Sentencing Law and Policy

US Sentencing Commission posts over 450 pages of public comment on proposed priorities

As reported here back in mid-June, the US Sentencing Commission through this Federal Register Notice provided "notice identifying the possible policy priorities that the Commission expects to focus on during the amendment cycle ending May 1, 2024."  That notice provided that public comment on these possible policy priorities could be submitted to the Commission on or before August 1, 2023.  There was clearly a whole lot of public comment submitted, as the Commission has now posted here a "Sample of Public Comment Received on Proposed Priorities" that appearing in this 470-page pdf.  Here i how the Commission explains this big document:

The Commission reviews and catalogs all public comment submissions for future reference and official recordkeeping purposes. A representative sample of public comment is carefully selected, redacted, and posted online to provide the public with the kind of information considered by the Commissioners during their deliberations.

Here is how the Commission organizes the comments thematically on its webpage:

View submissions by proposed priority:

1. Bureau of Prisons Practices
2. Alternatives to Incarceration and Court Diversion Programs
3. Simplification/Structural Reform
4. Case Law Relating to Guideline Commentary
5. Career Offender Guideline/Categorical Approach
6. Youthful Offenders
7. Crime Legislation
8. Circuit Conflicts
9. Miscellaneous Guideline Application Issues
10. Research Topics
11. Other Suggested Priorities

A couple prior related posts:

• US Sentencing Commission releases fascinating "possible policy priorities that the Commission expects to focus on" in next amendment cycle 
• US Sentencing Commission notices hearing to vote on policy priorities and retroactivity of criminal history amendments 

"Beyond Bars: A Path Forward from 50 Years of Mass Incarceration in the United States"

The title of this post is the title of this new (open access) book editted by Kristen Budd, David Lane, Glenn Muschert and Jason Smith. Here is how it is described:  

The year 2023 marks 50 years of mass incarceration in the United States.  This timely volume highlights and addresses pressing social problems associated with the U.S.’s heavy reliance on mass imprisonment.  In an atmosphere of charged political debate, including “tough on crime” rhetoric, the editors bring together scholars and experts in the criminal justice field to provide the most up-to-date science on mass incarceration and its ramifications on justice-impacted people and our communities.

This book offers practical solutions for advocates, policy and lawmakers, and the wider public for addressing mass incarceration and its effects to create a more just, fair and safer society.

The Table of Contents lists 10 substantive chapters in this text, and here are just a few of the many chapters that may be of particular interest to sentencing fans:

Mass incarceration’s lifetime guarantee by Ashley Nellis

Mass incarceration and the collateral problems of parole by Kimberly D. Richman

The end of mass incarceration: opportunities for reform by Francis T. Cullen, Justin T. Pickett, and Cheryl Lero Jonson

The final chapter of this book, authored by Cullen et al., develops the thesis that the "era of mass incarceration has ended," and it concludes with this paragraph:

In closing, historical turning points are not always apparent to those in their midst but become evident only in retrospect some years later.  Thus, we trust we have been convincing in showing that mass incarceration has ended — both in terms of the growth of prison populations and the punitive logic that fueled the movement.  This good news, however, will be squandered if a collateral movement to transform American corrections lays dormant.  However, a shortcut may be possible.  It is insufficient to identify past mistakes; future choices must occur.  The opportunity for change is palpable.  Are we up to creating a new era of reform — a humanitarian revolution in corrections?

After another federal indictment, another set of federal sentencing issues for former Prez Trump

It is barely 48 hours since former Prez Donald Trump was formally indicted on four new federal charges and only a few hours since his "not guilty" plea.  But, as revealed by the pieces below, there has still been plenty of time for various outlets to start talking up some sentencing issues:

From the AP, "The judge assigned to Trump’s Jan. 6 case is a tough punisher of Capitol rioters"

From Newsweek, "Donald Trump Conviction Could Be 'Death Sentence'"

From Politico, "641 years behind bars? No, but Trump’s risk of prison is real."

From Set for Sentencing, "The 3rd Trump Indictment (Sentencing Guidelines): Everything Nowhere All at Once"

From the Washington Post, "Is Trump going to jail? Here’s how much prison time he could face."

For all sorts of reasons, I am quite disinclined to get too focused on potential guideline ranges given that the sentencing of an elderly former president raises so many unique and significant 3553(a) sentencing issues.  And, of course, we are a long way from any convictions, let alone sentencings.  But, as always, folks are more than welcome to provide sentencing takes (or other takes) in the comments.

Some prior related post:

• Is it too early to try to calculate former Prez Trump's possible federal sentencing guideline range? 
• Notable general and specific accountings of former Prez Trump's federal sentencing prospects
• Noticing one count in the latest federal indictment of former Prez Donald Trump could carry the death penalty 

Florida complete its fifth execution of 2023, more than its total in prior five years

As reported in this AP piece, a "Florida man who recently dropped all legal appeals was executed Thursday for the 1988 murder of a woman who was sexually assaulted, killed with a hammer and then set on fire in her own bed." Here is more:

James Phillip Barnes, 61, was pronounced dead at 6:13 p.m. following a lethal injection at Florida State Prison in Starke.... The 61-year-old inmate was sentenced to death for the murder of nurse Patricia “Patsy” Miller. It was the fifth execution in Florida this year....

Barnes was serving a life sentence for the 1997 strangulation of his wife, 44-year-old Linda Barnes, when he wrote letters in 2005 to a state prosecutor claiming responsibility for killing Miller years earlier at her condominium in Melbourne on Florida’s east coast.

Barnes represented himself in court hearings where he offered no defense, pleaded guilty to killing Miller and did not attempt to seek a life sentence rather than the death penalty. Miller, who was 41 when Barnes killed her on April 20, 1988, had some previous unspecified negative interactions with him, according to a jailhouse interview he gave German film director Werner Herzog. “There were several events that happened (with Miller). I felt terribly humiliated, that’s all I can say,” Barnes said in the interview....

Barnes killed his wife in 1997 after she discovered that he was dealing drugs. Her body was found stuffed in a closet after she was strangled, court records show. Barnes has claimed to have killed at least two other people but has never been charged in those cases....

Though unusual, condemned inmates sometimes don’t pursue every legal avenue to avoid execution. The Death Penalty Information Center reports that about 150 such inmates have been put to death since the U.S. Supreme Court reaffirmed the death penalty as constitutional in 1976.

According to this DPIC page, Florida had no executions between 2020 and 2022, and only two each year in the prior two years.  The single-year record for executions in the Sunshine state is eight, though it seems no more executions are as of now yet scheduled in the state.  There are more than 300 people on the state's death row, though I am un sure how many have exhausted their appeals.

Sentencing Project releases "Ending Mass Incarceration: Safety Beyond Sentencing"

The Sentencing Project released this new ten-page report titled "Ending Mass Incarceration: Safety Beyond Sentencing."  Here is how it gets started

After 50 years of mass incarceration, the United States faces a reckoning.  While crime is far below its peak in the early 1990s, the country continues to struggle with an unacceptable amount of gun violence.  Meanwhile, the drug war harms too many Americans and has failed to prevent fatal overdoses from reaching an all-time high. A great imbalance in our national approach to public safety, one that relies too heavily on the criminal legal system, has produced excessive levels of punishment and a diversion of resources from investments that would strengthen the capacity of families and communities to address the circumstances that contribute to crime.

This report offers five recommendations for policymakers and community members to potentially improve safety without deepening our reliance on extreme sentencing:

• Implement community safety solutions – Community-based interventions such as violence interruption programs and changes to the built environment are a promising approach to decreasing violence without incarceration.

• Transform crisis response – Shifting responses to people in crisis away from police toward trained community-based responders has the potential to reduce police shootings, improve safety, and decrease incarceration.

• Reduce unnecessary justice involvement - Ending unnecessary police contact and court involvement by decriminalizing and diverting many offenses can improve safety.

• End the drug war – Shifting away from criminalizing people who use drugs toward public health solutions can improve public health and safety.

• Strengthen opportunities for youth – Interventions like summer employment opportunities and training youth in effective decision-making skills are a promising means of reducing criminal legal involvement.

Rounding up a number of notable recent state parole stories

Because the federal sentencing system formally abolished parole four decades ago, the modern stories of parole come from the states.  But there never seems to be a shortage of interesting parole-related matters coming from the states, and here is a quick round up of just a few such stories from all around the country that caught my eye recently:

From AL.com, "Alabama has granted parole to less than 8% of eligible prisoners"

From Bolts, "Prisons Grow in Mississippi as State Officials Cut Parole"

From CBS News Chicago, "Meek Mill on hand as Gov. Pritzker signs parole system overhaul bill"

From CBS News New York, "Preppy Killer" Robert Chambers released from prison after 15-year sentence in drug, assault case"

From Fox KVVU-TV, "Las Vegas police: Former Nevada parole officer accused of having sex with detainee"

From NPR, "Attorneys debate whether teen who killed 4 should be sentenced to life without parole"

From SB Nation, "How Mavericks helped Dorian Finney-Smith get his father paroled after 28 years in prison"

From WBUR, "Class-action discrimination suit filed against Massachusetts parole board"

"The 'New' Drug War"

The title of this post is the title of this notable new paper authored by Jennifer Oliva and Taleed El-Sabawi.  Here is its abstract:

American policymakers have long waged a costly, punitive, racist, and ineffective drug war that casts certain drug use as immoral and those that engage in it as deviant criminals.  The War on Drugs has been defined by a myopic focus on controlling the supply of drugs that are labeled as dangerous and addictive.  The decisions as to which drugs fall within these categories have neither been made by health agencies nor based on scientific evidence.  Instead, law enforcement agencies have been at the helm of the drug war advocating for and enforcing prohibition.

The drug war has been a failure on all counts. American taxpayers have invested trillions of dollars in the war, yet the United States continues to witness record-setting numbers of drug overdose deaths every year.  The drug war has been used as a tool to disenfranchise and incarcerate generations of individuals minoritized as Black.  Black Americans are nearly six times more likely to be incarcerated for drug-related offenses than their white counterparts, notwithstanding that substance use rates are comparable across those populations.

The public rhetoric concerning drug use has notably changed in recent years.  Many policymakers have replaced the punitive, law and order narratives of the Old Drug War with progressive, public health-oriented language, which suggests that the Old Drug War has ended.  We, however, caution against such a conclusion.  This paper examines three categories of laws and policies that attend to individuals who use drugs under our country’s new, and purportedly public health-centric, approach: (1) laws that increase surveillance of certain drugs or those who use them; (2) the criminalization and civil punishment of the symptoms or behaviors related to drug use; and (3) laws that decrease access to treatment and harm reduction programs.

Our assessment of these policies demonstrates that the War on Drugs is not over.  It has merely been retooled, recalibrated, and reframed.  The “New” Drug War may be concealed with public health-promoting rhetoric, but it is largely an insidious re-entrenchment of the country’s longstanding, punitive approach to drug use.

Pittsburgh synagogue shooter sentenced to death by federal jury

As reported in this AP article, the "gunman who stormed a synagogue in the heart of Pittsburgh’s Jewish community and killed 11 worshippers will be sentenced to death for perpetrating the deadliest antisemitic attack in U.S. history, a jury decided Wednesday."  Here is more on the notable federal sentencing jury determination:

Robert Bowers spewed hatred of Jews and espoused white supremacist beliefs online before methodically planning and carrying out the 2018 massacre at the Tree of Life synagogue, where members of three congregations had gathered for Sabbath worship and study. Bowers, a truck driver from suburban Baldwin, also wounded two worshippers and five responding police officers.

The same federal jury that convicted the 50-year-old Bowers on 63 criminal counts recommended Wednesday that he be put to death for an attack whose impacts continue to reverberate nearly five years later.  He showed little reaction as the sentence was announced, briefly acknowledging his legal team and family as he was led from the courtroom.  A judge will formally impose the sentence later.

Jurors were unanimous in finding that Bowers’ attack was motivated by his hatred of Jews, and that he chose Tree of Life for its location in one the largest and most historic Jewish communities in the U.S. so that he could “maximize the devastation, amplify the harm of his crimes, and instill fear within the local, national, and international Jewish communities.” They also found that Bowers lacked remorse....

The verdict came after a lengthy trial in which jurors heard in chilling detail how Bowers reloaded at least twice, stepped over the bloodied bodies of his victims to look for more people to shoot, and surrendered only when he ran out of ammunition.  In the sentencing phase, grieving family members told the jury about the lives that Bowers took — elderly people and intellectually disabled brothers among them — and the unrelenting pain of their loss. Survivors testified about their own lasting pain, both physical and emotional.

Through it all, Bowers showed little reaction to the proceeding that would decide his fate — typically looking down at papers or screens at the defense table — though he could be seen conversing at length with his legal team during breaks.  He even told a psychiatrist that he thought the trial was helping to spread his antisemitic message.

It was the first federal death sentence imposed during the presidency of Joe Biden, who pledged during his 2020 campaign to end capital punishment.  Biden’s Justice Department has placed a moratorium on federal executions and has declined to authorize the death penalty in hundreds of new cases where it could apply.  But federal prosecutors said death was the appropriate punishment for Bowers, citing the vulnerability of his mainly elderly victims and his hate-based targeting of a religious community....

Bowers’ lawyers never contested his guilt, focusing their efforts on trying to save his life.  They presented evidence of a horrific childhood marked by trauma and neglect.  They also claimed Bowers had severe, untreated mental illness, saying he killed out of a delusional belief that Jews were helping to cause a genocide of white people.  The defense argued that schizophrenia and brain abnormalities made Bowers more susceptible to being influenced by the extremist content he found online.

The prosecution denied mental illness had anything to do with it, saying Bowers knew exactly what he was doing when he violated the sanctity of a house of worship by opening fire on terrified congregants with an AR-15 rifle and other weapons, shooting everyone he could find.

The jury sided with prosecutors, specifically rejecting most of the primary defense arguments for a life sentence, including that he has schizophrenia and that his delusions about Jewish people spurred the attack.  Jurors did find that his difficult childhood merited consideration, but gave more weight to the severity of the crimes....

Survivors and other affected by the attack will have another opportunity to address the court — and Bowers — when he is formally sentenced by the judge.

Prison Policy Initiative spotlights the "aging prison population"

The Prison Policy Initiative's by Emily Widra has produces this notable new briefing titled "The aging prison population: Causes, costs, and consequences." Here are some excerpts (click through for lots of helpful links and graphics):

New data from the Census Bureau reveals that the U.S. median age rose to a high of 38.9 years: an increase of three and half years in the last 23 years. The U.S. prison population is aging, too, and at a much faster rate than the nation as a whole — and older adults represent a growing portion of people who are arrested and incarcerated each year. The aging of the prison population is the result of a series of disastrous policy decisions in policing, sentencing, and reentry over roughly the last half-century. And while prisons and jails are unhealthy for people of all ages, older adults’ interactions with these systems are particularly dangerous, if not outright deadly....

According to the most recent available data on local jails across the U.S., from 2020 to 2021 — during the COVID-19 pandemic, which was particularly dangerous for older adults — the segment of the jail population aged 55 and older expanded by a greater proportion than any other age group, growing 24% compared to an average increase of 15% across all other age groups.

Meanwhile, older people make up five times as much of the prison population as they did three decades ago. From 1991 to 2021, the percentage of the state and federal prison population nationwide aged 55 or older swelled from 3% to a whopping 15%. This growth is seen even more acutely when looking at people serving life sentences: by 2020, 30% of people serving life sentences were at least 55 years old, with more than 61,400 older adults sentenced to die in prison....

State and federal sentencing policies from the 1970s to the 2000s resulted in what researchers have called “a prescription for an increase in older inmates: more prisoners, more prison beds, more lifers, and less parole.” State and federal laws enacted in this time period resulted in more incarcerated people serving longer sentences via policies that:

• Increased sentence lengths and established mandatory minimums,
• Mandated extremely long sentences for individuals convicted of three felony offenses (“three strikes” laws),
• Required people to serve upwards of 85% of their sentence in prison (“truth in sentencing” laws) before becoming parole eligible,
• Abolished parole,
• Reduced the allowed time earned for good conduct, and
• Instituted other “tough on crime” sentencing laws.

Longer and harsher sentences top the list of the most obvious mechanisms by which the national prison population exploded in the 1990s and 2000s, but they also created the problem of today’s aging prison population: many of the people who received these sentences are still behind bars now that they are twenty or thirty years older.

After a 6-3 SCOTUS vote to deny review, Missouri completes execution of child killer who claimed mentally incompetence

As reported in this AP piece, a "man who abducted a 6-year-old Missouri girl and beat her to death at an abandoned factory two decades ago was put to death Tuesday evening, shortly after the U.S. Supreme Court rejected a request to block the execution over arguments he was mentally incompetent." Here is more:

Johnny Johnson, 45, received a lethal injection dose of pentobarbital at a state prison in Bonne Terre and was pronounced dead at 6:33 p.m. CDT, authorities said.  He was convicted of the July 2002 killing of Casey Williamson in the St. Louis area suburb of Valley Park.

Johnson, who had schizophrenia, expressed remorse in a brief handwritten statement released by the Department of Corrections hours before being executed.... Among those witnessing Johnson’s execution were several members of the girl’s family and the former prosecutor and police investigator who handled his case.

The U.S. Supreme Court, with Justice Sonia Sotomayor and two other justices dissenting, rejected a late request to stay the execution. In recent appeals, Johnson’s attorneys have said the inmate has had delusions about the devil using his death to bring about the end of the world....  Former St. Louis County Prosecutor Bob McCulloch called the delusions “nonsense” and said Johnson inflicted “unspeakable horrors” upon Casey. “He’s got some issues — significant issues,” McCulloch said moments before witnessing the execution. But “he knew exactly what he was doing.”...

At Johnson’s trial, defense lawyers presented testimony showing their client — an ex-convict who had been released from a state psychiatric facility six months before the crime — had stopped taking his schizophrenia medication and was acting strangely in the days before the slaying.

In June, the Missouri Supreme Court denied an appeal seeking to block the execution on arguments that Johnson’s schizophrenia prevented him from understanding the link between his crime and the punishment.  A three-judge federal appeals court panel last week temporary halted execution plans, but the full 8th U.S. Circuit Court of Appeals reinstated it. Johnson’s attorneys then filed appeals to the U.S. Supreme Court centered around his competency to be executed.

Gov. Mike Parson on Monday denied a request to reduce Johnson’s sentence to life in prison.  The clemency petition by Johnson’s attorneys said Casey’s father, Ernie Williamson, opposed the death penalty.  But Casey’s great aunt, Della Steele, wrote an emotional plea to the governor urging the execution be carried out to “send the message that it is not okay to terrorize and murder a child.”  Steele said grief from Casey’s death led to destructive effects among other family members....

The execution was the 16th in the U.S. this year, including three previously in Missouri, five in Texas, four in Florida, two in Oklahoma and one in Alabama.

This ten-page dissent from the denial of a stay and from the denial of certiorari, authored by Justice Sotomayor and joined by Justices Kagan and Jackson, includes these passages at its outset and end:

The Supreme Court of Missouri, over a noted dissent, denied Johnson a competency hearing because it concluded that he had not made a substantial threshold showing of insanity.  That was error.  A federal District Court then denied Johnson habeas relief.  A panel of the Eighth Circuit stayed his execution and issued a certificate of appealability (COA), which would have permitted his competency claim to be fully briefed and argued on the merits.  But the en banc Eighth Circuit, over a dissent from three judges, vacated that stay and declined to issue a COA because it concluded that no reasonable jurist could disagree with the District Court.  That too was error.  Because reasonable jurists could, did, and still debate whether the District Court should have granted habeas relief, the Eighth Circuit should have authorized an appeal.  I would grant the petition for a writ of certiorari, summarily vacate the order of the Eighth Circuit denying a COA, and grant Johnson’s request for a stay of execution pending appeal....

The Court today paves the way to execute a man with documented mental illness before any court meaningfully investigates his competency to be executed.  There is no moral victory in executing someone who believes Satan is killing him to bring about the end of the world.  Reasonable jurists have already disagreed on Johnson’s entitlement to habeas relief.  He deserves a hearing where a court can finally determine whether his execution violates the Eighth Amendment.  Instead, this Court rushes to finality, bypassing fundamental procedural and substantive protections.  I respectfully dissent.

Noticing one count in the latest federal indictment of former Prez Donald Trump could carry the death penalty

In many cases, even high-profile ones, I tend to be disinclined to focus too much on a defendant's sentencing prospects until a plea or a jury conviction seems forthcoming.  But with historic and repeated indictments of a former President who is also a front-running presidential candidate, it is hard not to talk about sentencing possibilities as soon as there is an actual indictment.  And, via an email tonight on the CrimProf listserve, Professor Jack Chin flagged a particularly interesting added sentencing element flowing from this latest indictment of former Prez Trump:

So one of the offenses Trump was charged with today carries a possible death sentence.  The NYT reports that seven people died in connection with the January 6 riots, so the conspiracy against rights is death eligible.  I assume a death notice will not be filed, and oppose the death penalty in all cases myself, but, if one supports the death penalty in principle, would seven be enough?

18 USC 241:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

Big new report examines developing "hybrid justice systems" for offenders between 18 and 25

I tend to looks at the development of juvenile justice systems as a kind of sentencing innovation as jurisdictions decided the purposes and processes of punishment should be different for juvenile offenders.  In turn, I also think sentencing concerns are a big part of the development of new "hybrid justice systems" developed for young (or emerging) adults, though I have not followed these developments all those closely.  But we can all catch up on these trends through this huge new report emerging from Columbia University titled "Time for Change: A National Scan and Analysis of Hybrid Justice Systems for Emerging Adults." 

The full report, authored by Selen Siringil Perker and Lael E. H. Chester, is "the first in the nation to systematically document the existence of an emerging adult jurisdiction — hybrid systems (also known as 'youthful offender laws') that create a distinct path for emerging adults (ages 18-25) by lessening some of the harm imposed by the adult system and extending some of the rehabilitative opportunities of the juvenile system to support the healthy transition to adulthood."  The extended foreword and executive summary can be found at this link, and here is an excerpt:

Our national scan revealed seven jurisdictions that have hybrid systems for emerging adults: Alabama, District of Columbia, Florida, Michigan, New York, South Carolina, and Vermont.  After conducting the scan, we analyzed the key provisions of each of these hybrid statutes, reviewed the existing, publicly available (but scarce) data on system-involved emerging adults, and conducted virtual and in-person interviews with key stakeholders to better understand the practical application of the law and the experience of emerging adults in these jurisdictions.  Combining the information gleaned from our research with the existing body of research on emerging adults’ developmental needs and the adult criminal legal system’s effect on young people, we offer key elements of a model hybrid statute to serve as a resource for states that wish to adopt or expand hybrid systems.

Hybrid statutes vary greatly by the degree of protections they offer and present themselves on a wide spectrum between the adult criminal legal systems and juvenile justice systems.  This versatile nature of hybrid systems makes them an important tool in the toolbox of policymakers that seek to transform justice responses to emerging adults. Hybrid systems are associated with enhanced public safety as indicated in some studies by lower recidivism rates of impacted youth for weapon and violent offenses.  Through record protection measures, hybrid systems reduce collateral effects of a criminal record, increase employment and community engagement opportunities for youth, and can meaningfully curb incarceration.  A study of gun violence in Chicago, for example, showed that employment is the most important preventative factor to keep emerging adults from carrying guns.

"Conviction, Incarceration, and Recidivism: Understanding the Revolving Door"

The title of this post is the title of this new paper that looks to provide a notable (and lengthy) empirical account of contributions to recidivism.  The piece was recently posted to SSRN and is authored by John Eric Humphries, Aurelie Ouss, Kamelia Stavreva, Megan T. Stevenson and Winnie van Dijk.  Here is its abstract:

We study the effects of conviction and incarceration on recidivism using quasi-random judge assignment.  We extend the typical binary-treatment framework to a setting with multiple treatments, and outline a set of assumptions under which standard 2SLS regressions recover causal and margin-specific treatment effects.  Under these assumptions, 2SLS regressions applied to data on felony cases in Virginia imply that conviction leads to a large and long-lasting increase in recidivism relative to dismissal, consistent with a criminogenic effect of a criminal record.  In contrast, incarceration reduces recidivism, but only in the short run.  The assumptions we outline could be considered restrictive in the random judge framework, ruling out some reasonable models of judge decision-making.  Indeed, a key assumption is empirically rejected in our data.  Nevertheless, after deriving an expression for the resulting asymptotic bias, we argue that the failure of this assumption is unlikely to overturn our qualitative conclusions.  Finally, we propose and implement alternative identification strategies.  Consistent with our characterization of the bias, these analyses yield estimates qualitatively similar to those based on the 2SLS estimates. Taken together, our results suggest that conviction is an important and potentially overlooked driver of recidivism, while incarceration mainly has shorter-term incapacitation effects.

FIRST STEP Act sentence reduction used to address "FBI invented" conspiracy in which feds were "the real lead conspirator"

The FIRST STEP Act's procedural changes to sentencing reduction motions pursuant to 18 USC § 3582(c)(1)(A) continue to provide not only a critical mechanism to address excessive federal prison sentences, but also a fascinating window on a wide array of problematic aspects of the federal criminal justice system.  Many so-called "compassionate release" motions are often efforts to reduce injustices as much they are efforts to increase compassion in our federal sentencing system.  The latest example of this dynamic story comes from New York federal courts as reported in this AP piece headlined "Judge orders release of 3 of ‘Newburgh Four’ and assails FBI’s role in a post-9/11 terror sting."  Here are the basics:

Three men convicted in a post-9/11 terrorism sting have been ordered freed from prison by a judge who deemed their lengthy sentences “unduly harsh and unjust” and decried the FBI’s role in radicalizing them in a plot to blow up New York synagogues and shoot down National Guard planes.

Onta Williams, David Williams and Laguerre Payen — three of the men known as the “Newburgh Four” — were “hapless, easily manipulated and penurious petty criminals” caught up more than a decade ago in a scheme driven by overzealous FBI agents and a dodgy informant, U.S. District Judge Colleen McMahon said in her ruling Thursday.

“The real lead conspirator was the United States,” McMahon wrote in granting the men’s request for compassionate release, effective in three months. She said that it was “heinous” of the men to agree to participate in what she called the government’s “made for TV movie.” But, the judge added, “the sentence was the product of a fictitious plot to do things that these men had never remotely contemplated, and that were never going to happen.”

She excoriated the government for sending “a villain” of an informant “to troll among the poorest and weakest of men for ‘terrorists’ who might prove susceptible to an offer of much-needed cash in exchange for committing a faux crime.” The U.S. attorney’s office declined to comment on the judge’s decision. A message seeking comment was sent to the FBI.

Citing concerns for the men’s health and her own qualms about the case, McMahon cut the 25-year mandatory minimum sentences she imposed on them in 2011 to time served plus 90 days. She said that would allow time for probation officials to prepare and for Payen’s lawyer to line up supportive housing for the man, who has a severe mental illness.

Judge McMahon's full opinion in US v. Williams, N. 09 CR 558 (CM) (SDNY July 27, 2023), is available at this link.  Here is just one notable passage in an opinion filled with notable passages:

For our purposes, suffice it to say the following: non-moving defendant Cromitie, the lead defendant in this case, was the object of a lengthy sting operation conducted by the FBI with the aid of a most unsavory “confidential informant,” Shaheed Hussain....  Over the course of the next few weeks, at Hussain's direction, he recruited David and Onta Williams and Laguerre Payen, to serve as “lookouts” while Cromitie planted “bombs” manufactured by the FBI at a synagogue and community center in Riverdale.  None of these three defendants had any history as terrorists; like Cromitie, they were impoverished small time grifters and drug users/street level dealers who could use some money. Payen in particular was of questionable mental acuity.  The three men were recruited so that Cromitie could conspire with someone; the real lead conspirator was the United States, but Cromitie could not conspire with the Government.

Nothing about the crimes of conviction was defendants' own doing.  The FBI invented the conspiracy; identified the targets; manufactured the ordnance; federalized what would otherwise have been a state crime (the Bronx “bomb” plot) by driving three of the four men (Onta Williams was not available) into Connecticut to view the “bombs” and “stinger missile launchers” that would be used in the operation; and picked the day for the “mission” (which was filmed in real time so it could be shown on television news the night the men were arrested). On May 20, Hussain drove the four men to Riverdale (they had no way to drive themselves); “armed” the “bomb” (because the hapless Cromitie, despite his “training,” could not figure out how to do it); and told Cromitie how to place the device while David Williams, Onta Williams and Payen performed lookout duty. As soon as the fake device was left by the community center door, law enforcement arrested the four men.