Sentencing Law and Policy

SCOTUS limits reach of aggravated identity theft mandatory-minimum statutory add-on sentence

The Supreme Court this morning delivered yet another big win for a federal white-collar criminal defendant with 9-0 ruling limiting the reach of aggravated identity theft federal statute in Dubin v. US, No. 22-10 (S. Ct. June 8, 2023) (available here).  Justice Sotomayor authored the opinion for the Court, which starts this way:

There is no dispute that petitioner David Fox Dubin overbilled Medicaid for psychological testing.  The question is whether, in defrauding Medicaid, he also committed “[a]ggravated identity theft,” 18 U.S.C. § 1028A(a)(1), triggering a mandatory 2-year prison sentence.  The Fifth Circuit found that he did, based on a reading of the statute that covers defendants who fraudulently inflate the price of a service or good they actually provided.  On that sweeping reading, as long as a billing or payment method employs another person’s name or other identifying information, that is enough.  A lawyer who rounds up her hours from 2.9 to 3 and bills her client electronically has committed aggravated identity theft.  The same is true of a waiter who serves flank steak but charges for filet mignon using an electronic payment method.

The text and context of the statute do not support such a boundless interpretation.  Instead, § 1028A(a)(1) is violated when the defendant’s misuse of another person’s means of identification is at the crux of what makes the underlying offense criminal, rather than merely an ancillary feature of a billing method.  Here, the crux of petitioner’s overbilling was inflating the value of services actually provided, while the patient’s means of identification was an ancillary part of the Medicaid billing process.

Justice Gorsuch authored the only separate opinion, which is a notable concurring opinion starting this way:

Whoever among you is not an “aggravated identity thief,” let him cast the first stone.  The United States came to this Court with a view of 18 U.S.C. § 1028A(a)(1) that would affix that unfortunate label on almost every adult American. Every bill splitter who has overcharged a friend using a mobile-payment service like Venmo.  Every contractor who has rounded up his billed time by even a few minutes.  Every college hopeful who has overstated his involvement in the high school glee club.  All of those individuals, the United States says, engage in conduct that can invite a mandatory 2-year stint in federal prison.  The Court today rightly rejects that unserious position.  But in so holding, I worry the Court has stumbled upon a more fundamental problem with § 1028A(a)(1).  That provision is not much better than a Rorschach test. Depending on how you squint your eyes, you can stretch (or shrink) its meaning to convict (or exonerate) just about anyone.  Doubtless, creative prosecutors and receptive judges can do the same.  Truly, the statute fails to provide even rudimentary notice of what it does and does not criminalize.  We have a term for laws like that.  We call them vague.  And “[i]n our constitutional order, a vague law is no law at all.” United States v. Davis, 588 U. S. ___, ___ (2019) (slip op., at 1).

Spotlighting notable sentence reduction for prisoner sexually abused by multiple BOP guards

This new NPR piece, headlined "Prison sexual assault victims can now petition for compassionate release," highlights a recent grant of a sentence reduction under 3582(c)(1)(A) for a prisoner who was repeatedly sexually abused by federal prison guards.  Here are the particulars and some broader context:

For years, Aimee Chavira suffered sexual abuse in a Dublin, Calif., federal prison by the officers responsible for protecting her. Now, thanks to a program known as compassionate release, she is free. And her freedom could help pave a similar path for other people who experienced physical or sexual assault behind bars.

"We are very hopeful that this can lead to more women who were abused at Dublin getting out," said Erica Zunkel, Chavira's lawyer.

Chavira, 44, has been home for less than two weeks after learning her request for compassionate release had been granted by a federal judge. Those petitions allow people in prison the chance to convince a court they should be freed because of extraordinary and compelling circumstances.

Typically, those cases involve terminal illness or other dire medical conditions. In April, the U.S. Sentencing Commission, a federal body that sets advisory guidelines, voted to expand the bases for compassionate release to include sexual and physical assault by prison workers.

Chavira reported her abuse to a psychologist and a warden at the Federal Correctional Institution, Dublin. But they did nothing. The warden later was convicted of sexual abuse and lying to the FBI. Five other officials have been charged with sexually abusing women at the facility, in what became known as a so-called "Rape Club." One of them, John Bellhouse, was convicted this week on charges that include sexual abuse of an incarcerated person.

Chavira said she knows women from the Dublin prison who have been moved to other facilities, where they continue to suffer retaliation and face trauma. "This is just one prison that's coming out to the light," she said. "What's happening in all the rest of the prisons with the rest of the people that don't have any help or a voice?"

Last year, a bipartisan probe by the Senate Permanent Subcommittee on Investigations found widespread sexual abuse by officers in federal prisons with few consequences for those officers....

Zunkel, the associate director of the Federal Criminal Justice Clinic at the University of Chicago Law School, said it's important that Chavira and other survivors of assault get released as soon as possible. "The experts confirm it doesn't matter if you're moved to a different prison, it doesn't matter if they're offered the very best therapy possible, the Bureau of Prisons is a fundamentally unsafe place for a survivor of sexual violence to recover from," Zunkel said.

In Chavira's case, prosecutors did not object to her request for compassionate release....

Chavira said she's determined to speak out for all the people she met in prison who are still experiencing abuse and poor conditions behind bars. "There is no help, if you went in in one piece, you're coming back out in a million pieces, because you're beyond broken," she said. For now, she said she intends to get stronger emotionally and "show everybody, you know, I went through this, and I got out of it."

The short ruling granting compassionate release is available here and the detailed motion filed by Erica Zunkel on behalf of Aimee Chavira is available here.

New Sentencing Project report reviews "Adults 25 and Younger Sentenced to Life without Parole"

The Sentencing Project today released this new report on certain LWOP sentencing patterns titled "“Left to Die in Prison: Emerging Adults 25 and Younger Sentenced to Life without Parole.” Here are excerpts from the report's "Executive Summary" (with endnotes removed):

Beginning at age 18, U.S. laws typically require persons charged with a crime to have their case heard in criminal rather than juvenile court, where penalties are more severe.  The justification for this is that people are essentially adults by age 18, yet this conceptualization of adulthood is flawed.  The identification of full criminal accountability at age 18 ignores the important, distinct phase of human development referred to as emerging adulthood, also known as late adolescence or young adulthood.  Compelling evidence shows that most adolescents are not fully matured into adulthood until their mid-twenties.

The legal demarcation of 18 as adulthood rests on outdated notions of adolescence.  Based on the best scientific understanding of human development, ages 18 to 25 mark a unique stage of life between childhood and adulthood which is recognized within the fields of neuroscience, sociology, and psychology.  Thus, there is growing support for providing incarcerated people who were young at the time of their offense a second look at their original sentence to account for their diminished capacity.  A 2022 study found similar levels of public support for providing a second look at prison sentences for crimes committed under age 18 as for those committed under age 25.... 

Two in five people — 11,600 individuals — sentenced to LWOP between 1995 and 2017 were under 26 at the time of their sentence.  In Michigan, Pennsylvania, and California, nearly half of those sentenced to LWOP were younger than 26.  Nationally, the peak age at conviction was age 23, which is well within the period between youth and adulthood.

Moreover, two thirds (66%) of people under 26 years old sentenced to LWOP are Black compared with 51% of persons sentenced to LWOP beyond this age. As we show in this report, our analysis finds that being Black and young has produced a substantially larger share of LWOP sentences than being Black alone. This fact reinforces the growing understanding that extreme sentences disproportionately impact Black Americans.

The report’s findings support a recent sentencing trend recognizing emerging adulthood as a developmental stage; more than a dozen states have introduced or passed legislative reforms or adopted jurisprudential restrictions in recent years to protect emerging adults from extreme punishment.  These reforms utilize the latest scientific understanding of adolescence and young adulthood to recognize emerging adulthood as a necessary consideration in assigning culpability. 

In light of strong evidence showing the unique attributes of emerging adulthood, sentences that allow no review once adolescent development is concluded are especially egregious.

"Plea Bargaining Abolitionism: A History"

The title of this post is the title of this new piece authored by William Ortman now available via SSRN. Here is its abstract:

How does a tragedy on the scale of mass incarceration happen?  Scholarship has focused on the carceral appetite of politicians, criminal justice practitioners, and the public. R ightly so, but mass incarceration took more.  On paper, American law has a built-in check on carceral appetites: a labor-intensive system of criminal adjudication via trials. Yet as mass incarceration wreaked havoc in the 1980s and beyond, that system barely registered.  It had been supplanted, over the previous century, by a form of adjudication far better suited to punitive fervor.  Plea bargaining enabled mass incarceration.  If only Americans had been warned about plea bargaining before it was too late, maybe the catastrophe could have been avoided.

Except that they — we — were warned.  In the 1970s, an unlikely assortment of academics, prosecutors, judges, and even a Nixon-administration crime commission sought to rally the country to abolish plea bargaining.  While they did not speak in unison, they were united by a conviction that the system of plea bargaining that had matured in mid-century American courts was fundamentally unjust.

Plea bargaining abolitionists in the 1970s tried to tell us that something basic had gone wrong with the criminal process.  Perhaps predictably, the broader legal profession didn’t heed the warning.  When prosecutors and judges attempted to formally ban plea bargaining — as they did in Alaska, El Paso, and elsewhere — other prosecutors and judges, joined by defense lawyers, found ways to circumvent them.  And when scholars and politicians decried the injustice of plea bargaining, they were told to be more realistic.

En banc Third Circuit rules, based on Bruen, that federal felon-in-possession law is unconstitutional when applied to nonviolent, nondangerous offender

Creating a circuit split concerning the lawfulness of a frequently-applied federal gun control provision, the full en banc Third Circuit today found unconstitutional the application of federal felon-in-possession law to a person with a false statement conviction. The majority opinion in Range v. Attorney General, No. 21-2835 (3d Cir. 2023) (available here), runs less than 20 pages, but it is followed by 80+ pages of concurring and dissenting opinions.  (The vote for Range was 11-4.)  Here is how the majority opinion authored by Judge Hardiman concludes:

Our decision today is a narrow one. Bryan Range challenged the constitutionality of 18 U.S.C. § 922(g)(1) only as applied to him given his violation of 62 Pa. Stat. Ann. § 481(a).  Range remains one of “the people” protected by the Second Amendment, and his eligibility to lawfully purchase a rifle and a shotgun is protected by his right to keep and bear arms.  Because the Government has not shown that our Republic has a longstanding history and tradition of depriving people like Range of their firearms, § 922(g)(1) cannot constitutionally strip him of his Second Amendment rights.  We will reverse the judgment of the District Court and remand so the Court can enter a declaratory judgment in favor of Range, enjoin enforcement of § 922(g)(1) against him, and conduct any further proceedings consistent with this opinion.

The longest dissent was is authored by Judge Krause, and here are a few paragraphs of its introduction (with footnotes omitted):

Section 922(g)(1) of the U.S. Code, Title 18, embodies this delicate equilibrium and comports with traditional principles that have guided centuries of legislative judgments as to who can possess firearms.  As Justice Alito has observed, § 922(g) “is no minor provision.  It probably does more to combat gun violence than any other federal law.” And as a “longstanding” and widely accepted aspect of our national gun culture, the federal felon-possession ban — carefully crafted to respect the laws of the states — is the keystone of our national background check system, and has repeatedly been characterized by the Supreme Court as “presumptively lawful.”  Where, as here, the legislature has made a reasonable and considered judgment to disarm those who show disrespect for the law, it is not the place of unelected judges to substitute that judgment with their own.

Yet today’s majority brushes aside these realities and the seismic effect of its ruling.  It is telling that, although it describes itself as limited “to Range’s situation,” today’s opinion is not designated non-precedential as appropriate for a unique individual case, but has precedential status, necessarily reaching beyond the particular facts presented.  It is also telling that it tracks precisely the Fifth Circuit’s deeply disturbing opinion in United States v. Rahimi, which, finding no precise historical analogue, struck down as unconstitutional the ban on gun possession by domestic abusers.  And in the process, the majority creates a circuit split with the Eighth Circuit’s recent opinion in United States v. Jackson, which rejected the notion of “felony-by-felony litigation” and recognized that “Congress acted within the historical tradition when it enacted § 922(g)(1) and the prohibition on possession of firearms by felons.”

Though the federal government would normally seek certiorari review of this kind of ruling, I wonder if the feds might seek to urge the Supreme Court to take up a different case raising the same issue.  Bryan Range's case seems particularly sympathetic, as he was only convicted nearly three decades ago of making a false statement to obtain food stamps in violation of Pennsylvania law.  But, whatever the vehicle, the constitutionality of Section 922(g)(1) is clearly one (of a number of) post-Bruen Second Amendment issues the Supreme Court is going to have to confront.

Missouri completes execution of man who murdered two jail guards back in the year 2000

As reported in this AP piece, a "Missouri man who shot and killed two jailers nearly 23 years ago during a failed bid to help an acquaintance escape from a rural jail was executed Tuesday evening." Here is more:

Michael Tisius, 42, received a lethal injection of pentobarbital at the state prison in Bonne Terre and was pronounced dead at 6:10 p.m., authorities said.  He was convicted of the June 22, 2000, killings of Leon Egley and Jason Acton at the small Randolph County Jail....

Tisius’ lawyers had urged the U.S. Supreme Court to block the execution, alleging in appeals that a juror at a sentencing hearing was illiterate, in violation of Missouri law.  The court rejected that motion Tuesday afternoon.  The Supreme Court previously turned aside another argument — that Tisius should be spared because he was just 19 at the time of the killings.  A 2005 Supreme Court ruling bars executions of those under 18 when their crime occurred, but attorneys for Tisius had argued that even at 19, when the killings occurred, Tisius should have had his sentence commuted to life in prison without parole.

Advocates for Tisius had said he was largely neglected as a child and was homeless by his early teens.  His path to the death chamber began in 1999 when, as an 18-year-old, he was jailed on a misdemeanor charge of pawning a rented stereo system.  In June 2000, Tisius was housed on that charge at the same county jail in Huntsville with inmate Roy Vance. Tisius was about to be released, and court records show the men discussed a plan in which Tisius, once he was out, would help Vance escape.

Just after midnight on June 22, 2000, Tisius went to the jail accompanied by Vance’s girlfriend, Tracie Bulington.  They told Egley and Acton that they were there to deliver cigarettes to Vance.  The jailers didn’t know that Tisius had a pistol.  At trial, Bulington testified that she looked up and saw Tisius with the gun drawn, then watched as he shot and killed Acton.  When Egley approached, Tisius shot him, too.  Both officers were unarmed.  Tisius found keys at the dispatch area and tried to open Vance’s cell, but couldn’t. When Egley grabbed Bulington’s leg, Tisius shot him several more times.

Tisius and Bulington fled but their car broke down later that day in Kansas.  They were arrested in Wathena, Kansas, about 130 miles (210 kilometers) west of Huntsville.  Tisius confessed to the crimes.

Sid Conklin, now presiding commissioner of Randolph County, was a Missouri State Highway Patrol officer who investigated the killings in 2000. Conklin said the deaths of the two young jailers — both in their 30s — still haunt the community.  “I hope this brings closure for all citizens of Randolph County,” said Conklin, who witnessed the execution.

Another now-retired highway patrol investigator, Randy King, described the jailers as “good, everyday people trying to make a living.” “I pray for the guy’s (Tisius’) soul, but it’s been 23 years and it’s time for justice to be served,” King said.  He also witnessed the execution.

Bulington and Vance are serving life sentences on murder convictions....

The execution was the 12th in the U.S. this year, and the third in Missouri. Only Texas, with four, has executed more people than Missouri this year.

Campaign for the Fair Sentencing of Youth reporting that "1,000 individuals who were sentenced to life in prison as children are now free"

I received an email this morning from The Campaign for the Fair Sentencing of Youth (CFSY) reporting in this way on what seems like a notable resentencing milestone:

As of June 6, 2023, we’ve reached an incredible milestone: 1,000 individuals who were sentenced to life in prison as children are now FREE! Since 2009, we have been fighting alongside family members, formerly incarcerated individuals, survivors of violence, lawyers, legislators, and advocates to reach this landmark. Today, we celebrate alongside each of you and affirm once again that “No Child Is Born Bad.”

The CFSY website also provides these notable particulars on the freed group:

What do you know about these 1000 individuals who were told as children they would die in prison serving life without parole and are now free? Their recidivism rates are exceedingly low, while the time they served is exceedingly high....

RECIDIVISM RATES OF FORMER JUVENILE LIFERS ARE EXTREMELY LOW: BETWEEN 0 AND 2%.  A study in Louisiana found the recidivism rate of those who were sentenced to juvenile life without parole to be 0% while a study in Pennsylvania found it to be 1.14%. the national recidivism rate is reported to be between 40% and 68%.

THE AVERAGE NUMBER OF YEARS THESE 1000 FORMER JUVENILE LIFERS SERVED IS EXTREMELY HIGH: 30 YEARS. The median time served for homicide in the U.S. is 17 years according to statistics from the federal bureau of justice – up from less than six years before the year 2000.

THE AVERAGE AGE UPON RELEASE: 47 YEARS OLD.  While teenagers are more prone to break the law, most who commit serious crimes mature out of a tendency to break laws around 25 years old, according to criminologists, biological brain researchers, and decades of experience.

AMERICANS OVERWHELMINGLY BELIEVE THESE 1000 HAVE A CAPACITY FOR POSITIVE CHANGE: 70%. Over two-thirds of Americans agree that children who receive lengthy sentences should have their sentences reviewed by a judge or parole board after no more than 15 years, with the opportunity for release. This majority holds across race, age, gender, political affiliation, and education.

THE LONGEST SERVING AND OLDEST TO BE FREED: JOE LIGON. Locked up at age 15, Joe Ligon became the nation’s longest-serving juvenile ‘lifer.’ at 83, he became the oldest to be freed.

A long-form account of one small part of modern stories about compassionate release for dying federal prisoners

Anyone interested at all in the topic of compassionate release should be sure to make time to read this extended account of one federal prisoner's quest to help fellow prisoners secure end-of-life sentence reductions. This piece by Anna Altman for The Atavist Magazine is fully titled "The Quality of Mercy: Gary Settle has helped dozens of federal prisoners get compassionate release. Will it ever be his turn to go home?". Here is one small snippet of very long piece that is worth the time to read in full:

Compassionate release is grounded in the idea that changes to a person’s health may weaken the justification for their incarceration.  What reason is there for imprisoning someone with Alzheimer’s when he no longer understands that he is being punished?  When someone with late-stage liver disease can’t get out of bed and is no longer a threat to society?  When “rehabilitation” is no longer feasible because a person has advanced cancer?  “We’re not doing any social good, if we were in the first place, in keeping them locked up,” [FAMM's Mary] Price said.  “And we can do a great deal of good in terms of helping people repair relationships and comfort each other and say goodbye.”

There is also a financial calculus that works in the BOP’s favor, one noted prominently in a 2013 DOJ report on compassionate release: It’s almost always cheaper to release sick people than to keep them locked up until they die.  One study found that the annual cost of caring for just 21 seriously ill prisoners in California was almost $2 million per person, while the median per capita cost of nursing home care in the state was $73,000 per year.

After a judge allowed [terminal cancer patient R.] Smith to go home, Settle noticed a shift at Butner.  He later wrote an email to FAMM, trying to put into words what he was witnessing.  “In this place of death and dying, among incarcerated men who are holding on to life with nothing but more cells, more keys, more misery in their future, your efforts are having real, tangible results.  Your efforts are giving hope,” he wrote.  “You are giving life back to people, and you are giving them the most precious gift of all, time. Time to heal old wounds, to take a last breath of freedom and to leave this world with peace and dignity.”

FAMM worked closely with Settle through the summer and fall of 2019 to help people at Butner.  “We didn’t appoint him,” Price said. “He appointed himself.”  Settle made copies of FAMM’s newsletter and distributed them to his neighbors.  He kept an eye out for people whose health was worsening and approached those he thought might qualify for compassionate release.  He told them what he knew about the First Step Act, which he had studied, and about the Compassionate Release Clearinghouse.  He spent six to eight hours a day requesting medical records, addressing envelopes, and updating his contacts on the outside about various cases.  Settle read medical records, cross-referencing terms with a diagnostic manual and a medical encyclopedia he’d ordered, so he could send the most pertinent information about sick prisoners to their lawyers.  Before long his cell was covered with piles of paper.

Settle also relayed information from incarcerated individuals to their family members.  He helped people who were too sick to make it to a computer, those who had been transferred off-site for care, and others who had never learned to read or write.  Sometimes he wrote compassionate release requests himself, parroting the language he had seen in other applications.  The ones that went to the BOP were all but certain to be rejected or ignored, but that was part of the process: For a prisoner to file a motion directly with a judge, they first had to “exhaust administrative remedies,” in legal parlance.

Word got around Butner about what Settle was doing.  He would leave his cell after a nap to find four or five guys gathered outside, some of them in wheelchairs with paperwork in their laps.  He was willing to assist just about anyone — he said he only refused people convicted of sex crimes.  “Gary is able to form relationships with all kinds of people,” said Juliana Andonian, an attorney who used to work at FAMM.  “He didn’t want to make himself the center of the story.  That was really notable, the lack of ego.”

It isn’t uncommon for people in prison to help one another with legal matters.  Jailhouse lawyers — some with legal training, some without—review statutes in a prison’s law library, file paperwork, and perform other tasks for fellow prisoners, often for a fee or some other form of compensation.  “Someone less sincere could make a lot of money or do a lot of harm,” Andonian said.  Settle refused payment, even to cover the cost of emails he sent and phone calls he made.  The mother of a man Settle helped go home remembered sending him a thank-you note.  “That’s about all he let me send him,” she said.

One day a thought dawned on Price.  “He is doing this job that the Bureau of Prisons should be doing,” she said.  “They should be moving heaven and earth to be sure that people are connected to family and loved ones when they’re near the end of their lives.”

"Left Behind, Again: Intellectual Disability and the Resentencing Movement"

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

This Article examines the exclusion of individuals with intellectual disability from much of the current resentencing movement.  Across the country, incarcerated individuals are filing motions in federal and state courts seeking release as part of a nationwide movement toward decarceration.  These motions are possible because new legislation and case law have been moving away from the “law and order” policies that permeated the criminal legal system for the last several decades.  Those eligible for release include individuals sentenced to long terms of imprisonment for non-violent drug offenses or offenses they committed as children.  In addition, elderly and very sick incarcerated individuals can seek review of their sentences in many jurisdictions.

Although the current resentencing movement has its roots in Atkins v. Virginia — in which the Supreme Court held that execution of individuals with intellectual disability violated the Eighth Amendment — individuals with intellectual disability have not been an explicit part of this movement.  The Article uniquely considers the role of practical concerns that impede incorporation of individuals with intellectual disability into the resentencing movement, such as difficulties identifying individuals with intellectual disability in the criminal legal system.  This Article also examines the Court’s opinions both on proportionality in sentencing and individuals with intellectual disability to argue that the Court’s delay in defining “intellectual disability,” history of discriminatory opinions, and failure to extend Atkins beyond the death penalty context have contributed to individuals with intellectual disability’s exclusion from resentencing.

Finally, this Article proposes both litigation and legislative strategies to more explicitly include individuals with intellectual disability in resentencing and early release efforts.  Relatively small changes can have a substantial impact on individuals with intellectual disability who are incarcerated and on the resentencing and criminal legal system reform movements.

Top-side SCOTUS briefs in Pulsifer address FIRST STEP Act's expansion of statutory safety valve

Though we still await opinions in a number of criminal justice cases this SCOTUS Term (which all should be decided in the next few weeks, some details here), I am already excited for the fascinating little sentencing case the Justices already have on tap for next Term.  As flagged here, the Justices in late February granted certiorari in Pulsifer v. United States.  Stated in a pithy way, the issue in Pulsifer is whether the word "and" as used in the FRIST STEP Act's expansion of the mandatory minimum statutory safety valve actually means "and" or might instead mean "or." 

As I have noted before, federal criminal justice practitioners and sentencing fans should be following Pulsifer closely because its resolution will impact how thousands of drug defendants are sentenced in federal courts every year.  And statutory construction gurus should also be interested in how Pulsifer addresses statutory issues related to textualism, plain meaning and the rule of lenity.  

Though SCOTUS oral argument in Pulsifer will not be scheduled until October of November, the first set of briefs were filed in the last few weeks.  Specifically, SCOTUSblog has assembled on this Pulsifer case page the merits brief filed by Mark R. Pulsifer as well as four distinct amici briefs (three in support of Pulsifer and one in support of neither party).  The briefs all make for interesting reads and reinforce my sense that Pulsifer will be a fun one at oral argument and beyond.

Start-of-summer round up of a wide variety of criminal justice stories and commentary

Though it is not yet officially summer according to the calendar, it certainly feels like summer to me for lots of reasons.  Indeed, I already feel behind on summer projects and summer reading.  But, in an effort to try to avoid feeling behind on summer blogging, here is a very big round-up of a number of criminal justice stories and commentary that caught my eye in recent days:

From the AP, "Oregon, awash in treatment funds after decriminalizing drugs, now must follow the money"

From the AP, "Kentucky governor touts big strides in reducing recidivism rate"

From Bolts, "Sentencing Reforms for Domestic Abuse Survivors Derail in Oklahoma"

From Cato at Liberty, "More Evidence That Opioid Policymakers Keep Aiming at the Wrong Target"

From Crux, "Florida bishops appeal to DeSantis to commute death sentence"

From the Des Moines Register, "Kim Kardashian gave this Iowa mom a surprise on Mother's Day — and a chance at a new life"

From the FAMM Foundation, "The Crisis of Conditions in America’s Jails and Prisons"

From The Hill, "Black-led organizations are leading charge in reform of prisons and the death penalty"

From the Missouri Independent, "Missouri bill ends crack penalty disparity, raises age for trying youths as adults"

From NBC News, "Doctors call for changes to laws that criminalize drug use during pregnancy"

From the Omaha World-Herald, "Nebraska lawmakers pass multi-year effort on criminal justice reform"

From PennLive, "Mercy and compassion are antidotes to fear and hatred"

From Politico, "Could Hunter Biden be the next poster child for Second Amendment rights?"

From Reason, "Minnesota Caps Length of Probation Sentences"

From the Star-Tribune, "With historic settlement, Minnesota to move transgender woman from men's prison to women's facility"

From the VT Digger, "New laws make changes at the intersection of criminal justice and health care"

Eighth Circuit panel rejects constitutional challenge to federal felon-in-possession prohibition

An Eighth Circuit panel today issued a significant ruling rejecting a federal criminal defendant's claim that "he had a constitutional right under the Second Amendment to possess a firearm as a convicted felon."  The ruling in US v. Jackson, No. 22-2870 (8th Cir. June 2, 2023) (available here), should be read in full by anyone following post-Bruen jurisprudence closely.  Here are some excepts from the opinion: 

ackson also appeals the district court’s denial of his motion to dismiss the indictment.  He argues that § 922(g)(1) is unconstitutional as applied to him, because his drug offenses were “non-violent” and do not show that he is more dangerous than the typical law-abiding citizen.

We conclude that the district court was correct that § 922(g)(1) is not unconstitutional as applied to Jackson based on his particular felony convictions.  The Supreme Court has said that nothing in District of Columbia v. Heller, 554 U.S. 570 (2008), which recognized an individual right to keep and bear arms, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” Id. at 626; see McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (plurality opinion).  The decision in Bruen, which reaffirmed that the right is “subject to certain reasonable, well-defined restrictions,” 142 S. Ct. at 2156, did not disturb those statements or cast doubt on the prohibitions. See id. at 2157 (Alito, J., concurring); id. at 2162 (Kavanaugh, J., concurring, joined by Roberts, C.J.); id. at 2189 (Breyer, J., dissenting, joined by Sotomayor and Kagan, JJ.).  Given these assurances by the Supreme Court, and the history that supports them, we conclude that there is no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1).

History shows that the right to keep and bear arms was subject to restrictions that included prohibitions on possession by certain groups of people.  There appear to be two schools of thought on the basis for these regulations.  A panel of the Third Circuit recently surveyed the history in light of Bruen and concluded that legislatures have longstanding authority and discretion to disarm citizens who are not “lawabiding” — i.e., those who are “unwilling to obey the government and its laws, whether or not they had demonstrated a propensity for violence.” Range v. Att’y Gen., 53 F.4th 262, 269 (3d Cir. 2022) (per curiam), vacated, reh’g en banc granted, 56 F.4th 992 (3d Cir. 2023).  Jackson contends that a legislature’s traditional authority is narrower and limited to prohibiting possession of firearms by those who are deemed more dangerous than a typical law-abiding citizen.  While the better interpretation of the history may be debatable, we conclude that either reading supports the constitutionality of § 922(g)(1) as applied to Jackson and other convicted felons, because the law “is consistent with the Nation’s historical tradition of firearm regulation.” Bruen, 142 S. Ct. at 2130....

In sum, we conclude that legislatures traditionally employed status-based restrictions to disqualify categories of persons from possessing firearms.  Whether those actions are best characterized as restrictions on persons who deviated from legal norms or persons who presented an unacceptable risk of dangerousness, Congress acted within the historical tradition when it enacted § 922(g)(1) and the prohibition on possession of firearms by felons.  Consistent with the Supreme Court’s assurances that recent decisions on the Second Amendment cast no doubt on the constitutionality of laws prohibiting the possession of firearms by felons, we conclude that the statute is constitutional as applied to Jackson.  The district court properly denied the motion to dismiss the indictment.

US Sentencing Commission releases a few updated "Quick Facts" and latest "compassionate release" data

The US Sentencing Commission has recently released some new sentencing data reports.  Long-time readers have long heard me praise the USSC for producing insightful little data documents in the form of its "Quick Facts" publications (which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format").  The USSC recent posted these four new entries:

• NEW  Offenders in the Federal Bureau of Prisons (May 2023)
• NEW  Drug Trafficking (May 2023)
• NEW  Fentanyl Trafficking (May 2023)
• NEW  Fentanyl Analogue Trafficking (May 2023)

There are so many notable and interesting little data items in these little documents, and I hope to find time to mine a few data notes in the days ahead.  In addition, the USSC's website promises "more updated Quick Facts coming soon."

In addition, the USSC also recently published this updated "Compassionate Release Data Report." This report, which has information covering from October 2019 through March 2023, includes new data on sentence reduction motions under section 3582(c)(1)(A) filed with the courts and decided during the first two quarters of fiscal year 2023. Not surprisingly, this data report shows continued month-over-month declines in the number of sentence reduction motions filed and granted since the heights of the COVID pandemic. And yet, the USSC data show that there are still more of these motions being filed and being granted in recent times than was being granted before the pandemic.

"Fighting Crime Requires More Police and Less Prosecution"

The title of this post is the headline of this notable new Bloomberg opinion piece by Justin Fox than is built around an interview with Jennifer Doleac (WaPo reprint here).  Here is the set up to the Q&A in the article:

The nationwide jump in shootings and homicides early in the pandemic and the rise in other crimes that followed in some places have made crime a hot topic again in the US.  It has been a prominent one for academic research for a while, with economists in particular flocking to the field as a testing ground for research strategies that aim to sift causes from data. To get a sense of how recent findings fit with the national discussion on crime, I talked to Jennifer Doleac, an economist at Texas A&M University who not only studies crime but hosts a podcast on new research, Probable Causation, and has organized the Criminal Justice Expert Panel, which sums up expert opinion on crime questions.  This summer, Doleac, who has also written a few columns for Bloomberg Opinion, will become executive vice president of criminal justice at Arnold Ventures, a leading funder of crime research.  Following is a much-abridged transcript of our conversation and a list of research papers referred to in it.

I highly recommend the full piece, but here are snippets of likely interest to sentencing fans:

JD: [Research shows] first-time offenders are sort of at a fork in the road.  We can either hope it’s enough of a wake-up call that they’ve been arrested and had to come into court, and they’ll change course on their own, or we can pull them into the system.  I’ve become a big proponent of erring toward leniency in those sorts of situations.

There’s been other work to suggest similar things with nonviolent felony defendants. There’s a whole bunch of work on pretrial detention and the fact that locking people up pretrial has a really detrimental, causal effect on their future trajectories.  They’re more likely to plead guilty in that initial case but also more likely to re-offend in the future....

The main thing I try to point out to policymakers is we don’t have to fully understand why we are here to come up with ideas of what to do about it.  We can have ideas about what to do about violent crime that don’t require us solving this problem that we might never solve.

JF:  What are some top candidates?

JD: Putting more police on the streets reduces homicide, reduces violent crime.  There’s plenty of research on that. There are also plenty of discussions now about the potential social costs of over-policing, so it’s reasonable to have conversations about whether that is the route you want to go.  Also, it’s really hard to recruit police right now.

We know that increasing the probability of getting caught for crimes has a big deterrent effect in a way that potentially locking people up for 20 years on the back end does not.  No one is looking that far ahead.  Putting cameras everywhere, adding more people to DNA databases will increase the probability that you get caught if you offend.  We have lots of good evidence that would deter crime....

Leniency toward first-time offenders in the long run is probably a good investment.  Another thing is increasing access to mental health care.  There’s this amazing paper using data from South Carolina showing that when we kick kids off Medicaid at age 19, when it becomes much harder to stay on Medicaid, you just see all the kids get kicked off and then in the other graph you see everyone immediately locked up.  It’s these kids who were using Medicaid to get mental health treatment, they’re the ones that are now at very high risk of being locked up.

Split state appeals court finds "no evidence" supporting California Gov's rejection of parole for "Manson family" member

As reported in this AP piece, "California appeals court said Tuesday that Leslie Van Houten, who participated in two killings at the direction of cult leader Charles Manson in 1969, should be let out of prison on parole." Here is more about a notable high-profile ruling:

The appellate court's ruling reverses an earlier decision by Gov. Gavin Newsom to reject parole for Van Houten in 2020. She has been recommended for parole five times since 2016. All of those recommendations were rejected by either Newsom or former California Gov. Jerry Brown, with the latest such rejection coming in March of 2022.

California Attorney General Rob Bonta could ask the California Supreme Court to stop her release. Neither his office nor Newsom's immediately responded to requests for comment on whether they would do so.

Van Houten, now in her 70s, is serving a life sentence for helping Manson and other followers kill Leno LaBianca, a grocer in Los Angeles, and his wife Rosemary.  Van Houten was 19 at the time.  Newsom has said that Van Houten still poses a danger to society. In rejecting her parole, he said she offered an inconsistent and inadequate explanation for her involvement with Manson at the time of the killings.

The Second District Court of Appeal in Los Angeles ruled 2-1 to reverse Newsom's decision, writing there is "no evidence to support the Governor's conclusions" about Van Houten's fitness for parole.  The judges took issue with Newsom's claim that Van Houten did not adequately explain how she fell under Manson's influence.  At her parole hearings, she discussed at length how her parents' divorce, her drug and alcohol abuse, and a forced illegal abortion led her down a path that left her vulnerable to him.  They also argued against Newsom's suggestion that her past violent acts were a cause for future concern were she to be released.

The full 67-page opinion from the Second District Court of appeals can be found at this link. Here is part of the start of the opinion from the majority:

We review the Governor’s decision under the highly deferential “some evidence” standard, in which even a modicum of evidence is sufficient to uphold the reversal. Even so, we hold on this record, there is no evidence to support the Governor’s conclusions.

Van Houten provided extensive explanation as to the causative factors leading to her involvement with Manson and commission of the murders, and the record does not support a conclusion that there are hidden factors for which Van Houten has failed to account.  The Governor’s refusal to accept Van Houten’s explanation amounts to unsupported intuition.  The Governor’s finding of inconsistencies between Van Houten’s statements now and at the time of the murders fails to account for the decades of therapy, self-help programming, and reflection Van Houten has undergone in the past 50 years.  The historical factors identified in the criminal risk assessment are the sort of immutable circumstances our Supreme Court has held cannot support a finding of current dangerousness when there is extensive evidence of rehabilitation and other strong indicators of parole suitability, all of which Van Houten has demonstrated.

"Examining Remorse in Attributions of Focal Concerns During Sentencing: A Study of Probation Officers"

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

This research, using interviews with probation officers in the United States (N = 151) and a constant comparative method for analysis, draws from the focal concerns framework to qualitatively model a process by which probation officers use a defendant’s remorse to attribute focal concerns in order to guide their sentencing recommendations in pre-sentencing reports.  The model suggests that officers use expressions of remorse to make attributions about mitigated criminal intention (blameworthiness and notions of responsibility), reduced dangerousness and a high potential for reform (community protection), and organization-level effects for increasing caseload efficiency and using correctional resources (practical effects of sentencing).  Then, officers appear to use attributions from two remorse-guided focal concerns (blameworthiness and community protection) to directly advise their recommendations for more lenient sentencing outcomes.  Finally, as probation officers also described feeling sincerely responsible for providing critical information to the court about a defendant’s background and remorse, contributions and implications of this model for criminal sentencing are discussed.

New comments from Justice Breyer on punishment, sentencing, prisons, the death penalty and more

The Marshall Project has just released this notable and lengthy Q&A with retired SCOTUS Justice Stephen Breyer, which covers a number of topic that should be of interest to sentencing fans.  For full context and coverage, everyone should check out the full piece.  Here are just a few snippets that especially caught my eye:

Once, years ago, I asked Norm Carlson, who was a very distinguished and really well-respected head of the Bureau of Prisons.  We worked on the original [Sentencing Commission] guidelines.  We were talking about recidivism.  And I said, “Well, Norman, you’ve had years of experience.  You're very, very respected. If it were up to you, what would you do to reduce recidivism rates?”  And he said, as I recall, “To be honest, I don't know.”

And so people have all kinds of ideas, and it's worth trying different ones.  But it's hard to do.  It's hard — very, very hard — to do. The [federal sentencing] guidelines were an effort — and still are an effort — to have fairer sentences, to allow the judges to understand the sentence they give will be the sentence that’s served, and moreover, [to] try to prevent wide discrepancies for the same crime, same kind of criminal across the country in different places.  So how well has that succeeded?  Like most things in the criminal law, up to a point. And I think with experience over time, perhaps it will be better....

[The death penalty] is so unfairly administered.  There's neither rhyme nor reason.  The whole point of this criminal justice system is fairness. Is justice.  That's why it's called “criminal justice.”  And that is not an oxymoron, at least in theory.  So when I see that time after time, after time — I'm not saying “You're all innocent.”  But there are a couple of cases where I really wonder.

I thought, “What can I do?” It's not a big deal for the world that I would go out and announce I'm against the death penalty.  I want to do something, if I'm going to do this, that really explains what I've seen.  And that's what I tried to do in Glossip.  And it tries to explain to other people, who can explain it to state legislatures.  And all it is, is what I've seen over a couple of decades.  And by the way, it's going to get awful expensive.  Why reconsider it?  Because you can't have both: a system that is basically fair, a system that works honestly, a system that tries to treat people equally, and also have a death penalty, as I've seen it over 20 years.

"Debt Sentence: How Fines and Fees Hurt Working Families"

The title of this post is the title of this new report from the the Wilson Center for Science and Justice and the Fines and Fees Justice Center. Here is the report's executive summary:

Food, healthcare, and shelter are essential for basic survival.  Beyond mere survival, we all have other fundamental needs, such as employment, access to transportation, or education.  No one would choose to forgo any of these necessities, unless there was a greater danger threatening their well-being.  For millions of families across the United States, court fines and fees threaten these basic building blocks of survival and stability.

Across the United States, courts impose fines as a punishment for minor traffic infractions, municipal code violations, misdemeanors, and felonies.  State and local governments then tax people with fees, surcharges, and other costs used to fund the justice system and other government services.  The entire fee system is designed for one purpose: raising revenue for governments.

We know the impact of court fines and fees is not just limited to those families living in or close to poverty; it is felt by working families across economic, racial, and political demographic groups. Court-related debt can often be in the hundreds — if not thousands or even tens of thousands — of dollars, which makes paying it off a struggle for many.  The Federal Reserve Board found that nearly one in four adults in the United States were just one unexpected $400 bill away from severe financial hardship (U.S. Fed. Reserve, 2022).  A report by the lending industry also found that in 2022 “[t]he share of those earning less than $50,000 who live paycheck to paycheck rose to 82%” (PYMNTS.com & Lending Club, 2022).

Despite the breadth of data showing how much U.S. families are struggling financially, there has been a lack of consistent and reliable data on the impact of monetary sanctions on those same families.  This study is the first to present a comprehensive, national overview of how court-imposed fines and fees are affecting people across the country.  Using data from a nationally representative survey, we examine the impacts of court-imposed debt on peoples’ daily lives.

Our findings reveal a disturbing trend unfolding among working families impacted by fines and fees: money needed for necessities like food, housing, and healthcare is often being redirected to pay off court debt.  Advocates for fines and fees reform have collected thousands of stories of families sacrificing basic necessities for fear of being jailed and arrested on account of outstanding court debt.  But for the first time, with this survey, we have national data documenting the extent to which fines and fees are destabilizing families and jeopardizing their ability to access the building blocks that support survival, stability, and a chance at success.

Is it weird and worrisome or understandable and useful to have so much reporting about Elizabeth Holmes reporting to prison?

I was instinctively disinclined to blog about the news that former Theranos CEO Elizabeth Holmes was reporting today to federal prison.  But all my newsfeeds (which, admittedly, focus on criminal justice news) are ablaze with coverage.  Here are just a few of the new  pieces I have seen:

From the AP, "What's to know about the Texas prison where Elizabeth Holmes is starting her 11-year sentence?"

From CNN, "What Elizabeth Holmes’ life in prison could look like"

From Deadline, "Amanda Seyfried Says She 'Feels' For Children Of Jail-Bound Elizabeth Holmes"

From NPR, "Elizabeth Holmes has started her 11-year prison sentence. Here's what to know"

From the New York Times, "Elizabeth Holmes Reports to Prison to Begin More Than 11-Year Sentence"

From the Washington Post, "Elizabeth Holmes, disgraced Theranos founder, reports to prison"

As the title of this post suggests, I am genuinely unsure what to make of all the media coverage.  Because I found various documentaries and docu-dramas about Holmes and Theranos quite interesting, I can understand why there is so much media attention.  But I would sincerely be interested in various perspectives on whether all this media attention is sound or silly.

"Restorative Justice as a Democratic Practice"

The title of this post is the title of this new article recently posted to SSRN authored by Daniel McConkie.  Here is its abstract:

Our criminal justice system, to be truly democratic, should be more responsive to those most affected by it, and this calls for significant participation from citizens.  Unfortunately, the state-centered, professionalized system sidelines citizens at every stage, failing to give them voice and power.  Instead, the system should be consistent with criminal justice citizenship, which refers to the rights and privileges of ordinary people to participate directly in certain aspects of the criminal justice system and to deliberate in some of its workings.  That form of citizenship is essential to democracy, or rule by the people.

Restorative justice, especially where it is centered in community courts, is an ideal reform to strengthen criminal justice citizenship, and therefore democracy itself.  Restorative justice seeks to address and repair crime’s harms through a deliberative process that fosters mutual understanding and acceptance of responsibility; involves the stakeholders of crime directly in the process; posits a smaller role for the state; and promotes the rehabilitation and reintegration of wrongdoers into civil society.  Restorative justice strengthens democracy by fostering each of the three key aspects of criminal justice citizenship.  First, restorative justice can provide many opportunities for lay participation and collective civic action to address not only individual crimes but also broader issues in a community. Second, restorative justice processes foster deliberation.  They give voice to the key stakeholders and encourage dialogue, understanding, collaboration and creativity in repairing harms.  Third, restorative justice strengthens membership, which refers to citizens’ belonging to a community as civic equals.  It does so by inviting key stakeholders, broadly defined, to play a role in seeking to repair the harms of crime.  This promotes a shared commitment to the social order and accountability to others.

In order to realize the benefits of restorative justice as a democratic practice, reformers should continue to promote grassroots community court experiments that involve as many stakeholders as possible.  These experiments can help to reduce the size of the carceral state.