Thursday, June 13, 2024

US Sentencing Commission releases big report on "Methamphetamine Trafficking Offenses in the Federal Criminal Justice System"

Via email, I received news of this big new report from the US Sentencing Commission titled "Methamphetamine Trafficking Offenses in the Federal Criminal Justice System."  This 66-page report provides lots of important facts and figure about the drug offense that is now the basis for the most and most severe federal drug sentences in recent years.  This USSC webpage has an overview and key findings from the report and this USSC news release provide a helpful summary:

new U.S. Sentencing Commission study found substantial increases in both the prevalence of federal methamphetamine trafficking sentences, and the purity levels of methamphetamine trafficked in the United States.

Over the past 20 years, the number of individuals sentenced federally for methamphetamine trafficking has risen by 168 percent, with methamphetamine now accounting for nearly half (49%) of all federal drug trafficking cases.

The study also revealed that the methamphetamine tested in fiscal year 2022 was on average over 90% pure with a median purity of 98%.  Furthermore, the methamphetamine tested was uniformly highly pure regardless of whether it was sentenced as methamphetamine mixture (91% pure on average), methamphetamine actual (93%) or Ice (98%).  By comparison, in 2000, the Drug Enforcement Administration reported that methamphetamine purity ranged from 10% to 80% depending on location.

Methamphetamine is one of only five controlled substances where purity affects federal statutory and guideline penalties, resulting in higher penalties when purity levels are confirmed by laboratory testing.  By federal statute, it takes ten times as much mixture compared to actual methamphetamine to trigger mandatory minimum penalties.

Because methamphetamine penalties are based in part on purity, penalty exposure and sentencing outcomes are impacted by confirmed purity levels.  The Commission’s study found that testing practices varied across the nation and that testing rates across judicial circuits were inconsistent — ranging from under 60% to over 80% of the time.  Notably, methamphetamine seized in southwest border districts was more likely to undergo laboratory testing (85%) than in non-border districts (70%).

Methamphetamine trafficking sentences averaged 91 months in fiscal year 2022, the longest among the major federal drug trafficking offenses, including fentanyl (65 months) and heroin (66 months). In addition, methamphetamine trafficking offenses carried mandatory minimum penalties more often (74%) than all other drug trafficking offenses (57%).

June 13, 2024 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes | Permalink | Comments (1)

The Sentencing Project releases report titled "Incarceration and Crime: A Weak Relationship"

The Sentencing Project this morning released this new 18-page research brief titled “Incarceration & Crime: A Weak Relationship.” The report assembles a variety of data and research in keeping with the report's thesis that there is only a weak relationship between incarceration and crime.  Here are a couple of passages from the body of the report:

Scholars examining state imprisonment trends during the period of extreme growth conclude that incarceration contributed only modestly to the crime drop.  They find that in the 1990s mass incarceration accounted for as much as 35% or as little as 6% of the crime drop.  These estimates depend on the type of crime under investigation as well as the methodology and assumptions used by analysts.  Since the turn of the century, mass incarceration appears to have made almost no contribution to the crime drop.  Reviewing the four-decade period when incarceration levels increased without any consistent relationship with crime rates, the National Research Council has concluded that “the increase in incarceration may have caused a decrease in crime, but the magnitude of the reduction is highly uncertain and the results of most studies suggest it was unlikely to have been large.”...

As some lawmakers pivot to widen the reach of the criminal legal system in response to public concern, recent state trends illustrate that less imprisonment often happens alongside improvements to community safety.  Over a nine year period (2013-2022), 46 states reduced the footprint of their prison population while experiencing crime declines.  In some states, these declines were substantial.

June 13, 2024 in National and State Crime Data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (6)

Wednesday, June 12, 2024

Notable Washington Post "Abused by the badge" investigation includes notable data on sentencing outcomes

The Washington Post today released a series of remarkable pieces as part of an investigative series it calls "Abused by the badge."  The subheadline of this main piece summarizes the main themes: "A Washington Post investigation found hundreds of law enforcement officers in the United States have sexually exploited kids. Many avoid prison time."  Here are additional links to the newest pieces in the series:

This Reason piece about the Post's findings helpfully summarizes some of the key sentencing stories:

The investigation revealed a staggering lack of accountability for officers who sexually abuse minors — finding not only that convicted officers often received paltry sentences, but that police departments sometimes rehired officers with child sex abuse convictions.

The Post's analysis looked at thousands of court filings, as well as The Henry A. Wallace Police Crime Database, the county's most comprehensive database of police arrests.  The authors found that, between 2005 and 2022, around 17,700 police officers were charged with crimes — and 1 in 10 of those were charged with a crime involving the sexual abuse of minors.

The crimes officers were charged with varied, though most charges were for a few specific offenses. According to the Post's analysis, 39 percent of officers charged with child sexual abuse crimes were charged with rape.  Twenty percent were charged with crimes related to child sexual abuse material (another term for child pornography) and 19 percent were charged with forcible fondling.

Eighty-three percent of charged officers were convicted.  However, only 61 percent of convicted officers received prison time.  Fifteen percent received local jail sentences, and a striking 24 percent received sentences as light as probation, fines, and community service.  But even those imprisoned received relatively light sentences. Half were sentenced to less than five years in jail.

Why did so many officers seem to get off easy for heinous sex crimes?  According to the Post, it comes down to how prosecutors and judges treat police officers. "Prosecutors have broad discretion in the types of charges they bring, the plea bargains they offer and the cases they are willing to take to trial," the Post's analysis reads. "Judges play a critical role at sentencing hearings in determining what punishment officers deserve."

Because there is no national data about sentencing outcomes in cases involving other types of persons sexually abusing minors, it is impossible to compare the outcomes detailed by the Post for officers to other sets of offenders.  But the Post's suggestion that these officer offenders are being treated relatively leniently seems sound.  And many might reasonably argue that secual abuse of a minor committed my an officer ought to lead to even harsher punishment than would be given to other offenders, especially if the officer used his position to facilitate the crime.

June 12, 2024 in Data on sentencing, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (4)

"The White House isn’t ruling out a potential commutation for Hunter Biden after his conviction"

The title of this post is the headline of this notable new AP article.  Here is how it begins: 

The White House is not ruling out a potential commutation for Hunter Biden, the president’s son who was convicted on three federal gun crimes and is set to be sentenced by a judge in the coming months.  “As we all know, the sentencing hasn’t even been scheduled yet,” White House press secretary Karine Jean-Pierre told reporters Wednesday on Air Force One as President Joe Biden traveled to the Group of Seven summit in Italy.

She said she has not spoken to the president about the issue since the verdict was delivered Tuesday. Biden definitively ruled out pardoning his son during an ABC News interview last week. “He was very clear, very upfront, obviously very definitive,” Jean-Pierre said of the president’s remarks about a potential pardon.  But on a commutation, “I just don’t have anything beyond that.”

A pardon is an expression of forgiveness of a criminal offense that restores some rights, such as voting, that a person loses upon conviction. Meanwhile, a commutation reduces a sentence but leaves the conviction intact.

The position from the White House is a shift from what it said in September, when Jean-Pierre was asked whether the president would “pardon or commute his son if he’s convicted.” The press secretary responded at the time that “I’ve answered this question before. It was asked of me not too long ago, a couple of weeks ago. And I was very clear, and I said no.”

Update on June 13This AP article reports on comments made by President Biden on this topic.  It startes this way: "President Joe Biden said Thursday that he will not use his presidential powers to lessen the eventual sentence that his son Hunter will receive for his federal felony conviction on gun crimes."

June 12, 2024 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Rounding up some early accounts of how Hunter Biden will be sentenced

I have already seen a handful of commentaries mapping out the dynamics of the federal sentencing of Hunter Biden following his conviction on three felonies.  This New York Times piece, headlined "Will Hunter Biden Go to Jail? Here’s What His Sentence Could Look Like," provides these useful particulars:

According to the most recent manual published by the United States Sentencing Commission, which sets recommended sentencing guidelines, someone in Mr. Biden’s position would typically face 15 to 21 months’ imprisonment for offenses related to the unlawful receipt, possession, or transportation of firearms.

From 2019 to 2023, just 52 defendants were sentenced in a similar category as Mr. Biden, and 92 percent were sentenced to serve prison time with a median prison term of 15 months, according to the commission’s data. Around 8 percent of people in that category received probation or a fine.

But judges frequently depart from the suggested guidelines when handing down a sentence and may reduce the time spent in prison in light of the particular circumstances unique to each case.

And here are a few other press pieces discussing some sentencing issues at some length:

From CBS News, "Is Hunter Biden going to prison? What to know about the possible sentence after his conviction"

From PBS News Hour, "What federal guidelines suggest for Hunter Biden’s sentencing"

From the New York Post, "Hunter Biden judge once gave stiff sentence in similar gun case"

From USA Today, "What's next for Hunter Biden? Sentencing, likely appeal and looming trial on tax charges"

June 12, 2024 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (18)

Tuesday, June 11, 2024

Missouri completes execution of double murderer who proclaimed his innocence

As detaile in this AP article, a "man convicted of killing his former lover and her husband in what prosecutors described as a fit of rage was executed Tuesday evening in Missouri."  Here is more:

David Hosier, 69, was pronounced dead at 6:11 p.m. following a single-dose injection of the sedative pentobarbital at the state prison in Bonne Terre. Hosier was convicted of the 2009 killings of Angela and Rodney Gilpin in the state capital of Jefferson City.

Hosier turned his head a couple of times and breathed hard twice as the drug was administered. All movement stopped within seconds, even as his spiritual adviser seated next to him, the Rev. Jeff Hood, continued to pray.

Investigators said Hosier had a romantic relationship with Angela Gilpin and was angry with her for breaking it off and reconciling with her husband.  Hosier maintained until the end that he was innocent and shouldn’t have been convicted on circumstantial evidence.

The way was cleared Monday when Gov. Mike Parson declined to grant clemency, citing Hosier’s “lack of remorse.” Parson, a Republican and former county sheriff, has overseen 10 executions since taking office in 2018. Hosier’s lawyers said no court appeals were pending in the hours before the scheduled execution....

In previous interviews with The Associated Press, Hosier acknowledged having an affair with Angela Gilpin that she ended before getting back with her husband.  In September 2009, the two were fatally shot near the doorway to their apartment....

Hosier was the seventh person executed in the U.S. this year and the second in Missouri.  Brian Dorsey was executed in April for killing his cousin and her husband in 2006.  Missouri is scheduled to execute another man, Marcellus Williams, on Sept. 24, even though Williams is still awaiting a hearing on his claim of innocence in the 1998 stabbing death of Lisha Gayle.

June 11, 2024 in Death Penalty Reforms | Permalink | Comments (7)

BJS releases small accounting with "Preliminary Data Release - Jails (2023)"

THe Bureau of Justice Statistics sent me a couple emails today making sure I saw it published online here its latest data on jail populations in the US.  Here is the text that starts the report:

The Bureau of Justice Statistics provides key jail statistics prior to release of the annual jails report.  The statistics below include the number of persons held in local jails, by inmate demographics and conviction status; the number of admissions to jail; and jail incarceration rates, from 2013 to 2023.

Statistics from 2023, the latest data year, are preliminary and may be updated once BJS publishes the final data in Jail Inmates in 2023 – Statistical Tables, which is scheduled for release in late 2024.  

Key findings

  • At midyear 2023, local jails held 664,200 persons in custody, similar to the year before (663,100).
  • Jails reported 7.6 million admissions from July 1, 2022 to June 30, 2023.  While this represents a 4% increase over the 7.3 million admissions the year before, annual admissions were 35% lower than 10 years ago (11.7 million).
  • Local jails held 95,100 females at midyear 2023, accounting for 14% of the confined population.
  • At midyear 2023, 70% of the jail population (467,600) was unconvicted and awaiting court action on a current charge or being held in jail for other reasons.  The remaining 30% (196,600) was convicted and either serving a sentence or awaiting sentencing on a conviction.

June 11, 2024 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Notable new Second Circuit opinion limits grounds for granting 3582(c)(1)(A) sentence reduction

A helpful reader made sure I did not miss a notable new opinion today from a Second Circuit panel reversing a notable sentence reduction under 18 U.S.C. § 3582(c)(1)(A).  The 28-page ruling in US v. Fernandez, No. 22-3122 (2d Cir. June 11, 2024) (available here), gets started this way:

This appeal raises questions as to which claims and arguments a district court is permitted to consider as “extraordinary and compelling reasons” in support of a motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A), commonly known as a motion for “compassionate release.” Defendant-Appellee Joe Fernandez, then imprisoned in a federal penitentiary, filed this compassionate-release motion seeking a reduction of the mandatory life sentence he was serving for his conviction of murder for hire, in violation of 18 U.S.C. § 1958.

Patrick Darge had hired Fernandez as a “backup shooter” in a scheme to murder two Mexican drug cartel members who had come to New York City to collect payment for more than 270 kilograms of cocaine the cartel had sold to local drug trafficker Jeffrey Minaya.  While Darge (and several other codefendants implicated in the scheme) pleaded guilty to various narcotics, firearms, and murder charges and cooperated with the government, Fernandez went to trial and was convicted.

In 2021, Fernandez filed the instant motion for compassionate release in the district court arguing, in relevant part, that two “extraordinary and compelling reasons” warranted his release: (1) his potential innocence in light of the questionable credibility of Darge, the government’s key witness at trial, and (2) the significantly lower sentences imposed on Fernandez’s co-defendants.  The United States District Court for the Southern District of New York (Alvin K. Hellerstein, Judge) granted the motion on these grounds, reduced Fernandez’s sentence to time served, and ordered his release.

The government appealed, arguing that the district court abused its discretion because potential innocence is never a permissible “extraordinary and compelling reason[]” for a sentence reduction within the meaning of 18 U.S.C. § 3582(c)(1)(A), and that Fernandez’s sentencing disparity is not an “extraordinary and compelling reason[]” for a sentence reduction on the facts of this case.  We agree with the government that a compassionate release motion is not the proper vehicle for litigating the issues Fernandez has raised, irrespective of whether his mandatory life sentence is unjust. We therefore reverse the judgment of the district court.

The discussion of sentencing disparity as a legal basis for possible sentence reduction is quite nuanced, and it includes a lengthy footnote starting with this sentence: "We cannot foreclose the possibility that significant sentencing disparities, even between a defendant who went to trial and a co-defendant who pleaded guilty and cooperated, might, in some unusual circumstances, warrant a finding of 'extraordinary and compelling' reasons to grant a sentence reduction."   In addition, the innocence discussion is also dynamic.  But, nuances aside, this ruling would seem to greatly hinder claims of actual innocence or general co-defendant sentencing dispartity as a basis for seeking a sentece reduction.

June 11, 2024 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (11)

What facts should matter (and not matter) most at federal sentencing after Hunter Biden is convicted by jury on three felony counts?

These are heady times for historic sentencing proceedings.  As New York state actors are working through the process of preparing for former President Donad Trump's state sentencing after his conviction last month on 34 state felony counts following a lengthy trial, we know now that federal actors need to start working through the process of preparing for current President Joe Biden's son, Hunter, to be federally sentenced after his conviction today on three federal felony counts following a short trial.  Here are the basics via the New York Times' latest live update:

A jury in Wilmington, Del., on Tuesday found Hunter Biden, President Biden’s long-troubled son, guilty of three felony counts of lying on a federal firearms application in 2018, a grievous personal blow to the Biden family as his father enters the final months of a brutal re-election campaign.  He could face up to 25 years in prison, but first-time offenders who did not use their weapons to commit a violent crime typically receive no jail time....

Here’s what else to know:

A sentencing date was not set: The judge in the case, Maryellen Noreika, did not set a date for sentencing, but said it would typically be about 120 days after the verdict — that’s early October, or about a month before the election. Although the maximum possible sentence Mr. Biden faces is more than two decades behind bars and $750,000 in fines, federal sentencing guidelines call for a fraction of that penalty.

No pardons are coming: President Biden has said he will not pardon his son.  The president kept his distance from the trial and was out of office on Oct. 12, 2018, when Hunter Biden asserted he was drug-free on a background check at a time when he was addicted to crack cocaine.

His legal troubles are not over: The Delaware case, brought by the special counsel David C. Weiss, is widely regarded as the least serious of the two federal indictments against Hunter Biden brought last year.  He still faces serious tax charges in Los Angeles stemming from his failure to pay the government during a yearslong crack, alcohol and spending binge; the trial is scheduled to start in September.

I have not yet sought to work through the likely (advisory) guideline calculations for Hunter Biden, but I have already seen reports that the estimated guideline range would be for over a year of federal prison time.  Even after the Supreme Court made the guidelines advisory, federal judges are duty bound to still consider them at sentencing along with the other sentencing factors detailed by Congress in 18 USC § 3553(a).

But, of course, many of the instructions in 3553(a) are quite vague -- eg, judges must consider the "nature and circumstances of the offense and the history and characteristics of the defendant."  That vague phrase and others in federal sentencing law prompt the question in the title of this post.  Should Judge Noreika give particular weight to, or make a focused effort to limit her consideration of, Hunter Biden's struggles with addiction at the time of his offenses?  His indictments on various other alleged crimes and other alleged misbehaviors?  The wide range of unique consequences associated with being the son of a president?

June 11, 2024 in Celebrity sentencings, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (35)

Monday, June 10, 2024

Flagging challenge to Arizona's suspect application of Miller juve LWOP limis

Adam Liptak has this new piece at the New York Times detailing a pending Supreme Court challenge to how Arizona had dealt with Miller's Eighth Amendment limit on juve LWOP sentences. Here is the piece's full headline: "In Arizona, Life Sentences for Juveniles Test Supreme Court Precedents: The justices will soon decide whether to hear a case that could affect more than two dozen youths sentenced to die in prison." Here is an excerpt:

The new case involves Lonnie Bassett, who was convicted of two murders committed when he was 16. When he was sentenced in 2006, Arizona law did not give the judge the option of sentencing him to anything but life in prison without the possibility of parole.

In a unanimous opinion last year, the Arizona Supreme Court did not dispute that. But it said an idiosyncratic feature of the state law, allowing judges to choose between “natural life” without the possibility of release in any fashion and life without parole but with the theoretical possibility of clemency from the governor, rendered it constitutional.

Rejecting the usual understanding of the governing precedent, the court said, “Miller and its progeny do not specifically require the availability of parole when sentencing a juvenile offender.”

Lawyers for Mr. Bassett asked the U.S. Supreme Court to intervene, saying that his case could determine the fates of more than two dozen other juvenile offenders. The case, they wrote, “presents exceptionally significant questions about gamesmanship and the supremacy of federal law.”

June 10, 2024 in Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

FBI reports remarkable crime drop to begin 2024

This official FBI press release reports on the basics of today's release here of the FBI's Quarterly Uniform Crime Report (Q1). Here is the great news:

The Quarterly Uniform Crime Report (Q1), January-March, 2024, provides a preliminary look at crime trends for January through March 2024 compared to January through March 2023.  A comparison of data from agencies that voluntarily submitted at least two or more common months of data for January through March 2023 and 2024 indicates reported violent crime decreased by 15.2 percent.  Murder decreased by 26.4 percent, rape decreased by 25.7 percent, robbery decreased by 17.8 percent, and aggravated assault decreased by 12.5 percent.  Reported property crime also decreased by 15.1 percent.

Jeff Asher in this substack post at Jeff-alytics provides this important context:

The FBI released data for the first quarter of 2024 today reporting a massive decline in crime across the board in the first quarter of 2024 compared to the first quarter of 2023.  The data release only covers three months of data and around 77 percent of the nation’s population, and it is extremely preliminary with agencies having months to report new incidents and correct problems.  In other words, crime almost certainly declined nationally in the first three months of 2024 compared to the first three months of 2023, but the FBI’s data is almost certainly overstating that decline.,,,

Overall, my impression is that the trend direction shown in the FBI data through the first quarter is likely correct but that the overall percent changes are almost certainly overstated by a good bit. Violent and property crime are probably not down 15 percent nationally (which would be far and away the largest one year decline ever recorded in both categories), but they are likely down a healthy amount.  Murder is down a ton, probably historically so at this point in the year, but probably not 25 percent nationally.

June 10, 2024 in National and State Crime Data | Permalink | Comments (0)

As SCOTUS heads into homestrech, any prediction for any criminal justice "sleeper" opinions?

A relatively boring new order list from the Supreme Court this morning has lead my mind to wandering and wondering about what rulings the Justices will issue this Thursday and in the weeks to come.   The Justices still have nearly 30 cases to resolve, which means an average of nearly ten per week over the next three weeks if they hope to wrap up the Term by the end of June.  I would guess we should expect, maybe, five rulings this week, then closer to ten next week and then a final big closing batch the last week of June.  But that's a lot to get done in a short period, and maybe the Justices will need a few days into July to wrap it all up.

Whatever the particulars of the fin-de-terme pacing by SCOTUS, we know a whole bunch of major rulings are coming soon on criminal and non-criminal issues.  "Major" non-criminal rulings are coming on topics ranging from abortion to federal agency powers to social media moderation to federal tax authority.  "Major" criminal rulings are coming in topics ranging from presidential criminal immunity to key Jan 6 charges to Second Amendment and Eighth Amendment limits on criminal statutes.  And, of course, there are a number of "minor" cases still pending, and I wanted to flag a few that, depending on how the Justices rule, could certainly turn into "major" cases. 

As the title of this post reveals, I think of "minor" cases that turn into "major" cases as "sleepers," and I would categorize one of my favorite sentencing cases, Blakely v. Washington, as a sleeper.  (The Blakely precursor, Apprendi v, New Jersey, likely ought also be considered a sleeper, but the follow-up of US v. Booker certainly was not flying below the radar before it was decided.)  And perhaps the Sixth Amendment is a sleeper amendment, as the two cases on my current sleeper list are Sixth Amendment matters (with thanks to SCOTUSblog for links/descrptions):

Smith v. ArizonaNo. 22-899 [Arg: 1.10.2024]
Issue(s): Whether the confrontation clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a nontestifying forensic analyst, on the grounds that (a) the testifying expert offers some independent opinion and the analyst’s statements are offered not for their truth but to explain the expert’s opinion, and (b) the defendant did not independently seek to subpoena the analyst.
 
Erlinger v. U.S.No. 23-370 [Arg: 3.27.2024]
Issue(s): Whether the Constitution requires a jury trial and proof beyond a reasonable doubt to find that a defendant’s prior convictions were “committed on occasions different from one another,” as is necessary to impose an enhanced sentence under the Armed Career Criminal Act.

There are a number of other lower-profile criminal cases which could prove quite interesting for various reasons, eg, Diaz v. U.S.No. 23-14 and Snyder v. U.S.No. 23-108, but Smith and Erlinger seem to me like the cases getting relatively less attention for which a "big" SCOTUS ruling could end up having a surprisingly big impact.

I am certain my ivory tower realities (and my particular interest in sentencing topics) influences my sleeper list.  I'd be eager to hear others' views in the comments, either about other possible criminal justice sleeper cases or about any of the higher-profie criminal cases (eg, Rahimi, Fischer, Grants Pass, Trump) that they think might produce an opinion that defies expectations.

June 10, 2024 in Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sunday, June 9, 2024

A big (but still abridged) Sunday round-up of lots of (non-capital) stories major and minor

In this post a few days ago, I flagged a handful of notable capital sentencing stories making headlines at the start of June. I also noted that I hoped to find time to do a broader round-up of a broader array of sentencing news and commentary.  A little extra time allowws me the chance to note these pieces (which are still not all those of note in recent days):

From the AP, "Trump’s case casts a spotlight on movement to restore voting rights to those convicted of felonies"

From The Atlantic, "Why California Is Swinging Right on Crime"

From Empower Mississippi, "Prosecutorial Overreach: Not Just a Trump Problem"

From Forbes, "Federal Prisoner’s Dilemma, Cell Phone Or Not"

From KRCA, "Gov. Newsom, Democratic leaders are trying to negotiate Prop 47 reform off the November ballot"

From PennLive, "Value of human body parts becomes sentencing issue in federal trafficking case"

From Politico, "Cooking someone to death’: Southern states resist calls to add air conditioning to prisons"

From Real Clear Politics, "Restoring Confidence in DOJ Requires Accountability, New Leadership"

From Reason, "Federal Supervised Release Is a Wasteful Mess. A Bipartisan Bill in Congress Is Trying To Fix That."

From Rolling Stone, "Feds Closed a Prison Notorious for Abuse. Things Only Got Worse"

From NBC News, "Trump probation interview set for Monday after hush money conviction"

From the New York Times, "Alvin Bragg’s Next Decision on Trump Presents a Political Quandary"

From the Washington Examiner, "Sentencing reform should bring accountability and redemption"

June 9, 2024 in Recommended reading | Permalink | Comments (18)

"Positive Credentials That Limit Risk: A Report on Certificates of Relief"

The title of this post is the title of this notable new report produced by the Collateral Consequences Resource Centerand authored by Margaret Love and Nick Sibilla.  Here is the start of the report's abstract:

This report deals with a form of relief from the collateral consequences of a conviction that is less far-reaching than expungement or other forms of record clearing, but is potentially available to more people at an earlier point in time. These so-called “certificates of relief” do not limit public access to a person’s record, but they may be effective in reducing many conviction-related disadvantages in the workplace, including by providing employers and others with protection against the risk of being sued for negligence.

At least as long as expungement and sealing remain unavailable to many people with a felony conviction record, or are available only after lengthy waiting periods, certificates of relief can provide an important boost to a state’s reentry scheme, and serve as a bridge to more thorough forms of record relief.  Yet it appears that certificates have been largely ignored in many states by the courts that are empowered to dispense them, as well as by the advocacy community whose clients might benefit from them.  At the same time, they are beginning to be widely used by prison and parole agencies to encourage employment opportunities and otherwise facilitate reentry for those exiting prison or completing supervision.

Given the limits many perceive in record clearing as a comprehensive reentry strategy, social science researchers have become interested in studying the effect of laws that aim to increase the positive information about individuals with a criminal record to counter the negative effect of the record itself.  This report is intended to support these research efforts by describing the state of the law relating to certificates of relief in the 21 states that now offer them.  A follow-up study will look at pardons. We hope to stimulate interest in a type of criminal record relief that has been neglected in recent years as background screening has become widespread.

We hope that this report will stimulate public interest in a type of relief that has been neglected in recent years as background screening has become widespread, and suggest ways to make it more widely available. Our goal is to encourage a view of certificates and expungement as complementary parts of a single structured system of serially available criminal record relief.

June 9, 2024 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

Saturday, June 8, 2024

Noticing that nitrogen gas as an execution method is not (yet) proving so popular

This lengthy new CNN article, headlined "Execution by nitrogen hypoxia doesn’t seem headed for widespread adoption as bills fall short and nitrogen producers object," highlights that other states have not yet followed Alabama's path-breaking lead in a new execution method.  Here is how the article begins:

The day after Alabama carried out the first-known US execution using nitrogen gas, its attorney general sent a clear message to death penalty states that might want to follow suit: “Alabama has done it, and now so can you.”

Indeed, in the weeks immediately following the January execution of Kenneth Smith, it appeared a handful of states were listening, introducing bills that would adopt the method known as nitrogen hypoxia or a similar one.  Officials behind each framed the legislation as an alternative method that could help resume executions where they had long been stalled.

But months later — as the circumstances of Smith’s death continue to fuel debate about nitrogen hypoxia — it’s also increasingly unclear whether more states will, in earnest, follow Alabama in implementing the method, which involves replacing the air breathed by the condemned inmate with 100% nitrogen, depriving them of oxygen.  Oklahoma and Mississippi have also legalized nitrogen hypoxia, but Alabama, which plans to execute a second inmate with nitrogen gas this fall, is the sole state to have put someone to death using it.

Only one of the recently proposed state bills authorizing such a form of execution has been signed into law: Two were stuck before committees when their state legislatures adjourned this year, and a sponsor of the third acknowledged its future is uncertain.

June 8, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0)

"DPA Discounts"

The title of this post is the title of this new paper now available via SSRN authored by Todd Haugh and Mason McCartney. Here is its abstract:

There is a longstanding debate over the propriety of corporate deferred and nonprosecution agreements, those semi-private settlements entered into between prosecutors and companies under criminal investigation.  That debate is occurring in the shadow of the growing use of these DPAs and NPAs, a trend that recent DOJ policy changes suggest will only increase.  Regardless of where one stands on the debate, all agree that the fair, consistent, and transparent awarding and application of these agreements is paramount. 

Based on an empirical analysis of more than ten years of DPAs and NPAs used in Foreign Corrupt Practices Act cases, we find that the monetary penalties imposed on companies are consistently discounted below the low end of the fine range calculated pursuant to the Organizational Sentencing Guidelines, sometimes even below the monetary benefits companies received from their wrongdoing.  Further, the culpability score calculations made pursuant to the Guidelines, which are designed to calibrate a company's ultimate penalty with its level of wrongdoing, are not statistically significant in determining penalties.  Instead, it appears a hardened norm has developed at the DOJ of giving an almost uniform 25% discount off the low end of the fine range regardless of a company's culpability.  This norm is remarkably consistent despite wide variability in corporate behavior and the likely bargaining positions of prosecutors and corporate defendants.  These findings call into question the current oversight of DPAs and NPAs and, ultimately, their use in combatting corporate crime, thereby shedding new empirical light on what has become the primary means of holding our most high-profile corporate wrongdoers accountable.

June 8, 2024 in Federal Sentencing Guidelines, Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (39)

US Sentencing Commission starts releasing latest "Quick Facts" publications

I noticed that the US Sentencing Commission has started releasing a new set of its terrific "Quick Facts" publications with updates drawing on the USSC's full fiscal year 2023 data.  Long-time readers have long heard me praise the USSC for producing these convenient and informative short data documents, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format." Here are the newesr postings by the USSC on the "Quick Facts" page:

Offender Groups

Drugs

There are any number of interesting factual nuggets in these documents that are fascinating, but I continue to be struck by how much of the federal caseload (and federal prison population) is consumed by drug cases and especially methamphetamine and various opioid. Crack cocaine and marijuana cases, which have long garnered so much attention, are now just a tiny piece of an otherwise still large federal drug war reality.

June 8, 2024 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Friday, June 7, 2024

Rounding up some capital punishment stories from the week that was

Amid a busy week with lots of travel, I have not had a chance to cover any number of notable sentencing stories making headlines at the start of June.  I am hopeful that this weekend will provide me with some time to do a broader round-up of a broad array of sentencing news and commentary.  For now, I will be content to provided abridged coverage of some capital punishment pieces catching my eye:

From the AP, "Execution date set for Missouri inmate, even as he awaits hearing on claim of actual innocence"

From CNN, "He spent months visiting death row inmates and witnessed three executions. Here’s what he’s learned"

From HuffPost, "‘Rebel Nun’ Documentary Aims To Reinvigorate Push To Abolish Death Penalty"

From the New York Times, "A Death Row Prisoner Tells of Living Through a Botched Execution"

From the Phoenix New Times, "Rachel Mitchell: I’ll execute death row prisoner if Kris Mayes won’t"

From WION, "‘Doomsday’ triple-murder case: Chad Daybell sentenced to death for murder of wife and girlfriend’s 2 children"

June 7, 2024 in Death Penalty Reforms | Permalink | Comments (1)

Thursday, June 6, 2024

"How Neuroscience Can Improve the Sentencing of Defendants with Autism Spectrum Disorder"

The title of this post is the title of this book chapter now available via SSRN authored by Colleen Berryessa and Carolina Caliman. Here is its abstract:

Defendants with Autism Spectrum Disorder (ASD) face a myriad of difficulties at every stage of the legal process-which not only can negatively affect their experiences in court but also the fairness, efficacy, and legitimacy of their outcomes at sentencing.  This chapter explores how advances in neuroscience can help positively impact the sentencing and aftercare of defendants with ASD in the United States, specifically focusing on the role of neuroscience in shaping more appropriate and prosocial legal decision-making during the sentencing proceedings of diagnosed defendants.

First, the chapter will discuss how neuroscience may aid legal decision-makers to better contextualize an ASD diagnosis and its neurodiversity during sentencing proceedings.  Then, it will explore how neuroscience can be used to cultivate better models of care and service innovations when developing and implementing sentencing accommodations for defendants with ASD.  Finally, the chapter will describe how neuroscience is being used to increase the education, awareness, and training of legal decision-makers, including judges, attorneys, and court personnel, on ASD and its forensic relevance to sentencing and other legal processes.

June 6, 2024 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (15)

US Sentencing Commission sets out broad, general request concerning proposed priorities for 2024 to 2025 amendment cycle

USSC-Seal_vFFLast Friday, the US Sentencing Commission released this interesting document, its "Federal Register Notice of Proposed 2024-2025 Priorities."  I had been waiting to get an "official" email from the sentencing commission describing the document before blogging about it, and late yesterday that email came with this heading: "A Request from Judge Carlton W. Reeves, Chair, U.S. Sentencing Commission."  Here is the text of the email, which serves to summarize the gist of the Federal Register Notice:

I’m writing to ask you for a small favor. Most summers, the Sentencing Commission announces the work we plan to prioritize over the coming year.  This summer, to mark the 40th anniversary of the Commission’s creation (and twenty years post Booker), we’re doing something different. We’re asking people – including you – to tell us what to do this year and in the years to come.

My request is this: please take five minutes of your time to tell the Commission how we can create a fairer, more just sentencing system.  Tell us how to revise the Guidelines.  Tell us what issues to study or what data to collect.  Tell us what workshops to conduct, what hearings to hold, what advisory groups to convene, or what ways the Commission can better serve you.  Or even just tell us what big picture issues you’d like us to tackle – or what technical problems you’d like us to look into.

Trust me, I know how busy daily lives are, so we’ve made it easy to give us your thoughts.

You can type a paragraph (or even a sentence or two!) into our Public Comment Submission Portal at: https://comment.ussc.gov.  If you want to write a letter, you can submit it through the Portal, too, or via snail mail to United States Sentencing Commission, One Columbus Circle, N.E., Suite 2-500, Washington, D.C. 20002-8002, Attention: Public Affairs – Priorities Comment.

It doesn’t matter how you speak to us. And it doesn’t matter how short or long your comment is.  What matters is that you speak to us.  Please encourage your colleagues to do the same.

One comment can make the difference. Remember: when you speak to the Commission … you will be heard.

Sincerely,

Carlton W. Reeves

I am very pleased that the Commission, after two years of intricate work on a range of pressing issues, is now asking for help while seemingly being prepared to take a big picture look at the full sentencing system and the Commission's own work therein. Notably, the formal Federal Registar Notice frames this big picture inquiry in terms of key statutory provision of the Sentencing Reform Act. Here is how it substantively starts:

In light of the 40th anniversary of the Sentencing Reform Act of 1984, Pub. L. 98–473, 98 Stat. 1987 (1984), the Commission intends to focus on furthering the Commission’s statutory purposes and missions as set forth in the Sentencing Reform Act, including:

(1) Establishing “sentencing policies and practices for the Federal criminal justice system that . . . assure the meeting of the purposes of sentencing”—namely, rehabilitation, deterrence, just punishment, and incapacitation. 28 U.S.C. 991(b)(1)(A).

(2) Establishing “sentencing policies and practices for the Federal criminal justice system that . . . provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities.” 28 U.S.C. 991(b)(1)(B).

(3) Establishing “sentencing policies and practices for the Federal criminal justice system that . . . reflect, to the extent practicable, advancement of knowledge of human behavior as it relates to the criminal justice process.” 28 U.S.C. 991(b)(1)(C).

(4) “[M]easuring the degree to which the sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing.” 28 U.S.C. 991(b)(2).

There is a lot more to the USSC's official notice (in pdf form here), but the message from the Commission seems pretty clear: it is prepared to, and is perhaps even eager to, start (re)considering any and all aspected of the federal sentencing system.  Kudos to the USSC for starting off its next cycle of work this way.

June 6, 2024 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)