Sentencing Law and Policy

Noticing the shape of the federal death penalty circa 2023

Just under 20 years ago, in the inaugural issue of the Ohio State Journal of Criminal Law, Carol Steiker and Jordan Steiker authored this fascinating little article imagining the death pemalty circa 2022.  The article's title, "Abolition in Our Time," reveals that the piece did not perfectly predict the future.  But the piece did have this somewhat prescient take on how "the politics of the death penalty have shifted":

Prominent politicians in both parties are willing to oppose the death penalty publicly, though very few make it a political priority. Many such leaders also distinguish between the importance of retaining the death penalty for cases in which "vital national interests" are at stake — the war on terrorism — and cases involving ordinary state law enforcement.

The Steikers' article came to mind for me today as I read this new New York Times piece discussing the current state of the federal death penalty. The piece is headlined "Suspect in Bike Path Killing Faces First Death Penalty Trial Under Biden," and here are excerpts:

On Halloween 2017, Sayfullo Saipov plowed a rented pickup truck down Manhattan’s crowded West Side bicycle path, smashing into pedestrians and cyclists, killing eight people and injuring more than a dozen, the authorities said.

Soon after Mr. Saipov was charged, President Donald J. Trump tweeted, “SHOULD GET DEATH PENALTY!” And his attorney general later directed prosecutors to seek execution if Mr. Saipov was convicted.

Last year, Mr. Saipov’s lawyers asked President Biden’s Justice Department to withdraw that order. Mr. Biden, after all, had campaigned against capital punishment. But his attorney general, Merrick B. Garland, denied the request, and on Monday, Mr. Saipov’s trial is scheduled to begin in Federal District Court in Manhattan — the first federal death penalty trial under the Biden administration.

Mr. Garland’s decision to continue pursuing the death penalty for Mr. Saipov, an Uzbek immigrant, suggests a nuanced approach, one in which he has been reluctant to withdraw the threat of capital punishment in one type of case in particular: terrorism-related offenses....

Since taking office nearly two years ago, Mr. Garland has not sought capital punishment in any new case and indeed has declared a nationwide moratorium on federal executions. The Justice Department has also withdrawn directives issued by previous administrations seeking the death penalty against 25 federal defendants, according to court records and the department’s data.

At the same time, the department has defended appeals of the death sentences imposed during President Barack Obama’s administration on Dzhokhar Tsarnaev, the Boston Marathon bomber, and Dylann S. Roof, the white supremacist who killed nine members of a Black church in South Carolina....

A spokesman for the Justice Department said that as a matter of policy it does not offer public reasons for decisions to withdraw death penalty directives. Nicholas Biase, a spokesman for the U.S. attorney’s office in Manhattan, and David E. Patton, a lawyer for Mr. Saipov, declined to comment on the case.

But some lawyers said a pattern had emerged: None of the 25 defendants for whom the Justice Department has withdrawn death penalty requests were charged in a terrorism-related offense.  “Early on, it became clear that notwithstanding the statements made by both the president and the attorney general, that there was going to be this sort of carve-out around terrorism,” said Anthony L. Ricco, a veteran death penalty defense lawyer in New York.

Reviewing prosecutions and sentencings two years after January 6 Capitol riots

A number of major papers today provide some major reviews of the prosecution and sentencing of January 6 rioters on the two-year anniversary of the storming of the Capitol.  Here are headlines and links, as well as an except from the story most focused on sentencing outcomes:

From the New York Times, "Two Years Later, Prosecutions of Jan. 6 Rioters Continue to Grow: The Justice Department’s investigation of the Capitol attack, already the largest it has ever conducted, has resulted in 900 arrests, with the potential for scores or hundreds more to come."

From USA Today, "More than 950 people have been charged in Jan. 6 Capitol riot, but investigation 'far from over'"

From the Washington Post, "Review of Jan. 6 cases finds judges give harsh lectures, lighter sentences: Judges have gone below prosecutors’ recommendations three-quarters of time, and below federal sentencing guidelines a little less than 40 percent":

Of more than 460 people charged with felonies, only 69 have been convicted and sentenced so far, mostly for assaulting police or obstructing Congress; all but four have received jail or prison time. The average prison sentence for a felony conviction so far is 33 months, according to a Washington Post database....

About half of the arrests so far have been for misdemeanors, and for those given actual jail time, the average sentence has been 48 days. But most of the misdemeanants have not received any jail time: most have received probation, home detention or halfway house time, or a fine. These defendants are typically rioters who entered the Capitol and didn’t engage with the police, but left a trail of social media posts and photos before, during and after Jan. 6.

If we include those who didn’t receive jail time among the misdemeanor sentences, the average jail time drops to 22 days. The number of defendants being held in jail before trial, or awaiting sentencing, is about 50, according to a list provided by the Justice Department....

For the 25 defendants sentenced so far for assaulting law enforcement, the average sentence has been more than 48 months — in line with the nationwide average for that offense in recent years, according to data from the U.S. Sentencing Commission. Former New York City police officer Thomas Webster received a 10-year term for fighting with an officer and helping breach the outer perimeter. There are still nearly 180 defendants whose assault cases are pending.

The most serious charge for those not accused of assaulting the police has been obstruction of an official proceeding. Only 28 people have been sentenced for obstruction or conspiracy to obstruct the certification of the electoral vote, receiving an average sentence of about 42 months....

The judges appointed by Democratic presidents have imposed jail or prison sentences in 61 percent of their cases, and probation in 18 percent of the cases, while judges appointed by Republican presidents have given jail or prison sentences in 48 percent of their cases, and probation in 34 percent of cases. In the remaining cases, judges have sentenced defendants to home detention or a halfway house, or imposed a fine. Judge Tanya Chutkan, an Obama appointee, has handled 22 sentencings and imposed incarceration in every one, but another Obama appointee, Judge Rudolph Contreras, has handled 16 sentencings and jailed only one defendant.

Judges Dabney Friedrich and Trevor N. McFadden, both Trump appointees, have given probation sentences to about half of their Jan. 6 defendants. McFadden is also the only judge to have acquitted a defendant at trial and the only judge to have imposed only a fine on a defendant.

Some highlights from Ohio's sweeping new criminal justice reform bill

From sentencing to prison reform to marijuana policy to record relief, Ohio has long been a state with all sort of dynamics developments across a range of criminal law and policy issues of great interest to me.  And, as this local article details, these dynamic realities continued in the Buckeye State at the end of 2022 and into 2023 as the Ohio General Assebly finally completed a long-in-development major criminal reform bill known as Senate Bill 288.  There is so much in the massive SB 288, I am still looking for an effective and complete summary.  But the press piece reviews some of the parts I wish to highlight here:

Gov. Mike DeWine on Tuesday signed into law an enormous criminal justice reform bill making it easier for Ohioans to adjust to life after their release, giving state officials wider latitude to release inmates early, reducing the consequences of minor marijuana offenses, and reducing underage drinking penalties, among dozens of other provisions.

The most high-profile part of the new law, added shortly before it passed the legislature, toughens Ohio’s distracted-driving laws. But the 1,000-page bill, which passed the legislature with overwhelming support, also makes the greatest changes to Ohio’s criminal code in years.

The new law, which takes effect in early April, was the product of nearly two years of work by state lawmakers and various agencies and groups. DeWine, before signing Senate Bill 288 during a Statehouse signing ceremony, said that while Ohioans might not agree with every part of the legislation, “everybody was heard” about their opinions. “I think legislators should be complimented on the fact that they reached out to prosecutors, that they reached out to defenders, that they reached out to law-enforcement agencies,” the governor said....

Two of the most important parts of SB288 will expand when people convicted of crimes can seek to have their criminal records sealed – in other words, kept private with limited exceptions – or expunged, meaning their record is destroyed altogether. Proponents argue that sealing and expunging helps to address widespread problems with former inmates getting housing, being offered a job, or securing a loan because of their criminal record.

Other parts of the new law will:

Allow prosecutors or city law directors to expunge thousands of low-level marijuana possession offenses, as well as ensure that arrests or convictions for possessing marijuana paraphernalia won’t appear on Ohioans’ criminal records.

Give the Department of Rehabilitation and Correction, the state’s prison agency, more power to decide when inmates should be granted an early release.

Set up a process for inmates to ask a judge for early release when the Ohio governor declares a state of emergency due to a pandemic or other public health crisis.

Allow inmates to shave more time off their sentences for participating in educational, job training, or drug treatment programs.

Expand Ohio’s “Good Samaritan” law that provides immunity from arrest or prosecution for people who seek medical assistance for an overdose – either on their own behalf or for someone else – as long as the person receiving that legal protection is referred to addiction treatment within 30 days....

Create the new offense of “strangulation,” which would range from a fifth-degree felony to a second-degree felony. Domestic-abuse advocates have worked for years to pass such a law, pointing to research indicating that victims who are strangled by their partner are more than seven times as likely to end up being murdered by their abuser....

Require a minimum five-year prison sentence for anyone convicted of “aggravated vehicular homicide” in cases where the victim is a firefighter or an emergency medical worker. The change was brought in response to the death of Cleveland firefighter Johnny Tetrick, who was killed during a hit-and-run along Interstate 90 last month.

Decriminalize fentanyl test strips, used to test substances for the opioid. Test strips are currently classified by Ohio law as “drug paraphernalia,” and people found to possess them can face up to 30 days in jail. Supporters of the move argue it will help reduce fatal overdoses in the state; critics say the strips can help drug users look for fentanyl, which was involved in 81% of Ohio overdose deaths in 2020, according to the Ohio Department of Health.

Quite a remarkable account of one January 6 rioter's sentencing story

The Washington Post has this very lengthy piece telling a remarkable story about the life and history of one of the January 6 rioters and where his sentencing fit in.  The piece is fully titled "Prison or mercy? A Jan. 6 rioter weighs his sins and confronts his fate. Eight years before he stormed the Capitol, Jake Peart acted with ‘unfathomable’ grace. A judge must decide if it matters." The long piece is worth the time, and here is part of its start:

Nearly 18 months had passed since he stormed the U.S. Capitol and sought to halt the inauguration of a duly elected president. Now the time had come for the federal government to pass judgment on Jake Peart.

The sentencing hearing was taking place via video, a necessity given the sheer number of defendants — more than 950 and counting — who, like Peart, had been charged with crimes related to the riot.

Alone in his living room and free from custody as he awaited sentencing, Peart listened as a federal prosecutor summarized his offense: The 47-year-old real estate agent, husband and father of five had blown past police officers being “attacked violently,” the blaring of alarms and the smell of tear gas emanating from the seat of American democracy. Once inside the Capitol, he had banged on a broken piece of furniture, yelling, “This is our house!”...

Peart was one of thousands of American citizens who on Jan. 6, 2021, sought to overturn the 2020 election on behalf of an angry and defeated President Donald Trump. Collectively, the mob’s actions were “egregious, outrageous, dangerous,” the judge told Peart, calling them “a direct attack on the rule of law and democracy as we know it.”

But each of the insurrectionists in the Capitol that day was also an individual. And so before the judge delivered his decision, he described a letter in Peart’s case file from a woman who in 2013 was driving home drunk from a bar when she struck and killed Peart’s 28-year-old sister. “A truly remarkable letter,” the judge called it.

In it, Andrea Milholm Jung described how the “mercy and love” that Peart had shown her after the accident and while she was in prison had helped her to find redemption. “Put yourself in Mr. Peart’s shoes and ask yourself if you would do the same,” she wrote to the judge. “It is a question I ask myself every single day.”

Peart sat quietly in his leather chair, his Bible at his side, awaiting his fate. From his window he could see the soaring peaks of southern Utah’s red-rock desert mountains.

The entire hearing had lasted a little more than an hour and now boiled down to just a few difficult questions: Was Peart truly repentant? Did he grasp the severity of his crime? Did he deserve prison or mercy?

Council on Criminal Justice releases "Reflections on Long Prison Sentences: A Conversation with Crime Survivors, Formerly Incarcerated People, and Family Members"

In this post last year, I noted the formation of the Council of Criminal Justice's impressive Task Force on Long Sentences.  Today,  CCJ released its latest publication from the Task Force, titled "Reflections on Long Prison Sentences: A Conversation with Crime Survivors, Formerly Incarcerated People, and Family Members."  This full 20-page report is worth a full read, and here are the document's "Key Takeaways":

While participants shared their experiences with long sentences from different perspectives, the views expressed reflected numerous common themes. These included:

+ Prison sentences-including long sentences-should serve the purpose of rehabilitation, a goal that many participants said was often impeded by a lack of programming in prisons.

+ Long sentences are not synonymous with accountability; rather, accountability comes from taking responsibility for the harm caused and making amends through personal changes.

+ People serving long sentences should have the opportunity to seek reconsideration of that sentence after a period of time through a process that bases release decisions, in part, on the cognitive, behavioral, and/or emotional growth individuals make while incarcerated.

+ Victims and survivors of crime should have a role in any sentencing reconsideration.

Participants made several specific recommendations in line with these themes.  These included:

+ Provide programming and counseling to all individuals serving long sentences

+ Permit crime victims and survivors to request specific programming for the defendant in their case to complete while incarcerated, as part of pre-sentencing investigation reports

+ Provide victims and survivors, upon request, with information regarding expressions of remorse, educational or skills training, and other personal changes made by incarcerated individuals in their cases

+ In cases of sentencing reconsideration, provide victims and survivors general information about supports available to the incarcerated person post-release

+ Provide more opportunities for victim-offender dialogue throughout long prison sentences

+ Enhance transparency and communication during criminal justice processes and create mechanisms for quickly referring victims and survivors to community-based counseling and other therapeutic services

+ Give judges more complete contextual information about the background of the person being sentenced or resentenced, including facts about the impact of the crime(s) on victims and survivors

+ Provide earlier intervention and healing to at-risk children to prevent future crime, sparing individuals, families, and communities from the pain of violence and from the loss of young persons to long prison sentences

"Death Penalty Abolition, the Right to Life, and Necessity"

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

One prominent argument in international law and religious thought for abolishing capital punishment is that it violates individuals’ right to life.  Notably, this right-to-life argument emerged from normative and legal frameworks that recognize deadly force against aggressors as justified when necessary to stop their unjust threat of grave harm.  Can capital punishment be necessary in this sense — and thus justified defensive killing?  If so, the right-to-life argument would have to admit certain exceptions where executions are justified.  Drawing on work by Hugo Bedau, I identify a thought experiment where executions are justified defensive killing but explain why they cannot be in our world.  A state’s obligations to its prisoners include the obligation to use nonlethal incapacitation (ONI), which applies as long as prisoners pose no imminent threat.  ONI precludes executions for reasons of future dangerousness.  By subjecting the right-to-life argument to closer scrutiny, this article ultimately places it on firmer ground.

You be the judge: what federal sentence for Varsity Blues college admission scandal mastermind Rick Singer?

Wednesday afternoon brings a high-profile federal sentencing in Boston federal court, and I'd be interested in predictions (and/or recommendations) as to the sentence to be given to the man behind the Varsity Blues college admission scandal.  This lengthy NPR piece provides a preview, and here are excerpts:

The mastermind of the Varsity Blues college admissions scandal, Rick Singer, is set to be sentenced Wednesday in Boston for a scheme that federal prosecutors say is "staggering in its scope and breathtaking in its audacity." Prosecutors want him sentenced to six years in prison, while Singer is asking the judge to let him off with little or no prison time.

His sentencing is the capstone in the years-long investigation and prosecution of Singer and more than 50 co-conspirators, and puts the focus back on what has and has not changed since the scandal broke open in March 2019.

Singer, 62, pleaded guilty to raking in some $25 million by selling what he liked to call "a side door" into highly selective universities such as Yale, Georgetown and USC to dozens of clients, from actresses Felicity Huffman and Lori Loughlin to business titans and big-shot lawyers.  "We help the wealthiest families in the U.S. get their kids in school," Singer bragged as he pitched one of his clients on a call recorded by the FBI. "They want guarantees. They want this thing done."

His scheme involved, for instance, bribing college coaches to take students as athletic recruits, even if they were mediocre or had never even played the sport.  Singer would just make up a totally fake resume, complete with a student's face photoshopped onto an image of a real athlete.  His menu of cheating services also included fixing students' wrong answers on their college admissions tests or having someone take the test in their place....

Of the more than 50 parents, coaches and others caught up in the scheme, more than a third were sentenced to three months or less in prison.  Roughly a quarter of the defendants got no time at all behind bars, including five people who cooperated with prosecutors.

Singer is hoping his cooperation will earn him leniency, too. "He believes he will get some time, but I don't think he believes it will be a lot of time," says Bill Blankenship, who lives next door to Singer in a mobile home park in St. Petersburg, Fla.... "I have lost everything," Singer wrote in court filings pleading for leniency. He says he's "woken up every day feeling shame, remorse and regret."

"He is already serving a life sentence of sorts," his lawyers say, "vilified by the public, and ostracized, living an isolated, lonely life," and having lost "the trust and respect of family, friends."  Despite pleading guilty to conspiracy to commit racketeering, conspiracy to commit money laundering, obstruction of justice and conspiracy to defraud the United States, Singer's lawyers have asked the court to sentence him to home confinement instead of prison.  Or if Singer must serve time, his lawyers suggest, he should get no more than six months behind bars.

The lawyers also say Singer deserves credit for his "crucial" cooperation, helping prosecutors nab his former clients. He secretly recorded hundreds of phone calls with some 30 co-conspirators, methodically and craftily getting them to incriminate themselves by acknowledging the payments and bribes they paid as the tape rolled.  His ruse was to tell them that his fake charitable foundation that he used to launder bribe money was being audited by the IRS....

"Prosecutors made a deal with the devil in this case, but they always do," says former federal Judge Nancy Gertner. What makes this case unusual is that the deal is not with low-level co-conspirators ratting out the kingpin, it's with the kingpin himself, flipping on his former clients.  "I think this is an extraordinarily difficult sentencing," Gertner says, "because on the one hand, Singer's cooperation is enormously important. And you get people to cooperate by telling them they will get a benefit in their sentencing."  On the other hand, she notes, as the kingpin who masterminded the whole scheme and used more than $15 million of his clients' bribe money for his own benefit, Singer would be considered "more culpable than anyone — his cooperation notwithstanding."

Indeed, prosecutors argue Singer is most culpable "by leaps and bounds" and his sentence must be longer than the longest one to date, which was the two-and-a-half years imposed on former Georgetown University tennis coach Gordon Ernst, who accepted nearly $3.5 million in bribes in cases of at least 22 students.

Prosecutors also argue that while Singer's cooperation was "singularly valuable," it was also "singularly problematic." After he was arrested for his con, Singer actually tried to con prosecutors, too.  At the same time he was vowing to cooperate to nab other targets, he tipped off at least six co-conspirators, warning they were under investigation and that if they got a call from him, they should assume they were being recorded and deny any wrongdoing.

It's partly why prosecutors are not recommending more of a reward for Singer's cooperation.  The six years they're calling for is just slightly below the range of 6 ½ to 8 years set by the sentencing guidelines that the court has accepted.

I will likely be on a plane when this interesting sentencing takes place, so I am not sure when I will get a chance to report on the outcome.  But I am inclined to predict that the judge here will land on a prison sentence between the recommendations of the parties, probably in the three- or four-year range.

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 
• 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 
• 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 
• Trial penalties lead to longest (but still not so long) sentences for two Varsity Blues defendants 
• Longest prison sentence yet in Varisity Blues case, 30 months, given to Georgetown tennis coach

UPDATE: This CNN report on the sentencing, headlined "College admissions scam mastermind sentenced to 3.5 years in federal prison," documents that my prediction was actually pretty sound.  (If only there was a fantasy sentencing league instead of the sports leagues in which my outcome predictions fare much worse.)

"The Truth About Truth in Sentencing: Tennessee’s Experience"

The title of this post is the title of this terrific new article in the Tennessee Bar Journal authored by David Raybin.  I recommend the very readable piece in full, and here are excerpts from the introduction and conclusion:

The truth is that the crime rate does not drive a state’s prison population — policy choices do. Last year the Tennessee legislature enacted a “Truth in Sentencing” scheme where most penitentiary-bound prisoners will now serve between 85% to 100% of their time with no parole. The increases are staggering: a burglary conviction can now net nine years in prison where under prior law parole could occur in about three years.

Gov. Bill Lee reluctantly allowed this legislation to become law without his signature, saying, “Widespread evidence suggests that this policy will result in more victims, higher recidivism, increased crime and prison overcrowding, all with an increased cost to taxpayers.” At an eventual cost of $25 million a year, the proponent of the legislation, Speaker of the House Cameron Sexton replied, “If we need to build more prisons, we can.”

Recent, horrid homicides in Memphis prompted the legislature to propose even more amendments to our criminal statutes. These would abolish probation for many crimes and remove parole for other offenses. Soon virtually all offenses will be punished by mandatory incarceration with little or no alternative sentencing.5 Over the last 200 years, Tennessee has experimented with several sentencing systems which have met with varying degrees of success and failure. This state’s problems are not unique to this decade or even this century....

When viewed from the perspective of 200 years, the most obvious conclusion is that our sentencing structure has been dramatically altered with increasing frequency in recent years.  The original penitentiary law of 1829 remained substantially unchanged for 84 years until the enactment of the indeterminate sentence law in 1913.

It was another 60 years before there were any major modifications.  These changes, which occurred in 1973, were themselves altered less than six years later by the enactment of the Class X Felony Law.  Three years later the legislature passed the 1982 Sentencing Reform Act.  In another three years the legislature created the “safety valve.”  Four years later, in 1989, a new sentencing law was enacted.  In less than five years the legislature was considering yet another revision under the label of “truth in sentencing.” And then began 25 years of ever-increasing sentences for dozens of criminal offenses.  The 2022 Truth in Sentencing law was the final — and perhaps fatal — conclusion to this process.

Since 1970, the total jail population has increased 681%. The cost of the penitentiary and jail system is staggering: a billion dollars a year. Counting those in our county jails, Tennessee now incarcerates approximately the same number of people as does the entire continent of Australia, which has four times the population.  In Tennessee, African American people constitute 18% of state residents, but 36% of people in jail and 42% of people in prison....

Although our sentencing structures have been often altered, the statutory length of sentences, as set forth by current law, is not that different from those statutes first enacted in 1829.  In 1829, involuntary manslaughter was punished from one to five years. Today it is a very similar at one to six years. In 1829, the punishment for burglary of a dwelling was three to 10 years; today, for one with no record, it is three to six years.  The 1829 law was enacted to replace the previous practice of corporal punishment consisting of branding and whipping people. What may have been a valid term of imprisonment in 1829 may no longer be appropriate in 2022.  Perhaps we should revisit the length of our sentences.

We have commissioners of education and commissioners of roads, but the commissioner of correction only houses prisoners and has no impact on who goes into his or her penitentiary system.  I suggest that we do what other states and the federal government have done.  I suggest that we do what we did in Tennessee between 1986 and 1995.  We should have a full-time sentencing commission made up of professionals in the criminal justice system with judges, defense lawyers, prosecutors and citizens such as we had before.  Perhaps we should add an ex-offender or two to give us some perspective. We need that.

A sentencing commission is also a tool for discovering problems before they get out of hand.  A full-time sentencing commission is the only solution to making meaningful progress.  We cannot have committees or commissions who come together every 20 years to fix the system.  We advocate routine maintenance on our cars, so why not our criminal justice system?

Timely new CRS review of US Sentencing Commission's guideline amendment process and plans

A helpful colleague alerted me to a new Congressional Research Service “Legal Sidebar” which efficiently covers the US Sentencing Commission's history, its amendments process, and some of its stated priorities for 2022-23 guideline amendments.  This five-page report is titled "Back in Action, the U.S. Sentencing Commission to Resolve Circuit Splits on Controlled Substances and Sentencing Reductions," and it starts this way:

In 1984, Congress revolutionized federal sentencing.  That year, Congress established the U.S. Sentencing Commission (the Commission) as an independent agency within the judicial branch and directed it to promulgate the first-ever federal sentencing guidelines.  In 1987, the Commission published the inaugural U.S. Sentencing Guidelines manual (the Guidelines), which serves as the starting point and anchor for every federal sentence imposed across the country. Over 1.9 million defendants have been sentenced under the Guidelines since their inception.

Congress also required the Commission to “review and revise” the Guidelines, which it has done periodically.  Between 2019 and July 2022, however, the Commission lacked a quorum and therefore the ability to propose amendments to the Guidelines. In August 2022, the Senate confirmed a full slate of seven new commissioners, restoring the Commission’s quorum and thus enabling the Commission to initiate its amendments process.  As a part of that process, in November 2022, the Commission published a list of final priorities for analysis and possible action.  According to a timetable fixed in statute, should the Commission study a priority and approve prospective changes to the Guidelines, the Commission will submit the proposed amendments to Congress by May 1, 2023.  Congress then has until November 1, 2023, to affirmatively reject any such amendments, or the amendments will take effect.

This Sidebar addresses one of the Commission’s listed priorities: the resolution of two conflicts among the federal appeals courts involving the Guidelines.  The first conflict relates to whether, for a “controlled substance offense” to trigger the Guidelines’ “career offender” recidivist enhancement, the underlying controlled substance must be prohibited by the federal Controlled Substances Act (CSA) or whether a controlled substance prohibited only under state law can also lead to the career offender enhancement.  The second conflict pertains to whether federal prosecutors may withhold a sentencing reduction from a federal defendant because the defendant raised a pre-trial Fourth Amendment challenge to the government’s evidence.

Missouri scheduled to execute transgender woman

The first US execution in a new year is always notable, but the execution that Missouri has scheduled for Tuesday, January 3 is noteworthy for a variety of reasons.  The headline of this AP piece provides the basics: "Transgender woman’s scheduled execution would be US first."  Here are more of the details:

Unless Missouri Gov. Mike Parson grants clemency, Amber McLaughlin, 49, will become the first transgender woman executed in the U.S.  She is scheduled to die by injection Tuesday for killing a former girlfriend in 2003.  McLaughlin’s attorney, Larry Komp, said there are no court appeals pending.

The clemency request focuses on several issues, including McLaughlin’s traumatic childhood and mental health issues, which the jury never heard in her trial.  A foster parent rubbed feces in her face when she was a toddler and her adoptive father used a stun gun on her, according to the clemency petition.  It says she suffers from depression and attempted suicide multiple times.

The petition also includes reports citing a diagnosis of gender dysphoria, a condition that causes anguish and other symptoms as a result of a disparity between a person’s gender identity and their assigned sex at birth.  “We think Amber has demonstrated incredible courage because I can tell you there’s a lot of hate when it comes to that issue,” her attorney, Larry Komp, said Monday.  But, he said, McLaughlin’s sexual identity is “not the main focus” of the clemency request.

Parson’s spokesperson, Kelli Jones, said the review process for the clemency request is still underway.

There is no known case of a transgender inmate being executed in the U.S. before, according to the anti-execution Death Penalty Information Center.  A friend in prison says she saw McLaughlin’s personality blossom during her gender transition.

Before transitioning, McLaughlin was in a relationship with girlfriend Beverly Guenther.  McLaughlin would show up at the suburban St. Louis office where the 45-year-old Guenther worked, sometimes hiding inside the building, according to court records.  Guenther obtained a restraining order, and police officers occasionally escorted her to her car after work.

Guenther’s neighbors called police the night of Nov. 20, 2003, when she failed to return home. Officers went to the office building, where they found a broken knife handle near her car and a trail of blood.  A day later, McLaughlin led police to a location near the Mississippi River in St. Louis, where the body had been dumped.

McLaughlin was convicted of first-degree murder in 2006.  A judge sentenced McLaughlin to death after a jury deadlocked on the sentence.  A court in 2016 ordered a new sentencing hearing, but a federal appeals court panel reinstated the death penalty in 2021....

The only woman ever executed in Missouri was Bonnie B. Heady, put to death on Dec. 18, 1953, for kidnapping and killing a 6-year-old boy.  Heady was executed in the gas chamber, side by side with the other kidnapper and killer, Carl Austin Hall.

Nationally, 18 people were executed in 2022, including two in Missouri.

Though McLaughlin status as potentially the first transgender woman to be executed is what is making headlines, the fact she was sentenced to death by a judge rather than a jury is also noteworthy.

UPDATE: As detailed in this CNN piece, Missouri's Governor denied McLaughlin's clemency request and the first execution in the US in 2023 was completed in the early evening of January 3:

McLaughlin, 49, and her attorneys had petitioned Republican Gov. Mike Parson for clemency, asking him to commute her death sentence. Aside from the fact a jury could not agree on the death penalty, they say, McLaughlin has shown genuine remorse and has struggled with an intellectual disability, mental health issues and a history of childhood trauma.

But in a statement Tuesday, Parson’s office announced the execution would move forward as planned. The family and loved ones of her victim, Beverly Guenther, “deserve peace,” the statement said. “The State of Missouri will carry out McLaughlin’s sentence according to the Court’s order,” Parson said, “and deliver justice.”...

“McLaughlin was pronounced dead at 6:51 p.m.,” the Missouri Department of Corrections said in a written statement. A spokesperson did not say if McLaughlin had a final statement.

Gearing up for a new federal sentencing year that might finally bring some new guideline amendments

Branch by branch, there are a lot of federal sentencing stories to watch as we start a new year.  The last Congress made (halting) progress on some statutory sentencing reforms, but nothing major made it all the way to the President's desk.  With the House of Representatives in GOP control in the new Congress, legislative dynamics have changed in ways that might diminish the prospects for any big reforms in 2023.  But with murder rates ticking down a bit in 2022 and crime narratives seemingly not having a huge midterm poitical impact, perhaps some modest consgressional reform could still happen in the coming year.

On the executive front, I will be watching closely for early impacts of Attorney General Garland's new charging and sentencing memos (basics here).  It will be particular interesting to see the effect of AG Garland's instructions to federal prosecutors to "promote the equivalent treatment of crack and powder cocaine offenses."  And, with Prez Biden having used his clemency powers a few times in 2022 (with grants in April, October and December), maybe executive grace as well as prosecutorial discretion will continue to impact federal sentencing realities in the coming year.

The judicial branch is the arena in which I am expecting the most action in this new year.  Focusing the courts, we may see in the coming weeks if the Supreme Court is finally ready to address acquitted conduct sentencing enhancments (details here).  Other notable sentencing issues may also make their way to the SCOTUS docket because circuits are split on important topics like deference to the guidelines and application of a key part of the FIRST STEP Act.  Other notable sentencing issues are sure to keep gurgling in district and circuit courts in the year ahead.

But I can most confidently predict judicial branch sentencing action in 2023 because the US Sentencing Commission, which is located in that branch, is finally now fully loaded and is hard at work on potential guidelines reforms.  The Commission has now officially announced that it will have a public meeting on January 12, 2023 with an agenda to include "Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment."  Though we should not expect the USSC to advance amendments on all the topics mentioned in its ambitious list of priorities, we are sure to get some notable and impactful proposals to start the year from the Commission.

Notably, though the USSC's work is primarily focused on the sentencing guidelines, the agency can have real impact on other aspects of the justice system.  This new Forbes article by Walter Palvo, headlined "A Federal Public Defender Challenges U.S. Sentencing Commission To Help Fix The Bureau Of Prisons," highlights Steve Sady's new article in the Federal Sentencing Reporter urging the USSC to "make recommendations regarding the Bureau of Prisons’ execution of Guidelines sentences."  Here is an excerpt from the Forbes piece:

I recently spoke to Stephen Sady, Chief Deputy Federal Public Defender for the District of Oregon about a paper he wrote that was critical of the BOP but stated that the United States Sentencing Commission (USSC) could encourage the BOP to balance long guideline sentences by implementing ameliorative statutes that reduce actual prison time. As Sady told me, “The BOP has failed to adequately implement critical legislation to improve the conditions of people in prison.”

As Sady points out, even as Congress has repeatedly provided options and directives that would reduce the time defendants spend in prison, the BOP has failed to implement the full scope of the available authority, resulting in expensive and pointless over-incarceration. The most important of these can be put into six categories, 1) Increase the availability of community corrections commensurate with repeated statutory directives for greater use of residential reentry centers and home confinement (18 U.S.C. § 3624(c)), 2) Expand eligibility and availability of sentence reductions under Residential Drug Abuse Program (RDAP), 3) Eliminate computation rules that create longer sentences, 4) Implement broader statutory and guideline standards to file compassionate release motions any time extraordinary and compelling reasons exist, 5) Revive the boot camp program to provide nonviolent offenders sentence reductions and expanded community corrections and 6) Fully implement the First Step Act’s earned time credit program (18 U.S.C. §§ 3632(d) and 3624(g)). No new legislation would be required for any of these reforms. “It’s a pragmatic approach,” Sady said, “that uses the laws already in place to do what the BOP should already be doing. This is not a stretch.”

Interesting times as we start a new year.

Another year-end report from the Chief Justice with a few federal criminal caseload highlights

The Chief Justice of the United States always closes out a calendar year by releasing a year-end report on the federal judiciary, and that report typically includes some notable federal criminal justice caseload data.  Chief Justice John G. Roberts' 2022 version of the year end report can be found at this link, and here are some data excerpts that might interesting federal criminal justice fans:

In the regional courts of appeals, filings fell six percent from 44,546 to 41,839 in FY 2022.  This represents a 14 percent drop from FY 2019, the last full year prior to the COVID-19 pandemic.  Total civil appeals were down five percent from the prior year to 22,181.  Criminal appeals were down six percent from the prior year to 9,973.... Prisoner petitions accounted for 22 percent of appeals filings (a total of 9,401), and 86 percent of prisoner petitions were filed pro se, compared with 34 percent of other civil filings....

The federal district courts docketed 68,315 criminal defendant filings in FY 2022, eight percent fewer than the prior year. This represents a 26 percent drop from FY 2019.  The largest categories of criminal defendant filings involved drug offenses, which decreased 15 percent to 19,589, and immigration offenses, which decreased one percent to 19,148....

A total of 122,872 persons were under post-conviction supervision on September 30, 2022, an increase of less than one percent from the prior year and a five percent decrease compared to FY 2019.  Of that number, 109,781 were serving terms of supervised release after leaving correctional institutions, an increase of one percent.  Cases activated in the pretrial services system, including pretrial diversions, fell four percent to 73,690. Pretrial case activations were 32 percent lower than in FY 2019.