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November 4, 2023

Could Professor John Pfaff help make criminal justice blogging cool again?

The question in the title of this post reflects my (slightly tongue-in-cheek) excitement from seeing that CrimLaw Prof John Pfaff has started this new blog titled "Prisons, Prosecutors, and the Politics of Punishment."  Professor Pfaff, who I consider a friend and whose terrific (often empirical-minded) work is always a must-read, was one of a number of astute law professors who used Twitter creatively and extraordinarily effectively to develop and promulgate ideas.  But now, as he explains in this "Welcome" post, it seems that the decline of Twitter has led him to a new (albeit now old) forum:

I realize that 2023 may be a little late to decide to start blogging, but I am also suddenly appreciating the extent to which I used to use the late, lamented, and now lamentable Twitter to work out new ideas, and to try to share new empirical findings quickly and in an aggressively non-academic way.   With the collapse of Twitter, and feeling some FOMO from watching everyone launch Substacks, I figured it was probably time.

As this intro notes, "substacking" seems to have become the new form of blogging; indeed, I suspect I would be inclined to go the substack route if I had not been in the habit of blogging for nearly two decades(!).  But I am quite pleased to see Professor Pfaff doing something he calls blogging, and here are some of his early substantive posts:

Millions of Uncounted People in Prison (Sort Of)

Mass Shooters, Mental Illness, and a Critical Statistical Mistake

Reform Prosecutors: The Winners and the Losers

I have already updated my blogroll to include "Prisons, Prosecutors, and the Politics of Punishment," and I am looking forward to seeing what Prof. Pfaff has to see in this new (albeit now old) forum.

November 4, 2023 in On blogging, Who Sentences | Permalink | Comments (0)

"The People Most Ignored by the Criminal-Justice System"

The title of this post is the title of this new commentary authored by Lenore Anderson in The Atlantic. I recommend the piece in full, and here is how it starts:

More than one in four Americans have been a victim of violent crime in the past decade, but few were able to get the help they deserve. Less than 10 percent of violent-crime victims get assistance from victim-services agencies, and two-thirds of all victims report never receiving mental-health or financial assistance. Many suffer further, losing their jobs due to injury, accumulating insurmountable medical debt, and assuming financial burdens left over from deceased loved ones—all while facing the health effects of the traumas they have suffered, such as chronic and debilitating stress, hypervigilance, depression, and insomnia.

In battles over U.S. crime policy, victims are rarely anyone’s priority. Advocates for a more punitive system focus on strengthening the power and reach of criminal-justice agencies, stressing strict punishments and more arrests. Reformers trying to reduce the system’s punitiveness, for their part, tend to gloss over the devastating consequences of violence as they focus on slashing incarceration. Victims are lost in this shuffle, disregarded both by the institutions meant to protect them and many of the advocates claiming to support them.

And the disregard is not felt evenly. Low-income people and people of color, as well as people with disabilities and members of the LGBTQ community, are more likely to be repeatedly hurt by violence and less likely to garner victim assistance. Young people from these demographic groups are particularly affected. The most harmed are the least helped.

November 4, 2023 in Victims' Rights At Sentencing | Permalink | Comments (3)

November 3, 2023

Prohibiting Punishment of Acquitted Conduct Act receives unanimous bipartisan support in US House Judiciary Committee

I noted in this post a few days ago that the US House of Representative Committee on the Judiciary on November 2 had a markup scheduled on a set of bills including the Prohibiting Punishment of Acquitted Conduct Act of 2023 (HR 5430).   I predicted that HR 5430 bill would move forward, but I was still pleased to see this press release from a bill sponsor about what transpired:

Congressman Steve Cohen (TN-9) today led the Prohibiting Punishment of Acquitted Conduct Act through the Judiciary Committee.  His bipartisan measure was approved 23 to 0.  In September, Congressman Cohen introduced the bipartisan, bicameral measure with Representative Kelly Armstrong and Senators Dick Durbin and Chuck Grassley. This legislation would end the unjust practice of judges increasing sentences based on conduct for which a defendant has not been convicted.  It will now advance to the full House of Representatives for a floor vote.

During today’s markup of the bill, Congressman Cohen said in part:  “I would like to emphasize that Kelly Armstrong (R-N.D.) was a strong supporter and an excellent cosponsor and I appreciate him and Senators (Dick) Durbin and (Chuck) Grassley on the Senate side as sponsors. Just about every Supreme Court Justice who’s been around lately – John Paul Stevens, Anthony Kennedy, and Antonin Scalia…Ruth Bader Ginsberg, Clarence Thomas, going down to (Neil) Gorsuch and (Brett) Kavanaugh have all said this needs to be changed.  So with that I would ask that we move forward and arrive at justice.  People should be convicted of proven crimes and sentenced for those crimes. That’s why we need this bill – to make sure that people are only sentenced for the crimes they were convicted of.”

So now we know that there is a least one issue that can garner bipartisan and even unanimous support in the US Congress, namely a statutory reform to prohibiting federal punishment based on acquitted conduct.  This notable vote committee certainly does not ensure Congress will get this bill to the desk of the President, but it should serve as a strong message to the US Sentencing Commission that it should have bipartisan support for any acquitted conduct reforms it might be considering during its current amendment cycle.

November 3, 2023 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

November 2, 2023

You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts?

This CNBC article reports on the high-profile federal jury convictions handed down this evening.  Here are the highlights with an eye on sentencing prospects:

A jury has found Sam Bankman-Fried guilty of all seven criminal counts against him. The FTX founder faces a maximum sentence of 115 years in prison.

Bankman-Fried, the 31-year old son of two Stanford legal scholars and graduate of Massachusetts Institute of Technology, was convicted of wire fraud and conspiracy to commit wire fraud against FTX customers and against Alameda Research lenders, conspiracy to commit securities fraud and conspiracy to commit commodities fraud against FTX investors, and conspiracy to commit money laundering.

He had pleaded not guilty to the charges, which were all tied to the collapse late last year of FTX and sister hedge fund Alameda. “Sam Bankman-Fried perpetrated one of the biggest financial frauds in American history,” Damian Williams, U.S. attorney for the Southern District of New York, said in a briefing after the verdicts were read. “The cryptocurrency industry might be new. The players like Sam Bankman-Fried, Fried might be new. But this kind of fraud, this kind of corruption, is as old as time and we have no patience for it.”

The trial, which began in early October, pitted the testimony of Bankman-Fried’s former close friends and top lieutenants against the sworn statements of their former boss and ex-roommate. The jury returned a swift verdict after receiving the case at around 3:15 p.m. on Thursday....

Judge Kaplan thanked the jurors for their service, and they were escorted out. Kaplan then asked about the second trial Bankman-Fried is facing on March 11. The government has until Feb. 1 to to let the court know if it it plans to still proceed. The sentencing date is March 28 at 9:30 a.m....

The monthlong trial was highlighted by testimony from the government’s key witnesses, including Caroline Ellison, Bankman-Fried’s ex-girlfriend and the former head of Alameda, and FTX co-founder Gary Wang, who was Bankman-Fried’s childhood friend from math camp. Both pleaded guilty in December to multiple charges and cooperated as witnesses for the prosecution. Most of the defense’s case was built on the testimony of Bankman-Fried himself, who told the court that he didn’t commit fraud or steal customer money, but just made some business mistakes.

The central question for jurors to consider was whether Bankman-Fried acted with criminal intent in taking customer funds from FTX and using that money to pay for real estate, venture investments, corporate sponsorships, political donations and to cover losses at Alameda after crypto prices plunged last year....

Bankman-Fried now awaits sentencing. His case has been compared to that of Elizabeth Holmes, the founder of medical device company Theranos, which ceased operations in 2018. Holmes, 39, was convicted in early 2022 on four counts of defrauding investors in Theranos after testifying in her own defense. She was sentenced to more than 11 years in prison, and began serving her punishment in May at a minimum-security facility in Bryan, Texas.

For sentencing purposes, I do not think Elizabeth Holmes is a perfect comparison for Sam Bankman-Fried.  But I expect SBF's lawyers are going to be eager to argue that Holmes and her sentence provide a proper benchmark for SBF's sentencing.  But I also expect the guideline range calculated for SBF to be higher than Holmes' calculated guideline range; in fact, it seem likely that the guidelines will recommend a life sentence for SBF.

But, of course, because the guidelines are only advisory, Judge Lewis Kaplan will have to assess all the 3553(a) factors to decide what sentence for SBF is "sufficient, but not greater than necessary, to comply with the purposes set forth" by Congress in 3553(a)(2). Though sentencing is not scheduled to take place for nearly five months, it is surely not too early for folks to use the comments to share their own views on a "sufficient, but not greater than necessary," sentence for SBF.

November 2, 2023 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (33)

Notable coverage of Third Circuit's latest jolt to loss calculation in federal fraud guidelines

In this post more than 30 months ago, I asked "Did a Sixth Circuit panel largely decimate the federal sentencing fraud guidelines (and perhaps many others)?"  That post was focused on US v. Riccardi, No. 19-4232 (6th Cir. Mar. 3, 2021) (available here), where the panel ruled that a quirky part of the commentary to the 2B1.1 fraud guideline improperly expanded the guideline term "loss."  I thought that ruling could further undermine the key 2B1.1 guideline commentary stating that "loss is the greater of actual loss or intended loss."  Notably, last year in US v. Banks, No. 19-3812 (3d Cir. Nov. 30, 2022) (available here), a Third Circuit penal embraced that thinking when holding that "the loss enhancement in the Guideline’s application notes impermissibly expands the word 'loss' to include both intended loss and actual loss." 

Savvy administrative law folks (or regular readers) likely know that this jurisprudence flows from the Supreme Court's work in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), which recast  "the deference [courts] give to agencies ... in construing agency regulations."  (Of course, the Kisor case had nothing to do with the federal sentencing guidelines, but lower courts have since grappled with whether and when Kisor means that the commentary to the guidelines no longer should always be followed.)  And savvy white-collar practitioners  likely know that this jurisprudence can be an especially big deal in high-profile fraud cases.  And this week, Bloomberg News has this lengthy discussion of some of the fall-out of the Banks ruling under the headline "Wall Street Fraudsters Rush to Cut Prison Terms With New Ruling."  I recommend the piece in full, and here are extended excerpts:

In the case of [Gary] Frank, who pleaded guilty in 2019 to inflating the revenue of his legal benefits company to borrow millions, there was a big difference between the amount he intended to cheat his victims (as much as $150 million) and their actual losses (as much as $34 million).  And that just may help him get out of prison early.

The fallout started last year after the 3rd Circuit US Court of Appeals ruled that Frederick Banks, a Pennsylvania man convicted of attempting to dupe Gain Capital Group LLC out of $246,000, should be resentenced.  The online trading company, the court found, suffered no actual losses given that it never sent him the funds.  The Banks decision is significant since the gap between actual and intended losses in fraud cases can be vast, greatly skewing the amount of prison time from barely any to more than a decade.

“The No. 1 variable that moves the needle in sentencings for white collar cases is the loss amount,” said Andrew Boutros, a white-collar defense attorney at Dechert. “The loss amount has a huge impact on the ultimate advisory sentencing range that the court calculates.”...

The ruling has sparked a debate on how much deference to give the US Sentencing Commission’s interpretation of its own guidelines, which includes a scale for federal judges across the country to follow for ratcheting up prison time based on losses to victims.  The commission suggests in its commentary using the greater of actual or intended loss when determining sentences.  But the appellate panel in Banks used a Supreme Court decision to challenge the commission’s authority to interpret its own rules in finding that only actual loss should be used to calculate sentences.

Prosecutors have tried to persuade judges that the sentencing commission’s interpretation deserves deference.  The Justice Department has warned that relying only on actual losses would let certain defendants off the hook who are unsuccessful in pulling off a scheme.  Defense attorneys for years have argued that relying on intended loss under the commission’s guidelines leads to overly harsh sentences that don’t reflect the criminal conduct. “We are getting these absurd results where nonviolent criminals are getting extraordinary sentences,” said defense attorney Tama Kudman.

Kudman successfully used the Banks ruling in Florida to persuade a judge that actual losses should only be taken into account when sentencing a lab owner found guilty of billing Medicare for unnecessary genetic tests.  Minal Patel billed Medicare for more than $463 million in tests but the actual loss to taxpayers was $187 million.

The Banks decision could significantly reduce prison time for defendants in securities and commodities cases since it is difficult to figure out actual losses in those situations.  “Prosecutors often rely upon intended loss as a proxy for actual loss in securities and commodities fraud cases,” wrote Paul Hastings attorneys in a client alert.  “This practice has allowed the government to calculate large loss amounts and seek high guidelines sentences where actual loss is incalculable or impractical to determine.”  It could also impact charging decisions, especially in 3rd Circuit territory, where prosecutors may think twice about devoting resources to cases with small actual losses.

In the year since the Banks ruling, defense attorneys have had limited success using the decision outside of the 3rd Circuit, which covers Pennsylvania, New Jersey, Delaware and the Virgin Islands.  In December, a federal judge in Michigan sided with the Banks ruling in a case involving a defendant who pleaded guilty to fraud against JPMorgan.  The judge reasoned that she didn’t have to defer to the sentencing commission because the definition of loss isn’t “genuinely ambiguous.”

In June, a North Carolina federal judge also agreed with the 3rd Circuit decision in supporting a lower sentencing guideline for a man who pleaded guilty to bank fraud against several financial giants, including JPMorgan, Wells Fargo and crypto exchange Coinbase Global Inc.  But the following month, a 6th Circuit panel shot down an attempt by a chemical engineer to rely on the ruling after she was convicted of stealing trade secrets from her former employers.  The panel criticized the 3rd Circuit for imposing a “one-size-fits-all definition” for loss that could “lead to vastly different sentences for similarly culpable defendants.”

In other cases, the 1st and 4th Circuits declined to take a position. “This is a new and fast-developing area of the law, and as of now, we do not have the kind of robust consensus in other circuits,” the 4th Circuit panel wrote.  That’s why some legal experts believe the Supreme Court will need to decide even though it has so far refused to take up the issue.

Judges, prosecutors and defendants have all urged the sentencing commission to make changes.  One defendant who is serving 95 years in prison for a cyber financial fraud scheme argued in an email to the commission to get rid of the intended loss interpretation since “it’s not based on fact, but rather off of subjective interpretation or ‘guess work.’”

November 2, 2023 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

"Does type of counsel matter? A Comparison of outcomes in cases involving retained- and assigned counsel"

The title of this post is the title of this new empirical article just published in the Journal of Crime and Justice and authored by Ronald Burns, Brie Diamond and Kendra N. Bowen.  Here is its abstract:

Existing research yields inconsistent results with regard to differences among type of counsel in criminal cases.  Studies in the area generally compare the effectiveness of indigent versus retained counsel, and public defenders versus assigned counsel, and focus on broad categories of crime.  The present work expands this literature through comparing case outcomes between assigned and retained counsel in the processing of criminal trespassing cases.  It also contributes through measuring type of counsel in relation to the imposition of charge enhancements, a variable largely absent from the research literature.  Results suggest that type of counsel does impact case outcomes, as defendants with assigned counsel were more likely to have a charge enhancement, be sentenced to jail, and spend more time in jail.  Focusing on less serious offenses provides a more reflective account of what often occurs in court given that most crimes are less serious in nature.

November 2, 2023 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

The Sentencing Project releases latest report on racial disparities, “One in Five: Disparities in Crime and Policing”

As noted in this post last month, The Sentencing Project has announced that it is "producing a series of four reports examining both the narrowing and persistence of racial injustice in the criminal legal system, as well as highlighting promising reforms." Today, The Sentencing Project released this latest report in this series, the second I believe, titled “One in Five: Disparities in Crime and Policing.” Here is part of the report's executive summary:

As noted in the first installment of this One in Five series, scholars have declared a “generational shift” in the lifetime likelihood of imprisonment for Black men, from a staggering one in three for those born in 1981 to a still troubling one in five for Black men born in 2001....

This report interrogates the large footprint of policing — particularly of Black Americans— as, in part, a failed response to racial disparities in serious crimes. The wide net that police cast across people of color is at odds with advancing safety because excessive police contact often fails to intercept serious criminal activity and diminishes the perceived legitimacy of law enforcement.  Excessive policing also distracts policymakers from making investments to promote community safety without the harms of policing and incarceration. In addition, the large footprint of policing gets in the way of, as the National Academies of Sciences has called for, needed “durable investments in disadvantaged urban neighborhoods that match the persistent and longstanding nature of institutional disinvestment that such neighborhoods have endured over many years.”...

Ending racial inequity in the criminal legal system requires both effectively tackling disparities in serious criminal behavior and eliminating excessive police contact.  The subsequent installments of this One in Five series will examine additional drivers of disparity from within the criminal legal system and highlight promising reforms from dozens of jurisdictions around the country.

Prior recent related post:

November 2, 2023 in Data on sentencing, National and State Crime Data, Race, Class, and Gender, Who Sentences | Permalink | Comments (22)

November 1, 2023

Rounding up a few reactions to new federal sentencing guidelines going into effect

As noted here, the new US Sentencing Guidelines officially went into effect today.  This formal legal development prompted a few press pieces that merit a round-up:

From Bloomberg Law, "Significant Amendments to US Sentencing Guidelines Now in Effect"

From FWD.com, "Federal Sentencing Commission Advances Meaningful Criminal Justice Reforms"

From JD Supra, "Good News for White Collar Defendants and Their Lawyers – Recent Changes to the Sentencing Guidelines"

From Marijuana Moment, "Federal Sentencing Commission’s New Marijuana Guidelines Directing Judges To Treat Past Convictions More Leniently Officially Take Effect"

November 1, 2023 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Some notable acquitted conduct news and notes

A helpful colleague alerted me to two items of note for those (like me) who are interested in debates over acquitted conduct sentencing in the federal system. 

First, on the legislative front, as indicated at this webpage, the US House of Representative Committee on the Judiciary has a markup scheduled for tomorrow morning at 10am, and one of the bills scheduled to be marked up is The Prohibiting Punishment of Acquitted Conduct Act of 2023 (HR 5430).   I believe we should expect the bill to move forward, recalling that the US House last year voted for the Prohibiting Punishment of Acquitted Conduct Act of 2021 by a vote of 405 to 12.  Of course, the House is under different leadership and so nothing it every a given in the legislative process (and, of course, this kind of bill has yet to move forward in the US Senate).

Second, on the judicial front, a First Circuit panel handed down an interesting acquitted conduct sentencing ruling last week in US v. Carvajal, No. 22-1207 (1st Cir. Oct. 26 ,2023) (available here).  Because the outcome is standard for lower federal court acquitted conduct cases, I will just here provide the start of the opinion:

After a jury convicted Bernardito Carvajal of possession with intent to distribute and distribution of fentanyl, the district court sentenced him to 120 months in prison.  Carvajal appeals his sentence on two grounds.  First, he argues the district court considered impermissible evidence, including conduct of which the jury acquitted him, in determining his sentence. Second, Carvajal contends the district court should have reduced his sentence based on his acceptance of responsibility at trial.  Because controlling case law permits the consideration of acquitted conduct at sentencing and the record otherwise supports the district court's rulings, we affirm.

November 1, 2023 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Nov 2023: The new Guidelines are here, the new Guidelines are here!!

Though now nearly a 50-year-old reference, today I still cannot help but think of a silly scene from "The Jerk" in which Steve Martin's character is so excited about the new phonebook arriving, which he think means "things are going to start happening" now.  In the sentencing universe, the new book that arrives on November 1 is the new official revised version of the US Sentencing Guidelines.  And this date is especially exciting because the new Nov 2023 Guidelines are the first substantively new version of the book since 2018 because the US Sentencing Commission was without a quorum for nearly four years. 

Helpfully, the US Sentencing Commission sent out an email yesterday highlighting all the new resources related to the new guidelines.  Here is part of the text and links of this email:

The 2023 Guidelines Manual can now be accessed online in PDF, annotated HTML, and mobile-friendly app formats. Hard copies are en route to Federal Judges, U.S. Probation Officers, Federal Public Defenders, U.S. Attorneys, Assistant U.S. Attorneys, and Commission Advisory Group members. The GPO Bookstore will also soon have hard copies publicly available for purchase.

2023 Annotated Manual

The official online version of the Guidelines Manual includes quick integrated access to guidelines history and reasons for amendments....  Explore the Annotated Manual

2023 Guidelines App

The Guidelines App offers easy on-the-go access to the Guidelines Manual (with add-on features below) through any internet browser — no download or installation necessary.....  Explore the App

2023 Amendments In Brief

Access the 2023 Amendments In Brief for a quick recap of each amendment, including the issue that prompted Commission action and the reasons for the amendment.

I have highlighted some of the biggest ticket items in the new federal sentencing guidelines in a number of prior posts, a few of which are reprinted below.  And because there is surely much to litigate about the new guidelines (especially the criminal history rules which are to be applied retroactively), I expect there will be a number of future posts about the new guidelines.

A few of many prior related posts:

November 1, 2023 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (3)

October 31, 2023

"Juvenile Crime and Anticipated Punishment"

The title of this post is the title of this notable new article authored by Ashna Arora just published in the November issue of American Economic Journal: Economic Policy.  Here is its abstract:

Can sanctions deter juvenile crime?  Research indicates that they may not, as offending barely decreases when individuals cross the age of criminal majority and begin to face harsher sanctions.  Several models of criminal behavior predict, however, that these small reactions close to the threshold may mask larger behavioral responses among individuals below the age threshold.  Policy variation between 2007–2015 in the United States is used to show evidence consistent with these predictions — juvenile crime increases when the age of majority is increased.  This increase is driven by younger age groups and is considerably larger than discontinuity estimates at the threshold.

October 31, 2023 in Data on sentencing, Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

New white-paper on "Advancing the Use of Data in Prosecution: What We Measure Matters"

 Fair and Just Prosecution (FJP) this week released this new white paper focused on data collection by prosecutor offices.  Three FJP contributors to the white paper also authored this new commentary at The Crime Report headlined "Every Prosecutor’s Office Should Be Investing in Data."  The start of the commentary provides context and a preview of the full white paper:

Local prosecutors hold enormous power over the outcomes of criminal cases.  Their decisions -– whether to file a case, what charges to bring, what dispositions to offer, and what sentences to seek -– impact the lives of individuals and their communities every day.

Yet, for decades, little has been known about the inner workings of prosecutor’s offices, as elected prosecutors’ historical resistance to data and transparency has shielded them from accountability both internally and externally. But as more and more communities demand new approaches to prevent crime and promote justice -– and as misinformation about justice reform abounds -– it’s long past time to unlock the black box of prosecution. 

A new generation of prosecutors is helping us do just that by investing resources in cultivating data and releasing it to the public, improving both the effectiveness and equity of their offices and thereby promoting public safety.  Now, more need to follow suit. 

Seeking justice in a criminal case is a complex and difficult job, and that job is often made more difficult by a lack of data available to the elected prosecutors who oversee this work.  Imagine running a prosecutor’s office that processes thousands of cases each year, but you have no system to track how individual prosecutors are handling pretrial release recommendations, where office resources are being focused, how and where cases are languishing in the system, the ultimate disposition recommended and imposed in cases, or the racial disparities that may be perpetuated by your own office.  How would you know whether your staff is adhering to the policies you put in place?  How do you measure your office’s success?

Building a data infrastructure that allows an office to quickly and accurately answer these questions is not an easy undertaking.  But it’s more important than ever that policymakers, advocates, and the public have a common set of facts they can work from and a common understanding of how prosecutors are making these critical decisions.  And that requires improved data capacity in the more than 2,000 prosecutor’s offices nationwide. 

That’s why Fair and Just Prosecution recently released  “Advancing the Use of Data in Prosecution,” a first-of-its-kind report that lifts up the inspiring data work happening in prosecutor’s offices across the country and offers guidance for others seeking to improve their systems. 

October 31, 2023 in Data on sentencing, Who Sentences | Permalink | Comments (1)

October 30, 2023

Detailing yet another challenging detail of earned time credits under the FIRST STEP Act

Walter Pavlo has another effective article in Forbes providing another review of yet another accounting challenge in calculating earned time credits under the FIRST STEP Act. This piece is headlined "Bureau Of Prisons’ Dilemma On First Step Act Credits," and here are excerpts:

The First Step Act (FSA) was signed into law in December 2018. The law allowed prisoners, mostly minimum and low security offenders, to earn a reduction in their sentence for being productive while incarcerated. That productivity is measured by the prisoners’ participation in meaningful programs and having a job while incarcerated. However, nearly five years after the law was enacted, the complexities of the Federal Bureau of Prisons (BOP) ability to comply with the law is still being revealed....

According to the BOP’s own program statement:... "An eligible inmate begins earning FSA Time Credits after the inmate’s term of imprisonment commences (the date the inmate arrives or voluntarily surrenders at the designated Bureau facility).”  [But a recent] decision in a federal court in New Hampshire has upended this definition of when FSA Earned Time Credits begins ... [by ruling that] "the date established by the plain language of the FSA upon which [a defendant] is entitled to begin earning FSA time credits is [the date of sentencing]."...

The BOP is in a bad position in that it can either follow the law, which is flawed, because it has no mechanism to measure success under FSA (classes and work assignment) for prisoners not in their custody at the final designated facility. The alternative is that the BOP can follow a judgment from a federal court and award credits to prisoners who have not complied with the programming requirements of FSA.

One solution, or compromise, would be to get prisoners to their final destination in less time, but that does little to those who went through lengthy transportation nightmares getting to their designated facility.  However, even that is outside of the BOP’s power as transportation of prisoners falls under US Marshals.  Another is for the BOP to provide some programming, even a manual, to give to prisoners immediately after sentencing to start the FSA programming and to provide some sort of PATTERN assessment soon after the prisoner is sentenced.  All of these solutions are outside the control of the prisoner who must serve the time with no means to correct the situation other than going to court.

The BOP could change its FSA Program Statement right now to comply with this New Hampshire decision but it has not and it is likely trying to assess how it can comply.  However, the BOP did not appeal the Yufenyuy decision, so many prisoners remain in limbo on this issue. The result is that the FSA continues to experience problems in its implementation and the prisoners and their families are the ones paying the price.

October 30, 2023 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Some early accounts of SCOTUS oral arguments regarding civil forfeiture process

As previewed in this post, this morning the US Supreme Court heard oral argument in Culley v. MarshallNo. 22-585, which presents questions regarding what the Due Process Clause requires for state civil forfeiture processes.  My teaching schedule has so far kept me from listening to the full argument, which ran nearly 100 minutes and is now available at this link.   The headline of some of the press pieces discussing the argument suggests a split court, but one leaning in favor of the state and against individuals who have had their property seized:

From Bloomberg Law, "Justices Doubt Test Favoring Prompt Post-Seizure Hearings"

From Law.com, "'Hard Row to Hoe': Skeptical Supreme Court Hears Demand for Quick Forfeiture Hearings"

From Law & Crime, "Sotomayor, Gorsuch appear to team up against Alabama in civil asset forfeiture case"

From Reuters, "US Supreme Court leans toward Alabama in dispute over vehicles seized by police"

From the New York Times, "Cars Seized by Police Get Supreme Court Scrutiny in Civil Forfeiture Case"

October 30, 2023 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Nearly final Call for Papers: "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws"

It is not quite November, so there is time for me to highlight once again the call for papers relating to an exciting event to take place at OSU next year, "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws."  Here is the call, which is available in full at this link

The Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law will host a symposium titled "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws" on  April 11-12, 2024 in Drinko Hall at The Ohio State University in Columbus, Ohio.  The symposium aims to examine and assess, from a variety of perspectives and with the help of a variety of voices, recent legal and policy developments regarding collateral consequences, record relief efforts, and broader concerns of justice and fairness for individuals and communities with criminal justice system involvement.


For years, advocates spoke about the “invisible punishment” flowing from the legal restrictions and societal stigmas that burden people with any criminal record long after involvement with the justice system.  But the many concerns surrounding so-called “collateral consequences” have become more visible in legal and policy circles in recent years. Over the past decade, dozens of states have enacted laws seeking to reduce the barriers people with a criminal record face in the workplace, in housing, at the ballot box, and many other areas.

These developments have been characterized by the Collateral Consequences Resource Center as “a full-fledged law reform movement aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system.”  But the import and impact of this modern reform movement remains unclear, in part because record relief laws and practices differ widely across jurisdictions.  Some states have made only modest reforms to their record sealing laws, while other states have enacted ambitious automatic record relief systems.  And the practical impact of record relief reforms vary dramatically depending on not just the reach of the laws, but also the resources that are devoted to implementing these laws. Intriguingly, as record relief efforts have spread at the state level, federal record relief continues to languish.

Call for Papers

The symposium is soliciting papers from researchers to be included in the scholarship workshop.  Each paper will be assigned a discussant to provide feedback during the workshop.  The papers will be gathered and published in a symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication, in the spring of 2025.

Proposed abstracts of no more than 300 words are due on November 1, 2023.  Abstracts can be submitted to Jana Hrdinova at hrdinova.1 @ osu.edu.  Accepted researchers will be notified by November 17, 2023.

Download the full call for papers here.

October 30, 2023 in Collateral consequences | Permalink | Comments (0)

October 29, 2023

"Original Understanding, Punishment, and Collateral Consequences"

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

Can Founding-era understandings of punishment limit the reach of punitive state activity, specifically with respect to automatic collateral consequences?  This Article begins to tackle that question.  For over a century, the Supreme Court has struggled to define the boundaries of crime and punishment.  Under current doctrine, a deprivation constitutes punishment when it furthers a legislatively assigned penal purpose.  A retributive purpose is sufficient, whereas traditionally instrumentalist purposes, such as deterrence, rehabilitation, or incapacitation, are not.  Scholars have criticized this framework for several reasons, highlighting its jurisprudential assumptions, philosophical confusion, historical inconsistency, unworkability, complexity, and failure to reflect the essentially punitive nature of many, if not most, of the “collateral consequences” that flow from a conviction.

This Article offers a different critique along methodological grounds, arguing that existing doctrine is divorced from core jurisprudential premises in the broader constitutional tradition and the original meaning and understanding of crime and punishment.  First, while the American Constitution and legal tradition permit legislative determination of new types of crimes and the quantity of punishment, the understanding of crime and punishment at the time of the Founding was much simpler than the understanding reflected by existing doctrine.  Current law mistakenly defers to legislative judgment for resolving the definitional question, all but guaranteeing legislative overreach.  Second, the Court’s precedents have restricted the only sufficient penal purpose to retribution despite significant philosophical and legal history suggesting early American thinkers, reformers, and the Framers considered other purposes to be punitive.  Founding era attitudes relating to the justifications for and purposes of punishment, and the types of deprivations carried out by the state in the wake of conviction, suggest a thicker understanding of punishment that contemplates both retributive and instrumentalist purposes.

Put simply, there is ample evidence that Founding-era thinkers understood punishment to include state-imposed suffering that served retributive and non-retributive purposes.  The meaning of punishment was informed by an array of philosophical concepts, historical practices, and an understanding of criminal law and its enforcement built from liberal premises that also are instrumentalist.  Many early punishments had stigmatic, incapacitative, or rehabilitative purposes, and reformers often pointed to instrumentalist purposes to justify modification of punishment practices, leaving room for the punishment label to apply to more state-sanctioned deprivations than are currently classified as punishment.  By contrast, existing doctrine narrowly conceives the meaning of the term “punishment”.  If “purpose” is the lodestar, then the definition of punishment should be broader based on the historical evidence.  In an era of overwhelming collateral consequences, lawmakers and judges who take the original meaning of terms seriously for purposes of constitutional interpretation should take note when either classifying or adjudicating the character of a deprivation carried out by the government.  These findings furnish grounds for questioning the modern classification of many automatic collateral consequences as non-punitive measures, providing potential limits that are consistent with Founding-era conceptions of punishment.

October 29, 2023 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (5)

Fifth Circuit panel finds protected liberty interest for Louisiana prisoner seeking parole reinstatement

A helpful commenter flagged a notable new panel ruling from the Fifth Circuit handed down last week.  Though the factual particulars are complicated and critical in Galbraith v. Hooper, No. 22-30159 (5th Cir. Oct. 23, 2023) (available here), folks who litigate over parole or other back-end procedures in the criminal justice system may find a lot of aspects of the opinion interesting and important.  Here is how the 24-page opinion begins and ends:

Samuel Galbraith, a Louisiana prisoner, sued the Louisiana Board of Pardons and Parole (“Parole Board”), seeking to have his parole reinstated on the grounds that its rescission just prior to its effective date violated his due process rights. The district court agreed with Galbraith and ordered his release on parole within 30 days, subject to the original conditions of his parole. On appeal, the Parole Board’s arguments include that there is no constitutionally protected liberty interest in parole. Based on Louisiana’s parole statutes, we hold that, on the facts of this case, a liberty interest did arise. We AFFIRM....

[Quoting magistrate's ruling: "]While it is true that Louisiana’s parole statutes do not create a liberty interest in the granting of parole, once parole has been granted, the Parole Board’s discretion to rescind that parole was statutorily limited to an objective, fact-based finding that Petitioner had either: (1) violated the terms of his work release, or (2) engaged in misconduct.  Neither statutory basis was even argued, much less established in April 2017.  Under the Fourteenth Amendment, Petitioner was entitled to notice and a meaningful opportunity to be heard before rescinding his parole, which did not occur.["]

Galbraith’s parole was ostensibly rescinded because of an alleged problem with notice to a victim. He was notified of this reason on May 1, 2017, 10 days after his parole was rescinded. At the time, that was not a permissible reason to rescind his grant of parole.

Therefore, Galbraith’s parole was improperly rescinded.

October 29, 2023 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)