called the Real-Time Crime Index (RTCI).  The RTCI is being undertaken thanks to a grant from Arnold Ventures with the objective of creating a repository of crime data from 500 to 1,000 cities that is updated monthly.  The goal is to more or less mimic what BLS does with employment data to create an understanding of national crime trends in as close to real-time as possible.

This project is being done in collaboration with FBI and BJS — the nation’s arbiters of crime data — with a goal of eventually transitioning stewardship of the RTCI to the Federal government by the end of the grant.

Regular readers will not be suprised to hear that I would also love to see a Real-Time Sentencng Data project in the works, but that would be another remarkably hard data project.  Getting lots more real-time crime data would be a great achievement, and I wish the folks working on the RTCI all the best in their important and valuable endeavors.

February 19, 2024 in Data on sentencing, National and State Crime Data | Permalink | Comments (0)

Saturday, February 17, 2024

Lots and lots of weekend reads on lots and lots of different topics

Another weekend leads me to realize that a bunch of notable pieces have caught my eye, and yet I will not have time to blog about them in any detail.  Ergo, the time for a lengthy, and this time quite elclectic, round-up post:

From the Brennan Center, "What the Race for Santos’s Seat Says About Crime Messaging"

From The Bulwark, "How Marijuana Could Become a Political Issue in 2024"

From the Coloroda Sun, "Colorado could become the first state to require in-person voting in jails

From Fox News, "New York man who smuggled pythons into the US by hiding them in his pants sentenced to probation, fined $5k"

From the Kansas City Star, "Kansas hasn’t executed anyone in six decades. Kobach is preparing for that to change"

From Law360, "What Rescheduling Pot Would Mean For Criminal Justice Reform"

From the Marshall Project, "Medical Marijuana Is Legal, But Oklahoma Is Charging Women for Using It While Pregnant"

From The New Yorker, "What Do We Owe a Prison Informant?"

From NPR, "Violent crime is dropping fast in the U.S. — even if Americans don't believe it"

From ProPublica, "Oregon’s Drug Decriminalization Aimed to Make Cops a Gateway to Rehab, Not Jail. State Leaders Failed to Make It Work."

From Reuters, "Mass killer Breivik loses human rights case to end prison isolation"

From Stateline, "Drunken drivers would have to pay child support for victims’ kids under these laws"

From the San Francisco Chronicle, "A little-known feature of Prop. 47 has led to far lower crime rates for this group"

From Slate, "The True Crime Canon: The 25 best crime books, podcasts, and documentaries of all time."

From The Verge, "New bill would let defendants inspect algorithms used against them in court"

As always, I would welcome comments about any of these pieces/topics and especially about which ones might merit more attention through additional postings.

February 17, 2024 in Recommended reading | Permalink | Comments (17)

Friday, February 16, 2024

Should a bounce in crypto markets mean a much lower federal sentence for Sam Bankman-Fried?

The question in the title of this post is prompted by this new CoinDesk article headlined "Sam Bankman-Fried's Sentence Might Be Lighter Than You'd Expect."  Here are excerpts:

Former FTX boss Sam Bankman-Fried (SBF) may be handed a lighter sentence than otherwise when he faces District Judge Lewis A. Kaplan next month because customers of the bankrupt exchange will probably be made whole thanks to a bounce in crypto markets and the buoyancy of certain investments held by the estate.

Bankman-Fried was found guilty of fraud in November 2023, about a year after his crypto trading empire collapsed. During the bankruptcy process, the crypto market has risen sharply -- CoinDesk Indices' CD20 gauge has gained more than 130% -- meaning many thousands of hapless creditors are going to receive all the funds they had locked in, albeit at November 2022 prices.  In July last year, the bankruptcy team said customers were owed $8.7 billion.

The jump in crypto markets matters because restitution can be taken into account for sentencing.  For example, for low losses, the guidelines suggest a range of 24-30 months.  A high-loss amount, in contrast, could lead to a draconian range of upwards of 20 years’ imprisonment, or even life, according to Jordan Estes, a partner at the New York City office of law firm Kramer Levin. “I would expect the loss amount to be hotly contested at sentencing,” said Estes, a former assistant U.S. attorney who co-led the general crimes unit in the Southern District of New York, where the trial took place.  “In particular, the defense may argue for a substantially lower loss amount, or even a loss amount of $0, if all customers and creditors will be made whole,” she told CoinDesk via email.

That said, the U.S. sentencing guidelines that give defendants credit for amounts returned to victims apply only when the return took place before the offense was detected.  In this case, it’s clearly not SBF who is giving the money back, and the payments come well after discovery of the offense.  A possible parallel is the case of fraudulent financier Bernie Madoff, who died in prison at the age of 82 while serving a series of consecutive sentences that ran to 150 years. In Madoff's case, the bankruptcy trustee also recovered large sums of stolen money, but he didn't receive any credit for that.

Prior related post:

UPDATE: In the comments, Professor Todd Haugh flagged his recent LinedIn posting discussing these issues.  Here is how his discussion concludes:

In the federal system, the sentencing range applicable to an economic offender like SBF is heavily determined by the loss amount. The higher the loss, the higher the sentencing range, and the higher the eventual sentence (even though judges don't have to follow the range they are anchored by it).

You might ask (as DealBook does), if customers are made whole and there is no loss, doesn't that help SBF at sentencing?  You would think, except sentencing loss isn't loss like we think of it -- it's actual or intended loss according to the Sentencing Guidelines and most caselaw.  So even though Ray found all the money and there may be very little actual loss, SBF's fraud caused an intended loss of about $8B.  That's the number that will set the loss amount regardless of how much is recovered for customers (subject to a lot-and I mean a lot-of argument between prosecutors and SBF).

But what about the "sort of" part?  Even though the intended loss is what it is, because the guideline range is only advisory, Judge Kaplan can ignore it and impose a lower sentence. That almost always happens in high loss white collar cases because the loss amounts push the sentencing ranges to outlandish heights.  And when the judge is considering how low to go, he's going to be considering that "actual loss" amount, which may be $0 here.

It's not a get out of jail free card, but it matters.

February 16, 2024 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2)

New federal lawsuit from Alabama death row defendant claims nitrogen gas execution method unconstitutional

As reported in this AP piece, an "Alabama death row inmate filed a lawsuit Thursday that challenges the constitutionality of nitrogen gas executions, arguing that the first person in the nation put to death by that method shook violently for several minutes in 'a human experiment that officials botched miserably'."  Here is more:

The lawsuit filed in federal court in Alabama alleges the January execution of Kenneth Eugene Smith by nitrogen gas was torturous and “cannot be allowed to be repeated.” The lawsuit says descriptions from witnesses that Smith shook and convulsed contradicted the state’s promises to federal judges that nitrogen would provide a quick and humane death.

“The results of the first human experiment are now in and they demonstrate that nitrogen gas asphyxiation is neither quick nor painless, but agonizing and painful,” attorney Bernard E. Harcourt wrote in the lawsuit. The lawsuit was filed on behalf of death row inmate David Phillip Wilson, who was sentenced to death after he was convicted of killing a man during a 2004 burglary. The lawsuit seeks a declaratory judgment that the current nitrogen gas asphyxiation protocol violates the inmate’s constitutional right to protection from cruel and unusual punishment.

Alabama last month became the first state to use nitrogen gas to put an inmate to death. Nitrogen gas is authorized in three states — Alabama, Oklahoma and Mississippi — but no state had previously attempted to use it.... The U.S. Supreme Court allowed Smith’s execution to proceed last month. The lawsuit contends that media and witness accounts of the execution contradict the state’s prediction to the courts that the nitrogen gas would render Smith unconscious “within seconds.”

Smith shook in thrashing spasms and seizure-like movements for several minutes at the start of the execution. The force of his movements caused the gurney to visibly move at least once. Reporters from The Associated Press,, the Montgomery Advertiser, the Alabama Reflector and WHNT attended the execution as media witnesses. “In stark contrast to the Attorney General’s representations, the five media witnesses chosen by the Alabama Department of Corrections and present at Mr. Smith’s execution recounted a prolonged period of consciousness marked by shaking, struggling, and writhing by Mr. Smith for several minutes after the nitrogen gas started flowing,” the lawsuit stated....

Alabama Attorney General Steve Marshall has maintained that the execution was “textbook” and said the state will seek to carry out more death sentences using nitrogen gas. “As of last night, nitrogen hypoxia as a means of execution is no longer an untested method. It is a proven one,” Marshall said the morning after Smith’s execution, extending an offer of help for states considering adopting the method.

Alabama Corrections Commissioner John Q. Hamm said he thought Smith might have deliberately held his breath, but also said the state expected involuntary movements and the type of breathing that occurs with lack of oxygen. “That was all expected and was in the side effects that we’ve seen or researched on nitrogen hypoxia,” Hamm said.

February 16, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (14)

Thursday, February 15, 2024

New IG report documents multple problems contributing to multiple deaths in federal prisons

As reported in this new Washington Post piece, a "combination of negligence, operational failures and a blundering workforce has contributed to hundreds of inmate deaths in federal custody, according to a report released Thursday morning by the Justice Department’s inspector general."  Here is more from the start of the post piece:

The report portrayed a short-staffed Federal Bureau of Prisons (BOP) system in which inmates are easily able to smuggle in dangerous contraband and go unsupervised as they kill themselves and others.

A total of 344 inmates died by suicide, homicide, overdose or other unknown accidents between 2014 and 2021, according to the report.  A majority of those deaths were suicides — with a majority of those suicides among inmates in solitary confinement. That death count has crept up between 2014 and 2021 — even as the federal prison population has declined to about 155,000 people in 2024. In 2014, there were 38 inmate deaths by unnatural causes. In 2021, that number was 57 inmates.

Ultimately, the report concluded, the culture of negligence that led to the deaths of high-profile inmates Jeffrey Epstein and Whitey Bulger in recent years is endemic in the prison system.  Epstein, a convicted sex offender, died by suicide in federal custody, with a separate inspector general report concluding that staff failed to do the proper check-ins with him before hanging himself.  Bulger, a Boston mobster, was bludgeoned to death in his bed hours after he was transferred to a new prison facility.

“Available BOP documentation that details the circumstances surrounding these inmate deaths demonstrates significant recurring issues and contributing factors, including inadequate staff response to inmate emergencies, failure to properly assess, manage, and monitor inmates at risk for suicide; and deficiencies in the BOP’s ability to collect, maintain and learn from evidence and post-incident documentation,” the report concluded.

The press release from DOJ's IG office is available at this link, and the full 100+ page report can be found at this link.  Here is part of the press release:

Department of Justice (DOJ) Inspector General Michael E. Horowitz announced today the release of a report on issues surrounding inmate deaths in Federal Bureau of Prisons (BOP) institutions.  The DOJ Office of the Inspector General (OIG) evaluated 344 inmate deaths at BOP institutions from FY 2014 through FY 2021 in four categories: suicide, homicide, accident, and those resulting from unknown factors.  Many of the deaths that occurred under accidental or otherwise unknown circumstances involved drug overdoses. Suicides comprised the majority of these deaths, with homicides the next most prevalent.  The OIG identified several operational and managerial deficiencies that created unsafe conditions prior to and at the time of a number of these deaths.

February 15, 2024 in Prisons and prisoners | Permalink | Comments (18)

Another reminder of the long life (and possible ending) of life without parole sentences

This local news piece, headlined "Man, 77, released from prison after serving decades for 1965 murder conviction," caught my eye because of the numbers involved.  Here is part of story behind the numbers:

A 77-year-old man has been released from prison after receiving a new sentence for a 1965 felony murder conviction, in the wake of a decision by the Michigan Court of Appeals declaring mandatory life without parole sentences for 18-year-old defendants unconstitutional.

Ivory Thomas was convicted in October 1965 at age 18 of first-degree felony murder for fatally stabbing 18-year-old Michael Railsback in Dueweke Park during a robbery. However, in 2022, the Michigan Supreme Court decided that mandatory life without parole sentences for 18-year-old defendants violate the Michigan state constitution’s prohibition against cruel and unusual punishment.

Judge Chandra Baker-Robinson resentenced Thomas this week to 40 to 60 years. Thomas was released Tuesday, a spokesperson for the Department of Corrections confirmed. He was serving his sentence at the Thumb Correctional Facility in Lapeer....

The Wayne County Prosecutor’s Office did not object to Thomas’ resentencing, according to a news release. Prosecutor Kym Worthy’s office said Thomas has community support and Railsback’s family does not object to his release.

February 15, 2024 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (4)

"Victims’ Participation in an Era of Multi-Door Criminal Justice"

The title of this post is the title of this new article now on SSRN authored by Béatrice Coscas-Williams, Hadar Dancig-Rosenberg and Michal Alberstein. Here is its abstract:

Victims’ right to participate in their cases — to hear and be heard — has gained formal recognition in both common law and continental legal cultures over the past two decades. Paradoxically, even as victims’ rights are acknowledged, their participation in the judicial process is increasingly circumscribed due to the proliferation of abbreviated and efficiency-oriented judicial procedures.  Focusing on this paradox, this Article uncovers and analyzes the level of victims’ participation in an era of convergence and transformation of legal cultures and traditions.  By exploring new ways to conceptualize the role of victims within contemporary criminal legal systems, this Article explores various and creative paths to enhance victims’ participation in an era characterized by the vanishing trial and a multi-door criminal justice system.

February 15, 2024 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

The Sentencing Project produces short policy document on mandatory minimums

I learned via email this morning that The Sentencing Project has produced this short new document titled "How Mandatory Minimums Perpetuate Mass Incarceration and What to Do About It."  I was hoping this document might have some new data or analyses about the contribution of mandatory minimums to incarceration levels, but it primarily reviews the standard arguments against mandatory minimums and provides a few anecdotes about some recent reform efforts to reduce or increase use of mandatory minima.  Here is how the document gets started:

Eliminating mandatory minimum sentencing laws is essential to creating a more just and equitable criminal justice system.  Widespread evidence shows that mandatory minimum sentences produce substantial harm with no overall benefit to crime control.  Determined by lawmakers rather than judges, these sentences represent a uniquely American approach to sentencing that has accelerated prison growth.  They constrain judicial discretion, deepen racial disparities in the criminal legal system, and cause far-reaching harm to individuals, families, and communities.

Despite building bipartisan agreement that such sentences are a policy failure, mandatory minimum sentences continue to be promoted as a tool to combat crime, even as the public signals waning support.  This fact sheet identifies the main issues associated with mandatory minimum sentences.  It documents the modest progress toward ending them, as well as efforts to reinstate them, and offers solutions to hasten change that will aid in ending mass incarceration.

February 15, 2024 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (7)

Wednesday, February 14, 2024

Noting the first beneficiaries of Minnesota’s felony murder reforms

A helpful reader made sure I did not miss this effective review of the recent sentencing consequences of Minnesota's recent reforms of its felony murder laws.  Here are part of the story and some context:

Two women convicted in connection with a 2017 home invasion murder were released from prison last week because of a change in state law. Megan Christine Cater, 25, of Lakeville and Briana Marie Martinson, 27, of Prior Lake are the first people to be released from custody after legislators overhauled Minnesota’s felony murder statute.

While the two admitted taking part in the burglary of Corey Elder’s apartment, a judge found that they did not share responsibility for his murder....

Cater and Martinson were not in the bedroom with [Maurice] Verser when he fired the fatal shot. But in a deal with prosecutors, the women pleaded guilty to aiding and abetting second-degree unintentional murder. In 2018, Judge Kerry Meyer sentenced them to 13.5 years each. Then in 2023, lawmakers in the DFL-led Minnesota Legislature put new restrictions around the state’s felony murder statute. Under the old law, prosecutors could charge a person with aiding and abetting murder during the commission of an underlying felony no matter their role in that felony.

Mary Moriarty, a longtime public defender who was elected Hennepin County Attorney in 2022, supports the change. “It is not fair when two people get charged with murder when one of them pulled the trigger and the other one had no idea this was going to happen,” Moriarty said. “Certainly both people have to be held accountable, but they should be held accountable for what they actually do.”

Moriarty noted that under the old felony murder law, a killer who signs a plea deal could wind up with a shorter sentence than his accomplice who drove the getaway car and is convicted at trial.

The revised statute limits felony murder prosecutions to people who caused the victim’s death, intended to cause it, or were major participants in the underlying crime. Legislators made the changes retroactive. That allowed Cater and Martinson to petition the court to vacate their murder convictions. Last week, Judge Meyer resentenced Martinson and Cater to 57 and 69 months respectively for burglary with a firearm. Because they’d already served that time, the two left prison....

In an email to MPR News, Cater’s attorney and University of Minnesota law professor JaneAnne Murray said that Minnesota’s old felony murder law has resulted in sentences for too many defendants that are disproportionate to their culpability. “Our client was only 19 at the time of her offense, and she did not intend or participate in a murder,” Murray wrote. “It is right and just that she, and many similarly-situated to her, get punished for what they did, and not for the conduct of others.”

Bobbie Elder, Corey Elder’s mother, countered that the women were major participants in the burglary and their felony murder convictions should stand, even under the new law. “Megan Cater and Briana Martinson were the masterminds behind this entire thing,” Elder told MPR News. “They were the planners of it. They were the ones who ensured that there was a gun on scene. If all they wanted to do was rob somebody, they wouldn’t have had to go to the extremes of planning what they did....”

Last month Meyer rejected Tarrance Murphy’s bid for a sentence reduction after determining that he was a major participant in the robbery and admitted pointing the gun at Townsend.

Long-standing complaints about felony-murder laws among academics and many others typically focus on the failure of such laws to match offense levels and sentencing outcomes to true culpability, especially in situations in which a defedant has little or no culpable mens rea with respect to someone else's killing.  But, as the comments by the mother of the victim here highlights, judgments about culpability can often be highly contested.  This story suggests that the new Minnesota law give judges consideable discretion to assess culpability in this context (though that has to be challenging to do many years after an offense).

February 14, 2024 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Should AI be treated like a firearm for federal sentencing purposes?

The question in the title of this post is prompted by a speech given today by Deputy Attorney General Lisa Monaco "on the Promise and Peril of AI."  The full speech, as prepared for delivery, is available at this link, and here are excerpts including the portion leading to the query in the title of this post:

Today, as the Chief Operating Officer and the Number 2 person in the Justice Department, I — along with Attorney General Garland — am laser-focused on what may well be the most transformational technology we’ve confronted yet: artificial intelligence, and what it portends for our core mission.

Every new technology is a double-edged sword, but AI may be the sharpest blade yet. It has the potential to be an indispensable tool to help identify, disrupt, and deter criminals, terrorists, and hostile nation-states from doing us harm....

[But] we’ve already seen that AI can lower the barriers to entry for criminals and embolden our adversaries. It’s changing how crimes are committed and who commits them — creating new opportunities for wanna-be hackers and supercharging the threat posed by the most sophisticated cybercriminals.....

The U.S. criminal justice system has long applied increased penalties to crimes committed with a firearm.  Guns enhance danger, so when they’re used to commit crimes, sentences are more severe.

Like a firearm, AI can also enhance the danger of a crime.

Going forward, where Department of Justice prosecutors can seek stiffer sentences for offenses made significantly more dangerous by the misuse of AI — they will.  And if we determine that existing sentencing enhancements don’t adequately address the harms caused by misuse of AI, we will seek reforms to those enhancements to close that gap.

This approach will deepen accountability and exert deterrence. And it reflects the principle that our laws can and must remain responsive to the moment.

I am still thinking through the firearm/AI analogy, and I am not sure it really works. But I do get the idea that "AI can lower the barriers to entry for criminals" and that AI can, in various ways, make some criminal threats and dangers greater.  Just how our sentencing systems should deal with AI-involvement in crime is a topic sure to be of great interest in the years ahead.

February 14, 2024 in Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (0)

Is wilted Garden State clemency about to be spruced up?

The (not-that-clever) question in the title of this post is my reaction to this new press piece headlined "NJ Gov. Murphy says ‘broad’ groups will be eligible for clemency soon."  Here are excerpts:

New Jersey Gov. Phil Murphy says large groups of people convicted of crimes could become eligible for clemency soon. “I would hope sooner than later, within the next month or two, we're going to unveil a process … that will be, I think, revolutionary relative to what you've seen in New Jersey historically,” Murphy said Tuesday during the monthly “Ask Governor Murphy” call-in show on WNYC.

Murphy said the initiative would look at “broad categories of individuals who would automatically be eligible upon application for accelerated consideration” of clemency.  The governor, however, stopped short of saying who might receive clemency, or for what types of crimes.

Murphy’s comments expand the brief mention he made last month during his State of the State address, when he promised to unveil a clemency initiative “that will ensure we live up to our promise as the state for second chances.”

Since taking office in 2018, the governor has not taken clemency actions, either through reducing prisoners’ sentences or granting pardons, Politico reports.  On Tuesday, Murphy said the initiative is still being worked on, but promised that New Jerseyans would hear more about it soon.  Pressed on why he has yet to take any clemency actions, Murphy said that’s “not atypical” for a governor. He said that his impression is that most officials with clemency authority wait until the end of their time in office to make those decisions.

Murphy’s predecessor, former Gov. Chris Christie, issued 55 clemency orders during his time in office, and about half happened in the final days of his term....

During Tuesday’s show, Murphy said he shared a caller’s frustration over years-long backlogs in the state’s expungement process.  In 2019, Murphy signed a law allowing New Jerseyans to expunge their records of most crimes, with exceptions such as murder and sexual assault, if they kept their record clean for ten years. But in October 2023, the New Jersey Office of the Public Defender filed a class-action lawsuit against the state police over delays in processing expungement orders.

I do not know much about clemency practices "i New Jersey historically," though I do know that serving as a Governor for more than six years without a single clemency grant is some pretty ugly history.  But even the most wilted gardens, and Garden State practices, have the potential to be revitalized, and I am pleased to hear Gov Murphy apparently has something better in the works.

As vaguely described above, I am left wondering if the Jersry Boys are drawing inspiration and guidance from the work of Governor Mike DeWine here in Ohio with our great Expedited Pardon Project.  (I am biased in my praise for Ohio's EPP effort in part because OSU's Drug Enforcement and Policy Center (DEPC) has been playing a significant role helping the Governor's clemency work through this ground-breaking program and we recently celebrated at OSU the many pardons that Gov DeWine has already granted.)  There would be a sound basis for other Governors to follow the lead and clemency achievements of Ohio Gov DeWine here, and I hope were hear more soon about what Gov Murphy has in the works.

A few ilder posts about the Ohio "Expedited Pardon Project":

February 14, 2024 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Tuesday, February 13, 2024

"Principles of Prosecutor Lenience"

The title of thid post is the title of this new essay authored by Jeffrey Bellin now available via SSRN. Here is its abstract:

Once “the Darth Vader of academic writing,” American prosecutors are making a comeback.  In recent years, “progressive prosecutors” have leveraged the power of lenience to “reform the criminal justice system from the inside.”  There is so much scholarly enthusiasm for this project that the existing commentary can be summarized as offering a one-word principle to govern considerations of prosecutorial lenience: “yes.”

But American criminal law covers a broad array of offenses with substantial differences in punitiveness across jurisdictions and courts.  Even harsh critics of the system’s severity tend to pivot when it comes to certain offenses, like crimes committed by police.  Consequently, there are profound questions about the when and why of lenience, and particularly prosecutor lenience.

This Symposium Essay offers a skeletal framework for evaluating prosecutor lenience. It defines prosecutorial lenience and proposes three principles to guide its exercise: prosecutor lenience should be (1) non-arbitrary, (2) equal, and (3) abundant.  It then applies the principles in common prosecutorial lenience scenarios, like insufficient evidence, justice-based lenience, transactional lenience, triage, nullification, and mercy. Interestingly, the analysis reveals that, in some circumstances, the principles conflict.  Perhaps most significantly, insisting on the first two principles can jeopardize the third.  This means that prosecutors, and their critics, will have to consider not just the overall desirability of lenience, but tradeoffs between the quality of prosecutorial lenience and its quantity.

February 13, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (10)

"The problem with criminal records: Discrepancies between state reports and private-sector background checks"

The title of this post is the title of this new article just published in Criminology and authored by Sarah Lageson and Robert Stewart. Here is its abstract:

Criminal records are routinely used by employers and other institutional decision-makers who rely on their presumed fidelity to evaluate applicants.  We analyze criminal records for a sample of 101 people, comparing official state reports, two sources of private-sector background checks (one regulated and one unregulated by federal law), and qualitative interviews. 

Based on our analysis, private-sector background checks are laden with false-positive and false-negative errors: 60 percent and 50 percent of participants had at least one false-positive error on their regulated and unregulated background checks, and nearly all (90 percent and 92 percent of participants, respectively) had at least one false-negative error. 

We define specific problems with private-sector criminal records: mismatched data that create false negatives, missing case dispositions that create incomplete and misleading criminal records, and incorrect data that create false positives.  Accompanying qualitative interviews show how errors in background checks limit access to social opportunities ranging from employment to education to housing and violate basic principles of fairness in the legal system.

February 13, 2024 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (22)

Monday, February 12, 2024

US Sentencing Commission publishes two public data briefings to inform comments on some proposed guideline amendments

I was intrigued to discover that the US Sentencing Commission's website today announces "Data Briefings on Proposed Amendments" to announce the publishing of "supplemental data to inform public comment on recently proposed amendments relating to youthful individuals and simplification."  This webpage, in turn, links to two distinct briefing pages that are introduced this way:

Supplemental Data: 2024 Proposed Amendment Relating to Simplification

The Commission is seeking public comment on proposed amendments to the federal sentencing guidelines.  In order to further inform commenters, the charts below depict data relating to application of departure provisions other than §5K1.1 or §5K3.1 (either alone or in conjunction with §5K1.1 or §5K3.1), i.e., "Other Departure."

Public Data Briefing: 2024 Proposed Amendment Relating to Youthful Individuals

The Commission is seeking public comment on proposed amendments to the federal sentencing guidelines. Commission staff prepared a data presentation to inform public comment on a two-part proposed amendment related to youthful individuals. This briefing presents data on the impact of juvenile adjudications on criminal history scoring and sentencing outcomes to help inform public comment.

Disappointingly, the USSC has not yet published any detailed data concerning its proposed amendment to the Guidelines Manual that includes three options to address the use of acquitted conduct for purposes of determining a sentence.  I am not sure if the lack of data on this front bodes well or ill for guideline reforms on that front.

February 12, 2024 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)