Sentencing Law and Policy

Furman at 50: DPIC provides a census of nearly 10,000 death sentences

As noted in this recent post, the US Supreme Court's remarkable death penalty opinion in Furman v. Georgia, 408 U.S. 238 (1972), is now a half-century old, which provides me with an excuse to do a series of "Furman at 50" posts.  Helpfully, I am not the only one celebrating this milestone, and the Death Penalty Information Center has created a remarkable "Death Penalty Census."  As described here, this "census is the most comprehensive database of death sentences ever assembled, containing more than 9,700 death sentences." Here is more:

In the census, DPIC has attempted to identify every death sentence handed down in the U.S. from the day Furman was decided through January 1, 2021 and track the status of each sentence. The data provide powerful evidence that the nation’s use of capital punishment continues to be arbitrary, discriminatory, and rife with error....

The database contains the name, race, and gender of each defendant sentenced to death; the state and county (or federal district or military branch) of prosecution; the year of sentencing; the outcome of the particular sentence; and the final outcome or current status of the case.

Here are just a few of many "key findings" from DPIC’s analysis of more than 9,700 death sentences that were sent to me via email:

• Fewer than 1 in 6 death sentences result in an execution.
• A death sentence is 3 times more likely to be reversed as a result of a court decision than it is to result in an execution.
• At least 189 people who were wrongfully convicted and sentenced to death have been exonerated since 1973. That is one person exonerated for every 8.2 people who are executed. (189 exonerations/1547 executions based on data updated through June 29, 2022.)
• More than 530 capital convictions and/or death sentences have been overturned because of, or resulted in exonerations involving, prosecutorial misconduct. That is nearly 5.5% of all death sentences imposed in the U.S. in the past 50 years.
• Fewer than 2.4% of all counties in the U.S. (just 75 counties) account for half of all death sentences imposed in state courts in the past 50 years.
• It is 5.9 times more likely that an execution carried out in the U.S. over the past 50 years involved one or more white victims (1207 cases) than that it involved only Black victims (206 cases). 78.1% of executions in the U.S. in the past 50 years were in cases involving white victims. 13.3% were in cases with only Black victims. 6.5% were in cases with only Latinx victims.
• Defendants of color constitute 52.8% of those sentenced to death over the past 50 years. Yet they make up 64.2% of death-row exonerees and 83.1% of all death-row prisoners later found to be ineligible for the death penalty because of intellectual disability.
• Death sentences have declined in the United States by approximately 90% after peaking at more than 300 per year for three consecutive years in the mid 1990s, including a 70% decline over the decade preceding the pandemic. There have been fewer than 50 new death sentences imposed each year since 2015.
• Executions have declined in the United States by approximately 75% after peaking at 98 in 1999, to an average of 23.6 in the five years before the pandemic. There have been fewer than 30 executions in the U.S. every year since 2015.

Related prior post:

• Furman at 50: so much and so little

"Crushing the Soul of Federal Public Defenders: The Plea Bargaining Machine’s Operation and What to Do About It"

The title of this post is the title of this notable new article recently posted to SSRN and authored by Walter Gonçalves.  Here is its abstract:

Existing scholarship on the vanishing federal trial does not explain how assistant federal public defenders (AFPDs) have been affected by the plea-bargaining machine.  Without an understanding of the repercussions to line attorneys, heads of federal public defender offices (FPDOs) cannot take proactive measures.  The result is low morale among staff, difficulty training litigation skills, and lower quality representation.  This state of affairs exacerbates non-trial resolutions as defenders know only how to push pleas.

FPDOs must train AFPDs to better screen cases for trial and improve courtroom litigation.  They must also focus on how the plea-bargaining machine has affected racial minorities as seen in charging and sentencing disparities.  The historical oppression of African Americans, Latinxs, and American Indians made it easier to justify laws that ignited plea-bargaining hegemony: sentencing guidelines, mandatory minimums, and fast-track programs.

David Patton, Executive Director for the Federal Defenders of New York, authored an influential essay published in the Yale Law Journal, “Federal Public Defense in an Age of Inquisition.”  He compared federal practice in 2012, when he wrote it, to the time of Gideon v Wainwright.  Patton concludes that today’s criminal defendant is more likely to be of color, in custody, face more prison time, and less likely to go to trial.  While relevant a decade later, the analysis does not develop problems of race, nor realistic improvements.

The better theoretical lens considers race and supplies solutions through training.  This Article shows how sentencing guidelines, mandatory minimums, and fast-track programs operate in AFPD work, highlights problems for defendants of color, and proposes strategies FPDOs can apply to blunt the impact of the decreasing trial rate.

Longest prison sentence yet in Varisity Blues case, 30 months, given to Georgetown tennis coach

It has now been more than three years since I reported in this post about the first pleas in the high-profile college fraud Varsity Blues case detailed in this press release from the US Attorney's Office for the District of Massachusetts, headlined "14 Defendants in College Admissions Scandal to Plead Guilty."  I covered a number of the early and celebrity sentencings closely, but there have been too many cases for me to keep track of them all.  Helpfully, DOJ has assembled here all the cases charged and sentenced in the Varsity Blues investigation, and today comes this news of the longest prison term imposed on the roughly four dozen defendants sentenced in this high-profile scandal:

Gordon "Gordie" Ernst, a Rhode Island tennis legend, was sentenced Friday to 30 months in prison — the longest sentence yet for a defendant in the "Operation Varsity Blues" case.

Ernst, 55, previously pleaded guilty to multiple bribery charges after being swept up in the federal investigation into dubious college admission schemes.

Prosecutors for the U.S. Attorney's Office in Massachusetts had argued that Ernst warranted a significantly harsher sentence than others charged in the case, because of his "raw greed" and the "breathtaking scale" of his offenses.

Ernst, in his appeal for leniency, portrayed himself as the product of a difficult upbringing in Cranston, in a family that sometimes struggled to make ends meet but seemed from the outside to be the pinnacle of athletic success.  He alleged that he was routinely beaten by his father, Richard “Dick” Ernst, a legendary coach who died in 2016.

According to prosecutors, Ernst accepted nearly $3.5 million in bribes while working as tennis coach at Georgetown University, in exchange for identifying wealthy high-school students who would not have otherwise qualified for the team as promising tennis recruits.  He collected at least $2 million more than any other coach or administrator charged in Operation Varsity Blues, according to the government's sentencing memo....

Ernst said that since his arrest, he has worked part-time at Hertz cleaning cars — a significant departure from the days when he was brought into the White House to give tennis lessons to the Obama family.  He still coaches tennis on a part-time basis, he said, and volunteered at COVID vaccination sites in Cape Cod.

Federal prosecutors had requested a sentence of four years in prison and two years of supervised release, plus the forfeiture of more than $3.4 million in proceeds.  They noted that unlike parents charged in the scheme, Ernst "cannot claim to have acted out of a desire to help his own children gain admission to college."...

Ernst's attorneys argued that their client should not receive more than one year and a day in prison, given the much lighter sentences given to other defendants, and should not be ordered to pay restitution.  In their sentencing memo, Ernst's legal team described the coach as "a kid from Cranston, Rhode Island whose family at times depended on public assistance," and "flew too close to the sun" when he found himself surrounded by power and wealth.

A few of many prior posts on other defendants in college admissions scandal:

• Mapping out next possible celebrity sentencings in wake of indictment in college admissions scandal 
• Big batch of federal plea deals (with relatively low sentencing ranges) in college admissions scandal
• Federal district judge rejects feds request for significant prison term in first sentencing of college bribery scandal
• Feds recommending incarceration terms from 1 to 15 months for parents involved college bribery scandal 
• Noticing the interesting (but perhaps not too consequential) guidelines "loss" issue lurking in the college bribery cases
• Napa Valley winemaker gets five months of imprisonment, the longest sentence so far in college admissions scandal
• Catching up with another round of sentencings in "Operation Varsity Blues"
• Reviewing the sentencing dynamics as more parents get (minimal) prison time in "Operation Varsity Blues" college admissions scandal 
• Longest prison sentence (six months) imposed in college admission scandal on big-spending dad 
• Nine-month federal prison term (the longest yet) given to former CEO who paid nearly $1 million to benefit four kids in college admission scandal 
• Felicity Huffman sentenced to 14 days in college bribery scandal 
• Via video, Lori Loughlin and her husband get agreed fixed short prison sentences in college admission scandal 
• With two defendants now convicted after trial, how steep might the "trial penalty" be in the Varsity Blues cases? 
• Trial penalties lead to longest (but still not so long) sentences for two Varsity Blues defendants 

Two different criminal justice reforms now effective in two southern states

The start of July marks the official start for two notable and notably different criminal justice reforms in Florida and Tennessee. Here are parts of press accounts:

"Florida criminal justice reform laws go into effect Friday"

Florida’s new law making reforms to the state’s criminal justice system is set to go into effect on Friday. Senate Bill 752, signed into law by Gov. Ron DeSantis (R) earlier this month, will allow Floridians on probation to receive new education and workforce credits that will shorten their probation terms and help them gain a GED or other degree or vocational certification and maintain full-time employment.

Individuals under this law can earn at least 30 days off their supervision terms for each six-month period in which they work for at least an average of 30 hours per week. It also gives them the ability to earn 60 days off their probation term for each completed educational activity....

Multiple organizations and coalitions including the REFORM Alliance led the push for the Florida Legislature to pass the bill. The REFORM Alliance is a nonprofit social justice organization founded in 2019 by rapper Meek Mill, Fanatics CEO Michael Rubin and rapper and mogul Shawn “Jay Z” Carter.  “This new law will help more than 150,000 on probation in Florida by removing barriers to their success and rewarding them for doing well,” Rubin, who serves as a co-chair for the organization, said in a statement. “Not only was this unanimously supported by members of the Florida legislature, but probation officers, business owners, and community service providers all joined us in the effort to pass this new law.”

"New public safety laws to take effect on July 1 in Tennessee"

A truth in sentencing act is among a number of new criminal and public safety laws in Tennessee that are slated to go into effect on July 1.... The new law requires a person convicted of certain offenses to serve 100% of the sentence imposed before becoming eligible for release.

The new sentencing act requires felons convicted of eight different offenses to serve 100% of their sentences undiminished by any sentence reduction credits for which the person is eligible or earns.  Those eight offenses are attempted first-degree murder, second-degree murder, vehicular homicide, especially aggravated kidnapping, especially aggravated robbery, carjacking and especially aggravated burglary.

The law also identifies another 16 offenses that require 100% of the sentence to be served unless the inmate earns a satisfactory program performance.  In such cases, an inmate can receive credits for a GED or job training that can be used for parole eligibility once a person has served a minimum of 85% of their sentence.

US Supreme Court officially swaps one former US Sentencing Commissioner for another

There is, of course, much more to say about today's historic transition in Supreme Court personnel than what I have flagged in my post title.  But, as one ever keen to keep a focus on sentencing issues, I kind of like my framing of this afternoon's SCOTUS news:

Ketanji Brown Jackson was sworn as an associate justice of the Supreme Court on Thursday, officially taking her place in history as the first Black woman to serve on the nation's highest court.

"We're here today to administer the oaths of office to Judge Ketanji Brown Jackson to become an associate justice of the Supreme Court of the United States," Chief Justice John Roberts said at the start of the ceremony, acknowledging the oaths will allow Jackson to begin her work "without any further delay."

In a brief ceremony at the Supreme Court that was broadcast live, Jackson first took the constitutional oath, administered by Roberts, followed by the judicial oath, administered by now-retired Justice Stephen Breyer. Breyer's retirement from the high court was made official at noon on Thursday, paving the way for Jackson, his former clerk, to fill his seat.

"On behalf of all of the members of the court, I am pleased to welcome Justice Jackson to the court and to our common calling," Roberts said, as applause broke out. Jackson took the oaths with her hand on two Bibles held by her husband, Patrick: a family Bible, and the "Harlan" Bible, which Justice John Marshall Harlan donated to the court in 1906.

In attendance for the swearing in were most of Jackson's new colleagues: Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett, as well as former Justice Anthony Kennedy.

In a statement distributed by the court, Jackson, 51, thanked Roberts and Breyer, calling him a "personal friend and mentor" for 20 years. She said she is "well-positioned to serve the American people." "With a full heart, I accept the solemn responsibility of supporting and defending the Constitution of the United States and administering justice without fear or favor, so help me God," she said. "I am truly grateful to be part of the promise of our great nation. I extend my sincerest thanks to all of my new colleagues for their warm and gracious welcome."

Breyer extended congratulations to the newest justice. "I am glad today for Ketanji. Her hard work, integrity, and intelligence have earned her a place on this court. I am glad for my fellow justices. They gain a colleague who is empathetic, thoughtful, and collegial. I am glad for America," he said in a statement. "Ketanji will interpret the law wisely and fairly, helping that law to work better for the American people, whom it serves."

Lots and lots of note in big SCOTUS order list at close of Term for the ages

I suspect I am not the only one fatigued from the historic Supreme Court Term that was concluded today (and I only pay really close attention to the Court's criminal docket).  But criminal justice fans may want to find some energy to review this morning's final order list, which includes lots of note.

For starters, the the order list begins with more than a few GVRs based on all the big cases of the last week including Concepcion and Ruan and Castro-Huerta.

Then, SCOTUS granted cert on three new cases, including these two criminal ones involving fraud convictions under federal law: Percoco v. US and Ciminelli v. US.

And, last but not least, the Court has a long series of statements about the denial of cert.  To cover them all, I can borrow from How Appealing's helpful posting:

In Grzegorczyk v. United States, No. 21–5967, Justice Brett M. Kavanaugh issued an opinion, in which Chief Justice John G. Roberts, Jr., and Justices Clarence Thomas, Samuel A. Alito, Jr., and Amy Coney Barrett joined, respecting the denial of certiorari. And Justice Sonia Sotomayor issued a dissent, in which Justices Stephen G. Breyer, Elena Kagan, and Neil M. Gorsuch joined, from the denial of a grant, vacate, and remand order.

In Storey v. Lumpkin, No. 21–6674, Justice Sotomayor issued an opinion respecting the denial of certiorari.

In Canales v. Lumpkin, No. 20–7065, Justice Sotomayor issued a dissent from the denial of certiorari.

In Ramirez v. Guadarrama, No. 21–778, Justice Sotomayor issued a dissent, in which Justices Breyer and Kagan joined, from the denial of certiorari.

In Cope v. Cogdill, No. 21–783, Justice Sotomayor issued a dissent from the denial of certiorari.

In Dr. A. v. Hochul, No. 21–1143, Justice Thomas issued a dissent, in which Justices Alito and Gorsuch joined, from the denial of certiorari.

And in Hill v. Shoop. No. 21–6428, Justice Sotomayor issued a dissent, in which Justices Breyer and Kagan joined, from the denial of certiorari.

I hope to find time before too long to review all of of these statement and later comment on those that strike me as particularly notable.  Readers are, of course, encouraged to flag in the comments items of particular interest.

Reviewing and reflecting on what criminalization of abortion could and will mean

In this recent post, I flagged some news articles discussing how the overruling of Roe allowing for the broad criminalization of abortion has brought attention to whether, when and how prosecutors might charge persons for abortion-related activities.  I have now seen a few more recent pieces exploring more broadly what abortion criminalization could and will mean:

From the Atlantic, "Roe Is the New Prohibition: The pro-life movement needs to know that such culture wars result not in outright victory for one side but in reaction and compromise."

From the New York Times, "In States Banning Abortion, a Growing Rift Over Enforcement: A reluctance by some liberal district attorneys to bring criminal charges against abortion providers is already complicating the legal landscape in some states."

From the New York Times, "When Brazil Banned Abortion Pills, Women Turned to Drug Traffickers: With Roe v. Wade overturned, states banning abortion are looking to prevent the distribution of abortion medication. Brazil shows the possible consequences."

From Salon, "The right's war on abortion will become the new War on Drugs: The drug war has been a colossal, expensive disaster. Now the right can build a police state to pursue a new enemy"

From the Texas Tribune, "Abortion funds languish in legal turmoil, their leaders fearing jail time if they help Texans: It’s unclear whether Texas’ tangled web of abortion laws would make it a crime to pay for a Texan to leave the state to get an abortion, but the threat has compelled the funds to cease services."

A few prior related posts:

• What might be crime and punishment echoes if Supreme Court overturns Roe v. Wade?
• Without Roe, what does sentencing law and policy look like surrounding criminalized abortions? 
• Continuing to scratch the sentencing surface if Roe is overturned and abortions are criminalized 
• SCOTUS overrules Roe with Dobbs ruling, raising new criminal justice and sentencing issues
• A focus on local prosecutors as abortions now are subject to broad criminalization after Roe's reversal

R Kelly given 30-year federal prison sentence for multiple racketeering and sex trafficking offenses

As this CNN article reports, "R&B singer R. Kelly was sentenced to 30 years in prison Wednesday ... following his conviction last year on federal racketeering and sex trafficking charges stemming from his efforts over years to use his fame to ensnare victims he sexually abused." Here is more:

Prosecutors had asked the judge to sentence Kelly, 55, to more than 25 years behind bars, while his defense attorneys asked for 10 or fewer, saying prosecutors' request was "tantamount to a life sentence."

Survivors of Kelly's abuse held hands and prayed as US District Court Judge Ann Donnelly began reading his sentence. Kelly -- who wore a tan prison uniform, dark-rimmed glasses and a black mask at the hearing in federal court in Brooklyn -- showed no emotion.

"You left in your wake a trail of broken lives," Donnelly told Kelly, whose full name is Robert Sylvester Kelly.  In deciding the sentence, Donnelly said she considered Kelly's own traumatic childhood, during which his attorneys said he was repeatedly sexually abused by a family member and a landlord.  "It may explain, at least in part, what led to your behavior," the judge said. "It most surely is not an excuse."...

Kelly's attorney, Jennifer Bonjean, said he would not address the court, pointing to the other criminal case faced by Kelly, but said before the sentence was read that her client "rejects that he is this monster."... Kelly made his only comment in response to the judge after Bonjean said he wouldn't speak: "Yes, your honor, that's my wish."...

Prior to sentencing, the court heard impact statements from seven of Kelly's victims, including Jane Doe 2, who testified at trial. "It's been 23 years since we knew each other, and you've victimized a lot of girls since then," she said, addressing Kelly. She later added: "Now it's your turn to have your freedom taken from you."...

Kelly is being held at a federal detention facility in Brooklyn and is expected to be moved back to Chicago, where he faces another federal trial in August on child pornography and obstruction charges. Childhood trauma revealed.

I believe federal prosecutors had argued in their sentencing memorandum that his guideline recommendation was life, which the defense claimed the guideline range was only 14 to 17.5 years.  I have not found a press report discussion how the guideline dispute was resolved, though this local article indicates that Judge Donnelly "said that her sentence is one 'I would have imposed regardless of the guidelines'."

Furman at 50: so much and so little

On this date exactly 50 years ago, the US Supreme Court handed down its remarkable death penalty opinion in Furman v. Georgia, 408 U.S. 238 (1972). All nine Justices wrote separate opinions in Furman, resulting in one of the longest decision in the Court's history.  But the actual opinion of the Court is a so short that I can be reprinted it in full here: 

PER CURIAM.

Petitioner in No. 69—5003 was convicted of murder in Georgia and was sentenced to death pursuant to Ga. Code Ann. § 26—1005 (Supp.1971) (effective prior to July 1, 1969). 225 Ga. 253, 167 S.E.2d 628 (1969).  Petitioner in No. 69—5030 was convicted of rape in Georgia and was sentenced to death pursuant to Ga. Code Ann. § 26—1302 (Supp.1971) (effective prior to July 1, 1969). 225 Ga. 790, 171 S.E.2d 501 (1969). Petitioner in No. 69—5031 was convicted of rape in Texas and was sentenced to death pursuant to Vernon's Tex. Penal Code, Art. 1189 (1961). 447 S.W.2d 932 (Ct.Crim.App.1969).  Certiorari was granted limited to the following question: 'Does the imposition and carrying out of the death penalty in (these cases) constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?' 403 U.S. 952, 91 S.Ct. 2287, 29 L.Ed.2d 863 (1971).  The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.  The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings. So ordered.

Judgment in each case reversed in part and cases remanded.

Mr. Justice DOUGLAS, Mr. Justice BRENNAN, Mr. Justice STEWART, Mr. Justice WHITE, and Mr. Justice MARSHALL have filed separate opinions in support of the judgments.  THE CHIEF JUSTICE, Mr. Justice BLACKMUN, Mr. Justice POWELL, and Mr. Justice REHNQUIST have filed separate dissenting opinions.

There are so many interesting elements to the Court's work in Furman, and so much to what has transpired in the subsequent half century, I cannot do this topic any kind of justice in just a few blog posts. But, with summer just getting started, perhaps I will do a series of posts (and welcome guest posters) through the summer months on Furman at 50.  As the title of this post suggests, one theme I always develop when I teach Furman is that the ruling and its aftermath can be viewed as having achieved so much or as having achieved so little.  I am not sure which framing may be central in future posts, but I suppose time will tell how the half-century spirit of Furman might move me.

Is the Bruen Second Amendment ruling really "an important step to ending mass incarceration"?

As highlighted by prior posts here and here, I am intrigued by what Supreme Court's big Bruen ruling (basics here) will mean from Second Amendment jurisprudence and a variety of gun prohibitions.  But the question in the title of this post is prompted by this  Washington Post opinion piece by Aimee Carlisle, Christopher Smith and Michael Alexander Thomas which seems to have particular grand expectations about what Bruen could bring.  Here are excerpts:

As public defenders in New York City who represent people charged with illegal gun possession — people who, according to the New York City Police Department’s own data, are almost invariably Black and Brown — we see the majority’s decision in New York State Rifle & Pistol Association v. Bruen as an important step to ending mass incarceration.  That’s why we joined other public defenders in filing an amicus brief in the case asking the court to abandon its ivory tower and consider the law’s impact on those people who bear the brunt of New York’s gun laws — our clients....

Because possession of an unlicensed, loaded firearm is a “violent felony” under New York law, people with no criminal record who are convicted face a mandatory minimum sentence of 3½ years in prison; the maximum is 15 years.  They can lose their jobs, their housing, their children and, if they are not citizens, their right to live in the United States. All for carrying a gun without ever threatening anyone or pulling the trigger — conduct that in many states is not a crime at all....

Now, following the landmark ruling in Bruen, New York can no longer impose hurdles that render the Second Amendment a fiction.... The solution to gun violence is not imprisoning people simply for carrying a gun — and burdening them with the lifelong consequences that follow.  The only acceptable solution must reject racist intent and impact at every stage.  We must break our addiction to mass incarceration.

The next steps are clear.  Now that the Supreme Court has spoken, prosecutors must dismiss all gun cases that punish people for engaging in constitutionally protected activity and free them from jail.  As state lawmakers weigh their legislative response to the decision, we hope they will finally safeguard New Yorkers’ right to keep and bear arms and create a system free of racism.

I always eager to see our laws move away, in any and every possible way, from unnecessary and excessive incarceration.  And I am hopeful that any and all persons now incarcerated based on criminal laws that Bruen makes constitutional will swiftly get justice pursuant to their constitutional rights.  But there is a long history of legislators, prosecutors and others often working quite hard to restrict which defendants get retroactive relief from major Supreme Court ruling and to find new ways to criminalize a broad swatch of disfavored conduct.  Though Bruen may end up having lots of echoes, I am not certainly expecting it to make a real dent in our nation's incarceration levels.  

Prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen? 

Via 5-4 ruling, Supreme Court limits reach of McGirt to rule states can "prosecute crimes committed by non-Indians against Indians in Indian country"

The last big criminal law case on the Supreme Court's docket was handed down this morning, and the Court split 5-4 in Oklahoma v. Castro-Huerta, No. 21-429 (S. Ct. June 29, 2022) (available here). The opinion for the Court was authored by Justice Kavanaugh, and it starts and ends this way: 

This case presents a jurisdictional question about the prosecution of crimes committed by non-Indians against Indians in Indian country: Under current federal law, does the Federal Government have exclusive jurisdiction to prosecute those crimes?  Or do the Federal Government and the State have concurrent jurisdiction to prosecute those crimes?  We conclude that the Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country....

We conclude that the Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country.  We therefore reverse the judgment of the Oklahoma Court of Criminal Appeals and remand the case for further proceedings not inconsistent with this opinion.

Justice Gorsuch authored the dissent, which was joined by Justices Breyer, Sotomayor and Kagan. It starts this way:

In 1831, Georgia arrested Samuel Worcester, a white missionary, for preaching to the Cherokee on tribal lands without a license.  Really, the prosecution was a show of force — an attempt by the State to demonstrate its authority over tribal lands. S peaking for this Court, Chief Justice Marshall refused to endorse Georgia’s ploy because the State enjoyed no lawful right to govern the territory of a separate sovereign.  See Worcester v. Georgia, 6 Pet. 515, 561 (1832).  The Court’s decision was deeply unpopular, and both Georgia and President Jackson flouted it.  But in time, Worcester came to be recognized as one of this Court’s finer hours.  The decision established a foundational rule that would persist for over 200 years: Native American Tribes retain their sovereignty unless and until Congress ordains otherwise.  Worcester proved that, even in the “[c]ourts of the conqueror,” the rule of law meant something. Johnson’s Lessee v. McIntosh, 8 Wheat. 543, 588 (1823).

Where this Court once stood firm, today it wilts.  After the Cherokee’s exile to what became Oklahoma, the federal government promised the Tribe that it would remain forever free from interference by state authorities.  Only the Tribe or the federal government could punish crimes by or against tribal members on tribal lands.  At various points in its history, Oklahoma has chafed at this limitation.  Now, the State seeks to claim for itself the power to try crimes by non-Indians against tribal members within the Cherokee Reservation.  Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another’s.  Respectfully, I dissent.

Homicides (perhaps) trending down through first half of 2022, including in big cities like Chicago, New York City and Philadelphia

With significant upticks in homicides and some other crimes reported in many areas throughout the US in 2020 and 2021(see background/complications here and here and here and here), it is not surprising that there is considerable concern in many quarters about crime policies and crime politics.  Still, anyone who follows crime trends knows they can often have an unpredictable and unexplained quality.  Against that backdrop, I have been watching closely the homicides being reported via police crime reports in various cities over the first half of 2022.  In particular, this AH Datalytics webpage provides a very helpful "YTD Murder Comparison" Dashboard that collects homicide data from police in nearly 100 big cities. 

Though the AH Datalytics page has some lags in the data and only has city data, I still think it notable as we approach the end of the first half of 2022 that this dashboard as of this morning indicates that nearly two-thirds of all cities are reporting that homicides are down in 2022 relative to 2021.  In addition, the cumulated data from all the cities tracked show that nationwide murders in large cities are down more than 2%.  Also notable are encouraging downward trends in homicides over the first half of this year in some of our nation's largest cities.  Specifically, based on (linked) police reports, we see: 

Chicago homicides down 11% (as of June 19)

Los Angeles homicides up 1% (as of June 25)

New York City homicides down 13% (as of June 26)

Philadelphia homicides down 10% (as of June 28)

(I could not find up-to-date homicide data from Houston and Phoenix.)  Of course, these four very big cities (and all the AH Datalytics cities) are not fully representative of what may be going on with homicides in every area nationwide.  Moreover, these reported homicide declines are on the heels of notably high homicide rates in many locales in 2021.  And a few mass shootings (or bad days) in these cities could erase the small homicide safety gains over the first half of 2022.  Still, with all these caveats, these encouraging data at least provide a basis for me to begin to hope that surging homicides in 2020 and 2021 were mostly a pandemic era phenomenon and that we may return to lower homicide rates before too long.  But, reiterating that homicide and broader crime trend often have unpredictable and unexplained qualities, it is certainly possible that six months from now the 2022 data could tell a very different story.

"The Fat Prisoners’ Dilemma: Slow Violence, Intersectionality, and a Disability Rights Framework for the Future"

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

Law has ignored the problems of fatness in prisons and jails and regularly fails to address much-needed accommodations for fat incarcerated people due to flaws in incarceration law and applications of disability law.

The dilemma of fat incarcerated people extends beyond litigation difficulties, however.  It is a heuristic that illustrates the depth of the harm of mass incarceration and the need to take disability seriously — and how complicated taking disability seriously is.  Attention to the social inequities that produce and maintain the population of fat people in prisons exposes a profound tension in disability scholarship and activism.  Typically, disability scholarship and advocacy seek to unite a disability community of people with varying bodily impairments by focusing on stigma and stereotyping. While people’s bodies are different, all disabled people experience ableism.  This Article contends that disability scholars and advocates can and should augment their focus on stigma and stereotyping to emphasize the social inequities such as environmental poisoning, racism, poverty, and violence that produce many debilitating impairments.  This proposal is an uncomfortable proposition for disability scholarship and advocacy wary of eugenic treatment and “cures.”  Reducing social inequities would reduce the population of disabled people, and advocacy to improve the environmental predecessors to impairment could be viewed as a condemnation of the state of disability itself.

However, proper attention to intersectional injustice in conjunction with respect for disabled people requires thoughtful consideration of the production of impairments.  Although not all disabilities are the result of social injustice, knitting together social inequality and disability would reorient the field on those who are most marginalized, redirect it toward a greater reliance on intersectional principles, and link it to other political and legal campaigns that challenge injustice.

Ghislaine Maxwell given 20-year federal sentence for sex trafficking for Jeffrey Epstein

In this post over the weekend, I asked in anticipation of today's high-profile sentencing, "what federal sentence for convicted sex trafficker Ghislaine Maxwell?."  Commentor tmm nailed the outcome, as reported here by the AP:

Ghislaine Maxwell, the jet-setting socialite who once consorted with royals, presidents and billionaires, was sentenced to 20 years in prison Tuesday for helping the financier Jeffrey Epstein sexually abuse underage girls.  The stiff sentence was the punctuation mark on a trial that explored the sordid rituals of a predator power couple who courted the rich and famous as they lured vulnerable girls as young as 14, and then exploited them.

Prosecutors said Epstein, who killed himself in 2019 while awaiting trial, sexually abused children hundreds of times over more than a decade, and couldn’t have done so without the help of Maxwell, his longtime companion and onetime girlfriend who they said sometimes also participated in the abuse.  In December, a jury convicted Maxwell of sex trafficking, transporting a minor to participate in illegal sex acts and two conspiracy charges.

U.S. District Judge Alison J. Nathan, who also imposed a $750,000 fine, said “a very significant sentence is necessary” and that she wanted to send an “unmistakable message” that these kinds of crimes would be punished.  Prosecutors had asked the judge to give her 30 to 55 years in prison, while the 60-year-old Maxwell’s defense sought a lenient sentence of just five years....

When she had a chance to speak, Maxwell said she empathized with the survivors and that it was her “greatest regret of my life that I ever met Jeffrey Epstein.” Maxwell called him “a manipulative, cunning and controlling man who lived a profoundly compartmentalized life,” echoing her defense attorneys’ assertions that Epstein was the true mastermind. Maxwell, who denies abusing anyone, said she hoped that her conviction and her “unusual incarceration” bring some “measure of peace and finality.”

Nathan refused to let Maxwell escape culpability, making clear that Maxwell was being punished for her own actions, not Epstein’s. She called the crimes “heinous and predatory” and said Maxwell as a sophisticated adult woman provided the veneer of safety as she “normalized” sexual abuse through her involvement, encouragement and instruction....

Assistant U.S. Attorney Alison Moe recounted how Maxwell subjected girls to “horrifying nightmares” by taking them to Epstein. “They were partners in crime together and they molested these kids together,” she said, calling Maxwell “a person who was indifferent to the suffering of other human beings.”

Epstein and Maxwell’s associations with some of the world’s most famous people were not a prominent part of the trial, but mentions of friends like Bill Clinton, Donald Trump and Britain’s Prince Andrew showed how the pair exploited their connections to impress their prey.

Over the past 17 years, scores of women have accused Epstein of abuse them, with many describing Maxwell as the madam who recruited them.  The trial, though, revolved around allegations from only a handful of those women.  Four testified that they were abused as teens in the 1990s and early 2000s at Epstein’s mansions in Florida, New York, New Mexico and the Virgin Islands....

At least eight women submitted letters to the judge, describing the sexual abuse they said they endured for having met Maxwell and Epstein.  Six of Maxwell’s seven living siblings wrote to plead for leniency.  Maxwell’s fellow inmate also submitted a letter describing how Maxwell has helped to educate other inmates over the last two years.  Anne Holve and Philip Maxwell, her eldest siblings, wrote that her relationship with Epstein began soon after the 1991 death of their father, the British newspaper magnate Robert Maxwell.

Based on the sentencing filings noted in this prior post, I believe the Government argued the applicable federal sentencing guideline range was 360 month-life, but this CBS article indicates that Judge Nathan concluded the proper guideline range was 188-235 months.  So, by adopting a more lenient guideline calculation, Judge Nathan technically gave Maxwell and above-guideline sentence.

Prior related posts:

• "How Much Prison Time Could Ghislaine Maxwell Serve After Sex Trafficking Conviction?"
• You be the judge: what federal sentence for convicted sex trafficker Ghislaine Maxwell? 

Ohio Gov extends state's unofficial moratorium on executions

Not all that long ago, Ohio was one of the busiest states not named Texas when it came to carrying out executions.  Specifically, between 2002 and 2013, the Buckeye State carried out 50 executions.  Ohio was also innovative in this era, pioneering in 2009 a new one-drug execution protocol that had not previously been used in the state.  But, due in part to some execution problems and in part to some effective litigation, times have really chanced.  Only four executions have been carried out in Ohio over the last eight years, and an unofficial moratorium now looks poised to extend at least into 2023.  This new AP article, headlined "Ohio Governor Postpones Last Scheduled 2022 Execution," explains:

Ohio Gov. Mike DeWine has postponed the last execution that was scheduled for this year, pushing the October date for Quisi Bryan, convicted of killing a Cleveland police officer, to early in 2026.

The move once again called into question the functionality of capital punishment in the state.  With an unofficial moratorium in place, a veteran defense attorney recently argued there's no point in holding a death penalty trial for his client, accused in the 2016 massacre of a southern Ohio family.  “Why should we have to go through a death penalty trial when Ohio doesn’t have the death penalty?” attorney John Parker said June 21 at a hearing for George Wagner IV, charged in the killing of eight members of the Rhoden family....

DeWine's decision Friday to postpose Bryan's execution was one of several reprieves the governor has issued in recent years as the state struggles to find an adequate supply of drugs for lethal injection.

DeWine, a Republican, has attributed the need for the reprieves to the state’s ongoing inability to obtain drugs from pharmaceutical companies.  DeWine has said he is concerned that drug companies — which oppose the use of their drugs in executions — could pull pharmaceuticals from state hospitals to punish Ohio if it did secure their drugs and use them for lethal injection.

Currently, 11 men are scheduled for execution next year. But it's likely that, should DeWine be reelected, those would also be postponed....  The state’s last execution was July 18, 2018, when Ohio put to death Robert Van Hook for killing a man he met in a bar in Cincinnati in 1985.

SCOTUS ruling in Concepcion, while addressing crack cases, should also resolve circuit split on compassionate release factors

There are many notable aspects to the Supreme Court's work this morning in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here).  The votes alone could justify many posts, with Justices Thomas and Gorsuch joining an opinion broadly praising broad district court sentencing discretion (citing historical cases for good measure), and with all the other conservative justices embracing a fairly impractical (and unjust) statutory construction without considering any statutory canons. 

More generally, in keeping with my prior complaints about the oral arguments in this case, I was struck that none of the opinions in Concepcion mention sentencing purposes or justice or fairness even once in a case that concerns efforts by Congress to give full effect to the Fair Sentencing Act through the FIRST STEP Act.  The fundamental legal issue in Concepcion was whether a group of defendants (almost all of whom are persons of color) who have been serving, according to Congress, unjust and wrongful federal sentences for more than a dozen years should be limited in how they can now argue for more just and rightful sentences.  And, given that the defendant in the case had already served 15 years (of a 19-year sentence) for a conviction based on selling a tablespoon of crack, there are an array of rich legal and human stories here that justify further attention.

But, as the title of this post highlights, I am already thinking about what the Concepcion ruling means outside the crack context.  Specifically, I think the decision resolves not only the circuit split surrounding crack resentencing cases, but also the circuit split surrounding what factors can serve as the basis for compassionate release after the FIRST STEP Act.  Let me explain.

As most recently highlighted via this post about a First Circuit ruling in February, there is a deep circuit split about whether non-retroactive changes in sentencing law may constitute "extraordinary and compelling reasons" for compassionate release.  Ever the textualist, I have argued that non-retroactive changes in sentencing law can provide the basis for compassion release because nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors.  But I believe the Third, Sixth, Seventh and Eighth Circuits have all formally held otherwise.  And yet, this language from the Supreme Court's opinion in Concepcion would seem to undercut any court efforts to invent extra-textual limits on sentencing or resentencing considerations:

It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained....

Federal courts historically have exercised this broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them.  That discretion also carries forward to later proceedings that may modify an original sentence.  Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence....

The only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution....

Moreover, when raised by the parties, district courts have considered nonretroactive Guidelines amendments to help inform whether to reduce sentences at all, and if so, by how much....  Nothing express or implicit in the First Step Act suggests that these courts misinterpreted the Act in considering such relevant and probative information.

All this language about a court's broad discretion not only at initial sentencing but also when considering a sentence modification is directly relevant to federal judges' consideration of so-called compassionate release motions.  Concepcion makes plain, contrary to the problematic rulings of some circuits, that the "only limitation" on valid considerations are those in the Constitution or that Congress has expressly set forth.  And thus the Supreme Court's textualist ruling here ought to not only benefit Carlos Concepcion, but also every federal prisoner moving for compassionate release on any and all possible grounds not expressly excluded by Congress or the Constitution.

Prior related post:

• Via 5-4 ruling, Supreme Court stresses broad sentencing discretion in crack resentencing case Concepcion

US Sentencing Commission releases another recidivism report examining "status points" in criminal history calculations

Despite lacking a quorum, the US Sentencing Commission keeps churning out a remarkable amount of research in recent times, especially in the area of recidivism of federal offenders.  Today brings this notable notable USSC report on recidivism and criminal history under the title "Revisiting Status Points."  The term "status points" is a short-hard reference to the two points added to a defendant's criminal history score under guideline § 4A1.1(d) if he committed the offense while still serving a sentence in another case (eg, while being on probation or parole).  This webpage provides an overview and key findings from the new report:

Overview

In 2005, the Commission examined status points (addressed in §4A1.1(d)) as part of a broader analysis of how well the guidelines’ criminal history computation predicts recidivism.  This report revisits the examination of status points with greater focus, including a detailed analysis of their application and significance.  The report begins by outlining how criminal history is calculated under the guidelines and by reviewing prior Commission research on the association between criminal history and recidivism.  The report then examines how many offenders received status points in the last five fiscal years and compares them to offenders who did not receive status points.  Next, the report analyzes the rearrest rates for offenders with and without status points who were released from prison or began a term of probation in 2010.  Finally, the report considers how much status points contribute to the criminal history score’s prediction of rearrest.

Key Findings

In the last five fiscal years:

• Over one-third of federal offenders (37.5%) received two “status points” under §4A1.1(d) as part of their criminal history scores. For 61.5 percent of such offenders, the inclusion of the two points resulted in a higher Criminal History Category.
• The vast majority of offenders who received status points (92.6%) had criminal history scores that placed them in Criminal History Category III and higher, compared to a little less than half of offenders who did not receive status points (47.0%)....

Among offenders who were released in 2010:

• Those who received status points were rearrested at similar rates to those without status points who had the same criminal history score. For example, among offenders whose criminal history score was seven, 69.6 percent of those with status points and 70.4 percent of those without status points were rearrested in the eight years after release.
• Three-fifths (61.1%) of offenders who received status points had five or more criminal history points for prior sentences (i.e., before adding in two status points). These offenders had a statistically similar rearrest rate to offenders without status points who had the same number of points for prior sentences.
• The remaining two-fifths (38.9%) of offenders who received status points had one to four criminal history points for prior sentences (i.e., before adding in two status points). These offenders had a statistically higher rearrest rate than offenders without status points who had the same number of points for prior sentences.
• Status points only minimally improve the criminal history score’s successful prediction of rearrest — by 0.2 percent. With status points included in the calculation for eligible offenders, the score successfully predicts rearrest 65.1 percent of the time, compared to 64.9 percent of the time with status points removed.

SCOTUS unanimously rejects federal convictions for opioid docs in Ruan, with majority stressing mens rea requirement

Every member of the Supreme Court agreed this morning in Xiulu Ruan v. US, No. 20-1410 (S. Ct. June 27, 2022) (available here), decided that the federal drug distribution convictions of two doctors who prescribed opioids was problematic.  But the Court divided on the rationale, with Justice Breyer writing the opinion for the majority that starts this way:

A provision of the Controlled Substances Act, codified at 21 U.S.C. § 841, makes it a federal crime, “[e]xcept as authorized[,] . . . for any person knowingly or intentionally . . . to manufacture, distribute, or dispense . . . a controlled substance,” such as opioids. 84 Stat. 1260, 21 U.S.C. § 841(a) (emphasis added). Registered doctors may prescribe these substances to their patients. But, as provided by regulation, a prescription is only authorized when a doctor issues it “for a legitimate medical purpose . . . acting in the usual course of his professional practice.” 21 CFR §1306.04(a) (2021).

In each of these two consolidated cases, a doctor was convicted under § 841 for dispensing controlled substances not “as authorized.” The question before us concerns the state of mind that the Government must prove to convict these doctors of violating the statute. We hold that the statute’s “knowingly or intentionally” mens rea applies to authorization. After a defendant produces evidence that he or she was authorized to dispense controlled substances, the Government must prove beyond a reasonable doubt that the defendant knew that he or she was acting in an unauthorized manner, or intended to do so.

Justice Alito authored a lengthy opinion to concur in the judgment which was joined in full by Justice Thomas and partially by Justice Barrett. Here is how it begins:

In criminal law, the distinction between the elements of an offense and an affirmative defense is well-known and important. In these cases, however, the Court recognizes a new hybrid that has some characteristics of an element and some characteristics of an affirmative defense. The consequences of this innovation are hard to foresee, but the result may well be confusion and disruption. That risk is entirely unnecessary.

We granted certiorari in these cases to decide whether a physician may be convicted of dispensing or distributing drugs by prescription under a provision of the Controlled Substances Act of 1970 (CSA), 21 U.S.C. §841(a), if he or she believed in good faith that the prescription was within the course of professional practice. In my view, there is a straightforward answer to this question. The CSA contains an exception for prescriptions issued in the course of professional practice, and this exception is a carry-over from the CSA’s predecessor, the Harrison Narcotics Act of 1914, 38 Stat. 785. In interpreting the Harrison Act, this Court held that a registered physician acts “in the course of his professional practice” when the physician writes prescriptions “in good faith.” Linder v. United States, 268 U.S. 5, 17–18 (1925). I would hold that this rule applies under the CSA and would therefore vacate the judgments below and remand for further proceedings.

Via 5-4 ruling, Supreme Court stresses broad sentencing discretion in crack resentencing case Concepcion

In a 5-4 decision, with a somewhat surprising group of Justices in the majority, the Supreme Court this morning in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here), stressed the broad scope of information that may be consider at sentencing or sentence modification. Here is how Justice Sotomayor's opinion for the Court gets started:

There is a longstanding tradition in American law, dating back to the dawn of the Republic, that a judge at sentencing considers the whole person before him or her “as an individual.” Koon v. United States, 518 U.S. 81, 113 (1996). In line with this history, federal courts today generally “exercise a wide discretion in the sources and types of evidence used” to craft appropriate sentences. Williams v. New York, 337 U.S. 241, 246 (1949). When a defendant appears for sentencing, the sentencing court considers the defendant on that day, not on the date of his offense or the date of his conviction. Pepper v. United States, 562 U.S. 476, 492 (2011).  Similarly, when a defendant’s sentence is set aside on appeal, the district court at resentencing can (and in many cases, must) consider the defendant’s conduct and changes in the Federal Sentencing Guidelines since the original sentencing. Ibid.

Congress enacted the First Step Act of 2018 against that backdrop. The First Step Act authorizes district courts to reduce the prison sentences of defendants convicted of certain offenses involving crack cocaine. The Act allows a district court to impose a reduced sentence “as if ” the revised penalties for crack cocaine enacted in the Fair Sentencing Act of 2010 were in effect at the time the offense was committed. The question in this case is whether a district court adjudicating a motion under the First Step Act may consider other intervening changes of law (such as changes to the Sentencing Guidelines) or changes of fact (such as behavior in prison) in adjudicating a First Step Act motion.

The Court holds that they may. It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained. Nothing in the First Step Act contains such a limitation. Because district courts are always obligated to consider nonfrivolous arguments presented by the parties, the First Step Act requires district courts to consider intervening changes when parties raise them. By its terms, however, the First Step Act does not compel courts to exercise their discretion to reduce any sentence based on those arguments.

The District Court in this case declined to consider petitioner Carlos Concepcion’s arguments that intervening changes of law and fact supported his motion, erroneously believing that it did not have the discretion to do so, and the Court of Appeals affirmed. The Court now reverses.

Justice Kavanaugh authored the chief dissent for the Chief Justice, Justice Alito and Justice Barrett. It concludes this way:

The Court’s disregard of the text of the First Step Act is especially audacious because the Act was a heavily negotiated and vigorously debated piece of legislation. The Act reflects a compromise among competing interests. Not for the first time in a sentencing case, the Court’s decision today unravels the legislative compromise reflected in the statutory text. The Court in effect green-lights district courts, if they wish, to make the 2016 amendment to the career-offender guideline retroactive in First Step Act proceedings—even though neither Congress nor the Sentencing Commission has made that amendment retroactive. Perhaps the Court’s decision represents better sentencing policy. Perhaps not. But under the Constitution’s separation of powers, this Court may not simply rewrite the First Step Act as the Court thinks best.

In sum, I would conclude that the First Step Act authorizes district courts to reduce a sentence based on changes to the crack-cocaine sentencing ranges, but not based on other unrelated legal or factual changes since the original sentencing. The Court holds otherwise. Therefore, I respectfully dissent.

I will need some time to review these opinions closely before being able to discuss the broader meaning and impact. But, yet again, it turns out sentencing jurisprudence at the Supreme Court is more pro-defendant than in many lower courts.

Lots of GVRs based on Taylor limiting "crime of violence" for applying 924(c) sentence enhancement

As night follows day, it regularly follows after a significant new Supreme Court decision limiting the reach of a federal criminal statute that a subsequent Supreme Court order list grants, vacates and remands (GVRs) a number of cases "for further consideration in light of" the new decision.  In this morning's order list, the Supreme Court's 7-2 decision last week in US v. Taylor, No. 20–1459 (S. Ct. June 21, 2022) (available here), provides the basis for twenty GVRs.

Because Taylor limited the reach of what serves as a "crime of violence" under 18 U.S.C. § 924(c)(3)(A), a statute which impacts whether and when an "individual may face a second felony conviction and years or decades" of additional mandatory imprisonment for having a gun involved in the commission of certain offenses (basics here), I suspect there will be future Taylor GVRs and likely lots of other echoes from the decision.  

Especially in the wake of the Supreme Court's high-profile ruling in Bruen changing the jurisprudence of the Second Amendment (basics here, questions here and here), it is interesting to note that two big wins for criminal defendants this SCOTUS Term came in cases limiting the reach of federal criminal statutes imposing severe mandatory punishments for gun-related offenses.  Though Taylor and Wooden (basics here, analysis here) will not get nearly as much attention as Bruen, for certain folks they will prove even more important.

After historic week, SCOTUS still has a final few notable criminal justice cases to resolve

Earlier this month, I flagged in this post the six notable cases that I was most eagerly awaiting as a remarkable Supreme Court Term was coming to a close.  Four of those cases were resolved last week, with Taylor and Nance providing small wins for criminal defendants, and then Bruen and Dobbs producing big jurisprudential changes for gun rights and abortion practices.  In some other years, Bruen would be the Term's memorable case.  But the enduringly contentious issue of abortion, and the legal and political uncertainty following the full reversal of Roe and Casey, ensures that Dobbs will be the most consequential and debated case for many years to come.

But the Supreme Court still has final seven cases to resolve, three of which involve criminal justice matters.  The lingering criminal cases, some or all of which could be handed down as early as tomorrow morning, are not the highest profile of the remaining matters.  Cases involving the authority of the EPA to regulate greenhouse gases, detention policies at the southern border and a praying high school football coach are sure to get more attention than any of the criminal cases.  And yet, the three remaining criminal cases could still prove to be a big deal, and I will borrow here from Amy Howe's helpful accounting of them:

1. Concepcion v. United States (argued Jan. 19): Whether, when a court is deciding whether to resentence a defendant under the First Step Act, which gives federal district courts power to resentence offenders in light of changes in the Fair Sentencing Act of 2010, a district court must or may consider intervening developments, or whether such developments only come into play (if at all) after courts conclude that a sentence reduction is appropriate.
2. Ruan v. United States (argued Mar. 1): Whether a doctor who has the authority to prescribe controlled substances can be convicted for unlawful distribution of those drugs when he reasonably believed that his prescriptions fell within professional norms.
3. Oklahoma v. Castro-Huerta (argued April 27): Whether a state has authority to prosecute defendants who are not Native Americans, but who commit crimes against Native Americans on land that Congress historically reserved for Native people. 

You be the judge: what federal sentence for convicted sex trafficker Ghislaine Maxwell?

A high-profile sentencing is scheduled for NYC federal court this coming week.  This CNN article from last last, reporting on prosecutors' sentencing filing, provides a partial preview:

Federal prosecutors asked a judge in a court filing Wednesday to sentence Ghislaine Maxwell to 30 to 55 years in prison for sex trafficking a minor and other charges related to a sprawling conspiracy to abuse young girls with the wealthy financier Jeffrey Epstein.

"Maxwell was an adult who made her own choices. She made the choice to sexually exploit numerous underage girls. She made the choice to conspire with Epstein for years, working as partners in crime and causing devastating harm to vulnerable victims," prosecutors wrote in the sentencing memo. "She should be held accountable for her disturbing role in an extensive child exploitation scheme."

Last week, Maxwell's lawyers asked a judge to sentence her to between 4.25 and 5.25 years in prison, saying her difficult childhood made her vulnerable to Epstein and that she shouldn't face a harsh sentence because of his actions. "But this Court cannot sentence Ms. Maxwell as if she were a proxy for Epstein simply because Epstein is no longer here," her attorneys wrote in their sentencing recommendation....

Epstein, who pleaded guilty in 2008 to state prostitution charges, was indicted on federal sex trafficking charges in July 2019 but died by suicide in prison a month later. Maxwell, his confidante and former girlfriend, was arrested a year afterward and has been held in jail since. In the sentencing memo, the prosecution wrote that the defense's argument was "absurd and offensive."

"The lenient sentence the defendant seeks would send the message that there is one system of laws for the rich and powerful, and another set for everyone else," prosecutors wrote.... 

Maxwell, 60, was found guilty of five federal charges in December: sex trafficking of a minor, transporting a minor with the intent to engage in criminal sexual activity and three related counts of conspiracy.  However, she will only be sentenced on three counts after the judge presiding over her case agreed that two of the conspiracy counts she faced were repetitive.

The probation department recommended a 20-year sentence, below the sentencing guidelines. 

At her trial late last year, prosecutors argued Maxwell and Epstein conspired to set up a scheme to lure young girls into sexual relationships with Epstein from 1994 to 2004 in New York, Florida, New Mexico and the US Virgin Islands. Four women testified during the trial that Epstein abused them and that Maxwell facilitated the abuse and sometimes participated in it as well.

Her defense, meanwhile, said she was a "scapegoat" for Epstein's actions and attacked the memories and motivations of the women who said they were sexually abused.

The federal prosecutors' sentencing filing, which is available here, contends that "the applicable sentencing range is 360 months to life imprisonment [but] the statutory maximum penalty is 660 months’ imprisonment, [so] the Guidelines range becomes 360 to 660 months’ imprisonment."  But the defense sentencing memorandum, which is available here, requests "that the Court grant Ms. Maxwell a significant variance below the advisory Sentencing Guidelines range of 292-365 months and below the 240-month sentence recommended by the Probation Department."

But, as of this writing on the morning of June 26, it now seem there is a chance the sentencing will not go forward this week.  This Reuters article explains:

Ghislaine Maxwell has been put on suicide watch at a Brooklyn jail, and may seek to delay her Tuesday sentencing for aiding Jeffrey Epstein's sexual abuse of underage girls, her lawyer said on Saturday night.  In a letter to the judge overseeing Maxwell's case, Maxwell's lawyer, Bobbi Sternheim, said her client is "unable to properly prepare, for sentencing," after officials at the Metropolitan Detention Center on Friday declared the suicide watch and abruptly moved Maxwell to solitary confinement.

Sternheim said Maxwell was given a "suicide smock," and her clothing, toothpaste, soap and legal papers were taken away. The lawyer also said Maxwell "is not suicidal," a conclusion she said a psychologist who evaluated the 60-year-old British socialite on Saturday morning also reached.

"If Ms. Maxwell remains on suicide watch, is prohibited from reviewing legal materials prior to sentencing, becomes sleep deprived, and is denied sufficient time to meet with and confer with counsel, we will be formally moving on Monday for an adjournment," Sternheim wrote.

Prior related post:

• "How Much Prison Time Could Ghislaine Maxwell Serve After Sex Trafficking Conviction?"