Sentencing Law and Policy

Continuing coverage of DOJ efforts to continue prosecuting recipient of commutation by Prez Trump

Back in June of this year, I had the honor of serving as a witness at a congressional hearing to discuss federal clemency.  Specifically, the House Judiciary Subcommittee on Crime and Federal Government Surveillance conducted a hearing titled "The Examination of Clemency at the Department of Justice," and the hearing page noted that one goal of the hearing was to "examine the Department of Justice's unprecedented re-prosecution of Philip Esformes, whose prison sentence was originally commuted by President Donald Trump."   I explained in my written testimony why,  though I was "only somewhat familiar with the intricacies of the Esformes case," I found "deeply troubling any Justice Department efforts to re-prosecute any clemency recipient for conduct related to a clemency grant."

Perhaps unsurprisingly, the Esformes case and related issues continue to garner attention.  Indeed, in recent weeks, I have now seen a number of new press pieces on these matters:

From Mother Jones, "Donald Trump Freed a Convicted Medicare Fraudster. The Justice Department Wants Him Back."

From Salon, "Ex-prosecutor: DOJ targeting freed fraudster a 'reminder of Trump's gross abuse of pardon power'"

From the Washington Post, "Fraudster freed from prison by Trump faces prosecution under Biden"

Looking at these issues beyond the specifics of the Esformes case, there is quite an interesting forward-looking political component to these matters given that former Prez Trump is a leading candidate for President in the 2024 election.  Because the Supreme Court has ruled there are few formal legal limits on the clemency power set forth in the US Constitution, political accountability serves as the only significant functional restraint on this executive power. 

If "the people" were truly troubled by how Trump used his pardon power as president, voters can hold him accountable at the ballot box in the upcoming election.  But I have not yet heard any of former Prez Trump's political rivals directly assailing his past clemency record nor his stated promise to pardon a "large portion" of those convicted of federal offenses for involvement with January 6 riot.  It seems, at least within the GOP primary field, that there is little expectation that Trump's clemency record or promised would be a real political vulnerability. 

Notably, this Fox News piece from June quoted a former staffer for former VP Mike Pence stating that "we have to have a real conversation of what would people actually do with the power of the pardon ... [and] when you look at Donald Trump's record when it came to pardons, it was indefensible."  But VP Pence has already dropped out as a candidate for 2024, and I have yet to see on the political trail any high-profile efforts to have a "real conversation" about federal clemency past, present or future.  I doubt the Esformes case alone will prompt such a political conversation, but I do think possible clemency discussions could still be worth watching in the 12 months ahead.

Major City Chiefs Association report all major categories of violent crime down so far in 2023

As reported here at Crime and Justice News, "Reported violent crime totals in four categories -- homicides, rapes, robberies and aggravated assaults -- declined in a compilation of data from 69 cities through September compared with the same period last year, the Major Cities Chiefs Association reported on Friday."  Here is more:

The group said homicides dropped from 6,635 last year to 5,927 this year, rapes from 22,927 to 21,181, robberies from 79,591 to 77,603, and aggravated assaults from 218,906 to 211,380.

Although the trends were consistent across many reporting jurisdictions, there were notable exceptions.  For example, homicides reported in Washington, D.C., jumped from 155 in the first nine months of last year to 213 through September this year.  Homicides in Memphis rose from 181 to 218 and in Dallas from 198 to 205.  robberies in Chicago increased from 6,277 last year to 7,845 this year. New York City did not submit numbers for the report.

Texas completes execution for murder committed 33+ years ago after two death sentencings

As reported in this Texas Tribune piece, "Texas executed Brent Brewer, who spent three decades on death row on Thursday evening for the 1990 murder of Robert Laminack. It was the seventh execution of 2023."  Here is more about this execution:

In late appeals, Brewer's lawyers argued that his death should be delayed to consider the issue of unreliable testimony, or what his lawyers called “junk science,” but late Thursday afternoon the U.S. Supreme Court denied that request. Earlier this week, Texas’ highest criminal appeals court declined similar motions to stay Brewer’s execution.

The Texas Board of Pardons and Paroles unanimously rejected Brewer clemency appeal on Tuesday. Brewer’s legal team requested a lesser penalty for him on the grounds that one of the state’s expert witnesses used unreliable methodologies to testify and that a juror says they mistakenly sentenced Brewer to death.

At 6:23 p.m., Brewer was injected with a lethal dose of pentobarbital. He died 15 minutes later. “I would like to tell the family of the victim that I could never figure out the words to fix what I have broken. I just want you to know that this 53-year-old is not the same reckless 19-year-old kid from 1990. I hope you find peace,” Brewer said in a final statement.

Brent Brewer was convicted of killing Laminack, who owned a business in Amarillo, according to court documents. Brewer asked Laminack for a ride to a Salvation Army with his girlfriend Kristie Nystrom. While en route, Brewer stabbed the 66-year-old Laminack and stole $140 in cash.

Brewer was sentenced to death in 1991 for the murder, but in 2007 the U.S. Supreme Court found that his jury was not given sufficient opportunity for the jury to consider a less severe punishment. Two years later, another jury also sentenced Brewer to death.

Michele Douglas was one of the 2009 jurors. After listening to the evidence, Douglas believed that Brewer didn’t intend to kill Laminack, “things simply got out of hand, with a tragic outcome,” she wrote in an Houston Chronicle opinion piece last week, requesting clemency for Brewer. During the trial, Douglas did not want to vote in favor of capital punishment for Laminack’s murder, which she did not think was premeditated. Douglas said she misunderstood the jury instructions. “Believing — incorrectly — that my vote was meaningless, I acquiesced in the majority’s death penalty verdict. I cried when it was read in court. I was haunted afterwards,” Douglas wrote last week.

A death sentence requires a unanimous vote from the jury in Texas. Over the years, jurors in different capital cases across the state have said the instructions are not clear and they would have voted for life sentences without the possibility of parole if they had known that was an option. Lawmakers in the Texas House have passed legislation during several sessions attempting to clarify the instructions but those bills failed to get support from the Senate....

Former Baltimore prosecutor Marilyn Mosby now facing federal sentencing after jury conviction on two counts of perjury

Less than three years ago, then-Baltimore State’s Attorney Marilyn Mosby launched of a Sentencing Review Unit in order to, in her words, "review and when appropriate revise sentences." But now, as detailed in this AP piece, Mosby needs to worry about what a federal judge will decide is the appropriate sentence after her conviction of two counts of perjury:

A former top prosecutor for the city of Baltimore was convicted on Thursday of charges that she lied about the finances of a side business to improperly access retirement funds during the COVID-19 pandemic, using the money to buy two Florida homes.

A federal jury convicted former Baltimore state’s attorney Marilyn Mosby of two counts of perjury after a trial that started Monday. Mosby served two terms as state’s attorney for Baltimore. A federal grand jury indicted her on perjury charges before a Democratic primary challenger defeated her last year....

Mosby gained a national profile for prosecuting Baltimore police officers after Freddie Gray, a Black man, died in police custody in 2015, which was Mosby’s first year in office. His death led to riots and protests in the city. None of the officers were convicted.

Mosby declined to testify before her attorneys rested their case on Wednesday. After the verdict, she said, “I’m blessed. I don’t know what else to say,” as she left the courthouse and entered a waiting car. Mosby also faces separate charges of mortgage fraud. A trial date for those charges hasn’t been set.

In 2020, at the height of the pandemic, Mosby withdrew $90,000 from Baltimore city’s deferred compensation plan. She received her full salary, about $250,000 that year. Mosby’s 2022 indictment accused her of improperly accessing retirement funds by falsely claiming that the pandemic harmed a travel-oriented business that she had formed. She used the withdrawals as down payments to buy a home in Kissimmee, Florida, and a condominium in Long Boat Key, Florida.

Prosecutors argued that Mosby wasn’t entitled to access the funds under provisions of the Coronavirus Aid, Relief and Economic Security Act. They said her business, Mahogany Elite Enterprises, had no clients or revenue and didn’t sustain any “adverse financial consequences” from the pandemic. “This case is about a lawyer and a public servant who placed her own selfish interests above the truth,” Assistant U.S. Attorney Sean Delaney told jurors on Monday during the trial’s opening statements.

Mosby made separate withdrawals of $40,000 and $50,000 from the city retirement plan. Prosecutors say the money in the account is held in trust and belongs to the city until a plan participant is eligible to make a withdrawal. One of Mosby’s lawyers said she was legally entitled to withdraw the money and spend it however she wanted. Mosby told the truth when she certified on paperwork that the pandemic devastated her business, said federal public defender James Wyda.

During the trial’s closing arguments, Wyda said Mosby spent time and money to start a business designed to help “women of color” in business to travel to retreats. “You know the world stopped when the pandemic hit” in 2020, Wyda told jurors. “What company or business associated with the pandemic didn’t stop when the global pandemic hit?” A. Scott Bolden, a lawyer who initially represented Mosby but later withdrew from the case, has described the charges as “bogus” and claimed the case is “rooted in personal, political and racial animus.”...

U.S. District Judge Lydia Kay Griggsby agreed to move Mosby’s trial from Baltimore to Greenbelt, Maryland, a suburb of Washington, D.C. Mosby’s attorneys argued that she couldn’t get a fair trial in Baltimore after years of negative media coverage. Prosecutors opposed the venue change, saying Mosby had sought and encouraged coverage of the case.

"Thor is not subject to destruction as a direct punishment for Richards’ violation of the ordinance until the express prerequisites have been met"

The title of this post is a sentence from a state appellate court decision handed down earlier this week.  Eugene Volokh, via the Volokh Conspiracy post "Let Us Kill Your Dog or Go to Jail for a Year," gets credit for flagging the remarkable sentence and ruling in State v. Richards, No. 56949-3-II (Wash. Ct. App. Nov. 7, 2023)(available here).  Here are the basic facts and part of the sentencing discussion:

Jennifer Richards’ dog, Thor, twice bit another dog unprovoked.  As a result, Wahkiakum County determined that Thor was a dangerous dog under chapter 16.08 of the Revised Code of Wahkiakum County (RCWC).  One evening, Richards left Thor alone and unsecured on her property.  The county charged Richards with violating RCWC 16.08.050(F), an ordinance that makes it unlawful for a dangerous dog to be outside a proper enclosure unless the dog is muzzled and restrained by a substantial leash or physically restrained by a responsible person.  Neither state statute nor the county code authorizes destruction of the dog without an opportunity to cure a violation like this one.

After a bench trial on stipulated facts, the district court found Richards guilty and imposed the maximum jail time of 364 days.  However, the district court told Richards that it would suspend the sentence if Richards were to turn Thor over to animal control the next day....

At sentencing, the prosecution recommended that the district court impose the maximum sentence of 364 days in jail and a $5,000 fine, to be served until Richards gave Thor to the local animal control authority so he could be “put down.”   Richards asked for any sentence to be stayed pending appeal to the Wahkiakum County Superior Court. 

The district court imposed the maximum jail time of 364 days.  But it told Richards, “You shall not be required to go into custody if you provide written proof that the dog, Thor, has been surrendered . . . by tomorrow at 3:00 p.m.”  The district court added that if Richards were to fail to surrender Thor by that time, she would have to report to jail and remain there until she surrendered him.  Although the district court did not explicitly say Thor would be destroyed upon surrender, it appears that the judge, attorneys, and Richards all understood that Thor would be destroyed...

Richards asked if she could have a week to surrender Thor so that her boyfriend, who was away, would have a chance to say goodbye.  The district court denied her request.  It said, “Ms. Richards, you’ve had since . . . April of 2019 to come into compliance with the dangerous dog registration requirements.”  The district court added, “We are giving you a bit over 24 hours so that you can get your affairs in line, with both your daughter and your pet responsibilities here, and that is how much time the [c]ourt is willing to allow under the circumstances of this case.”... 

Richards argues that the district court could not impose a sentence that forced her to choose between having her dog destroyed and going to jail for 364 days.  She contends that while a district court “has broad discretion to impose sentencing conditions tending to prevent future commission of crimes,” it was unjust to order “the relinquishment of Thor as a condition of” avoiding imprisonment.   And she contends that tying her “personal freedom to the tormenting choice to kill her and her daughter’s dog is beyond cruel and unusual” under the federal and state constitutions.  The state responds that the district court had authority to impose Richards’ sentence under State v. Deskins, 180 Wn.2d 68, 322 P.3d 780 (2014). We conclude that the sentence imposed was outside the scope of the district court’s discretion....

While the crime of dangerous dog at large is a gross misdemeanor, under the plain language of RCW 16.08.100(1) and RCWC 16.08.110, Thor is not subject to destruction as a direct punishment for Richards’ violation of the ordinance until the express prerequisites have been met. The district court acted outside the scope of its discretion by imposing a condition for achieving a suspended sentence that was untethered from these state and county laws.  The district court, therefore, abused its discretion when it imposed Richards’ sentence.

Because there is no evidence in the record that the district court would have imposed the 364-day term of confinement without the condition allowing suspension of a sentence, we reverse and remand for a new sentencing hearing. Given that we remand, we need not reach Richards’ constitutional argument that the punishment was cruel and unusual.

Split Oklahoma Pardon and Parole Board recommends clemency for condemned inmate based on (jury-rejected) self-defense claim

As detailed in this AP piece, the "Oklahoma Pardon and Parole Board narrowly voted Wednesday to recommend sparing the life of a man set to be executed later this month for what he claims were the self-defense killings of two men in Oklahoma City in 2001." Here is more:

The board voted 3-2 to recommend clemency for Phillip Dean Hancock, who has long maintained he shot and killed Robert Jett Jr., 37, and James Lynch, 58, in self-defense after the two men attacked him.  Republican Gov. Kevin Stitt must now decide whether to grant clemency to Hancock, who is scheduled to receive a lethal injection on Nov. 30.

The board’s decision came after it heard from Hancock, 59, his attorneys, lawyers from the state and members of Jett and Lynch’s families.  Two Republican state legislators who say they strongly support the death penalty, Reps. Kevin McDugle and Justin Humphrey, also testified on Hancock’s behalf. “If any one of us were in that same exact situation ... we would have fought for our lives,” said McDugle, R-Broken Arrow.

Hancock’s attorneys claim that Jett and Lynch were members of outlaw motorcycle gangs who lured Hancock, who was unarmed, to Jett’s home and that Jett ordered him to get inside a large cage before swinging a metal bar at him. After Jett and Lynch attacked him, Hancock managed to take Jett’s pistol from him and shoot them both....

But attorneys for the state argued Hancock gave shifting accounts of what exactly happened and that his testimony didn’t align with the physical evidence at the scene.  Assistant Attorney General Joshua Lockett said the jury took all of this into account before rendering its verdict, which has been upheld by numerous state and federal appeals courts. “Hancock’s credibility was absolutely eviscerated at trial because his claims conflicted with the evidence,” Lockett said.

Lockett also said after Hancock shot Jett inside the house, a witness who was at the scene testified Hancock followed Jett into the backyard and heard a wounded Jett say: “I’m going to die.” Hancock responded, “Yes, you are,” before shooting him again, Lockett said. “Chasing someone down, telling them you are about to kill them and then doing it is not self-defense,” Lockett said.

Jett’s brother, Ryan Jett, was among several family members who testified and urged the panel not to recommend clemency.  “I don’t claim that my brother was an angel by any means, but he didn’t deserve to die in the backyard like a dog,” Ryan Jett said.

Hancock also was convicted of first-degree manslaughter in a separate shooting in 1982 in which he also claimed self defense. He served less than three years of a four-year sentence in that case....

Stitt has granted clemency only one time, in 2021, to death row inmate Julius Jones, commuting his sentence to life without parole just hours before Jones was scheduled to receive a lethal injection.  Stitt has denied clemency recommendations from the board in two other cases: Bigler Stouffer and James Coddington, both of whom were later executed.

The Sentencing Project releases new report on “System Reforms to Reduce Youth Incarceration”

The Sentencing Project this morning has released this new report titled "System Reforms to Reduce Youth Incarceration: Why We Must Explore Every Option Before Removing Any Young Person from Home." Here is the start of the 25-page report's executive summary:

Well designed alternative-to-incarceration programs, such as those highlighted in Effective Alternatives to Youth Incarceration: What Works With Youth Who Pose Serious Risks to Public Safety, are critically important for reducing overreliance on incarceration.  But support for good programs is not the only or even the most important ingredient for minimizing youth incarceration.

To reduce overreliance on youth incarceration, alternative-to-incarceration programs must be supported by youth justice systems that heed adolescent development research, make timely and evidence-informed decisions about how delinquency cases are handled, and institutionalize youth only as a last resort when they pose an immediate threat to public safety.  In addition, systems must make concerted, determined efforts to reduce the longstanding biases which have perpetuated the American youth justice system’s glaring racial and ethnic disparities in confinement.

This report will highlight state and local laws, policies and practices that have maximized the effective use of alternative-to-incarceration programs and minimized the unnecessary incarceration of youth who can be safely supervised and supported at home.

Alabama officially sets execution date for historic effort to use nitrogen gas for completing death sentence

I have been noting on this blog for at least a decade some of the talk about whether nitrogen gas might perhaps be the best modern execution alternative to lethal injection (see some of the posts below).   But now, as reported in this AP piece, it seems Alabama is actually on track to actually utilize this long-discussed means of completing a death sentence: 

Alabama has set a January execution date for what would be the nation’s first attempt to put an inmate to death using nitrogen gas.  Alabama Gov. Kay Ivey on Wednesday announced a Jan. 25 execution date for Kenneth Eugene Smith using the new method.  Smith was one of two men convicted in the 1988 murder-for-hire slaying of Elizabeth Sennett in northwestern Alabama.

“The execution will be carried out by nitrogen hypoxia, the method previously requested by the inmate as an alternative to lethal injection,” Ivey spokesperson Gina Maiola wrote in an emailed statement.  The statement referenced how Smith’s attorneys noted the state was developing the nitrogen method when fighting previous efforts to execute him by lethal injection.

The announcement of the execution date moves Alabama closer to becoming the first state to attempt an execution by nitrogen gas, although there will be a legal fight before it is used.  Nitrogen hypoxia has been authorized as an execution method in Alabama, Oklahoma and Mississippi, but no state has used it.

Smith’s attorneys on Thursday filed a lawsuit in federal court seeking to stop the execution, saying Alabama was attempting to make their client the “test subject for this novel and experimental method.”  They noted the state tried but failed to execute Smith by lethal injection last year.  The Alabama Department of Corrections called off the execution when the execution team could not get the required two intravenous lines connected to Smith....

A divided Alabama Supreme Court last week granted the state attorney general’s request to authorize Smith’s execution.  It is the responsibility of the governor to set the exact execution date....

Nitrogen makes up 78% of the air inhaled by humans and is harmless when inhaled with proper levels of oxygen. Under the proposed procedures, a mask would be placed over the inmate’s nose and mouth and their breathing air would be replaced with nitrogen, depriving them of the oxygen needed to stay alive.  The nitrogen “will be administered for 15 minutes or five minutes following a flatline indication on the EKG, whichever is longer,” according to the execution protocol.

A few (of many) prior related posts:

• Is nitrogen gas the best modern execution alternative to lethal injection?
• Effective discussion of nitrogen gas as execution method alternative
• Oklahoma embracing nitrogen gas instead of lethal drugs as method of execution
• Examining whether nitrogen gas could be a viable new method for executions 
• "Execution by Nitrogen Hypoxia: The Search for Scientific Consensus"

New Prison Policy Initiative briefing covers "When parole and probation rules disrupt support systems"

Leah Wag of the Prison Policy Initiative has this new briefing titled "Guilty by association: When parole and probation rules disrupt support systems."  Here is how it begins (with links from the original):

For the 3.7 million people on parole or probation in the United States, the very people who can best support their success are often unable to help because of supervision conditions that prohibit them from being in contact.  Individuals reentering their communities on probation or parole often rely on support networks of family and peers who have been through similar reentry experiences.  Though research supports the unique benefits of these social connections, many states actually prohibit people on supervision from this contact, under the false assumption that it will lead people into criminalized behaviors. These “association” restrictions — sometimes called “no-association conditions” — are isolating and costly to those on supervision.  And the stakes are high: Failure to follow association restrictions can result in incarceration.

In prior work on probation and parole, we’ve referred to more widely known, difficult-to-satisfy supervision conditions — like securing employment and paying relentless fees— as examples of why supervision doesn’t “work” for so many people and too often results in incarceration for “technical” violations. In this briefing, we add to this work by compiling the most thorough research and data on association restrictions to date.  We show that, despite their illogical foundations and documented harms, they are imposed on hundreds of thousands of people (and impact many others) at any given time. If states and local jurisdictions truly want people on supervision to succeed, they should acknowledge and ultimately abandon association restrictions.

Research suggests that association-related release conditions are common in parole and probation. These restrictions are relics of antiquated supervision systems that required people under their control to live virtuous lives, “be good,” and associate with “good people.”  They generally prohibit interactions between people on supervision and large swaths of the population, such as those with felony convictions or others on probation or parole.  As a result, people must steer clear of certain places altogether, producing a complex web of prohibited activities and relationships that make it even harder to find housing and work, arrange for transportation, participate in treatment programs, or otherwise succeed in reentry.

Some press pieces reviewing SCOTUS argument in Rahimi Second Amendment case

As previewed in this post, the Supreme Court today heard oral argument in US v. Rahimi to consider how its (new originalist) Second Amendment test applies to the federal criminal firearm prohibition of gun possession by persons subject to domestic violence restraining orders, 18 USC § 922(g)(8).  The 90+ minute oral argument (and its transcript) is available at this link.  As highlighted by the press coverage, most SCOTUS watchers expect the Court to uphold the federal law against a Second Amendment challenge:

From CBS News, "Supreme Court wary of striking down 1994 law protecting domestic violence victims in high-stakes gun case"

From Reuters, "US Supreme Court leans toward allowing domestic-violence gun curbs"

From Vox, "The Supreme Court appears poised to rein in its worst decision on guns"

From The Washington Post, "Court seems likely to allow gun bans for those under protective orders"

Upon listening to the oral argument, I share the view that there seems to be a majority of Justices (and perhaps even all the Justices) who are prepared to rework the Bruen originalist approach to the Second Amendment to uphold the federal criminal firearm prohibition in Rahimi.  But I still found the entire oral argument quite interesting, and I was especially struck by the claim by Rahimi's lawyer that there were no complete criminal bans on the possession of guns by certain people until 1968.  If originalism as a mode of constitutional interpretation really cared about history, that would seem to be a quite significant bit of history for resolving this case.  We shall see in a few months if history and originalism really matters in this context.

Intriguing numbers in latest Gallup polling on US views on the death penalty

Gallup yesterday released this report, headlined "New 47% Low Say Death Penalty Is Fairly Applied in U.S.," which discusses the results of its latest polling about capital punishment views in the United States.  Here is some of the descriptions of the results:

For the first time since Gallup started asking about the fairness of the death penalty's application in the U.S. -- a trend that dates back to 2000 -- more Americans say it is applied unfairly (50%) than fairly (47%). This represents a five-point increase in the percentage who think it is applied unfairly since the prior measurement in 2018.

From 2000 through 2015, between 51% and 61% of Americans thought capital punishment was used fairly in the U.S., but since 2016, readings on the measure have averaged 49%. The latest reading is from Gallup’s annual Crime survey, conducted Oct. 2-23.

Solid majorities of Republicans since 2000 have consistently said the death penalty is fairly applied, including 68% currently. Meanwhile, Democrats have been far less likely to say the death penalty is applied fairly, barely reaching the majority level twice -- in 2005 and 2006. The current 28% reading among Democrats is the lowest for the group, while independents’ 46% reading ties their lowest, from 2000.

Gallup first asked Americans whether they supported the death penalty for convicted murderers in 1936 and found 59% favoring it. With the exception of several readings between 1957 and March 1972, including the record-low 42% in 1966, majorities have supported it since then.

Even after the U.S. Supreme Court ruled the death penalty unconstitutional in June 1972, majorities continued to back it, and after it was reinstated in 1976, public support for it grew, eventually peaking at 80% in 1994. At least 60% of U.S. adults favored capital punishment until 2017, when support dipped below that level. The current 53% of Americans who favor the death penalty is the lowest since 1972, though it is not statistically different from 54% and 55% readings over the past three years.

Partisans' views of the death penalty continue to differ sharply, with most Republicans (81%) and a slim majority of independents (51%) favoring it, but most Democrats (65%) opposing it. The 32% of Democrats who currently support capital punishment for murderers is the lowest in Gallup’s trend. Support for the death penalty in 2023 among independents and Democrats falls well below these groups' recent averages of 60% and 48%, respectively, while Republican support is similar to the 79% average.

A separate question gauging Americans’ opinions of how frequently the death penalty is imposed finds that 39% think it is not used often enough and equal 28% shares saying it is used too often and not enough. This general pattern -- whereby a plurality or majority think capital punishment is not used enough, while smaller percentages are divided between thinking it is used about the right amount or too often -- has been the case since the inception of this Gallup trend question.

US Solicitor General supports SCOTUS review and application of Sixth Amendment rights for key issue for applying Armed Career Criminal Act

A helpful reader made sure I saw a notable Supreme Court filing by the United States in response to a cert petition in an Armed Career Criminal Act (ACCA) case. Specifically, in Erlinger v. US, No. 23-370, a case scheduled to be conferenced by SCOTUS this week, the Solicitor General starts the discussion section of this filing in this way:

Petitioner renews his contention (Pet. 14-18) that the Sixth Amendment requires a jury to find (or a defendant to admit) that predicate offenses were committed on different occasions under the ACCA. In light of this Court’s recent articulation of the standard for determining whether offenses occurred on different occasions in Wooden v. United States, 595 U.S. 360 (2022), the government agrees with that contention. Although the government has opposed previous petitions raising this issue, recent developments make clear that this Court’s intervention is necessary to ensure that the circuits correctly recognize defendants’ constitutional rights in this context. This case presents a suitable vehicle for deciding the issue this Term and thereby providing the timely guidance that the issue requires.

Here is more from the filing:

In Wooden, this Court considered the proper test for determining whether prior convictions were committed on different occasions for purposes of the ACCA.  See 595 U.S. at 364. The government advocated an elements-based approach to determining whether two offenses occurred on different occasions, which it viewed as consistent with judicial determination of a defendant’s ACCA qualification.  See Gov’t Br. at 46, Wooden, supra (No. 20-5279); see also, e.g., Gov’t Br. in Opp. at 5-11, Walker v. United States, 141 S. Ct. 1084 (2021) (No. 205578).  The decision in Wooden, however, rejected the government’s elements-based approach to the different-occasions inquiry. 595 U.S. at 366.

The Court held instead that the inquiry is “holistic” and “multi-factored,” and that “a range of circumstances may be relevant to identifying episodes of criminal activity.” Wooden, 595 U.S. at 365, 369....

In light of the holistic and multi-factored standard adopted in Wooden, the government now acknowledges that the Constitution requires the government to charge and a jury to find beyond a reasonable doubt (or a defendant to admit) that ACCA predicates were committed on occasions different from one another....

It has recently become clear, however, that the courts of appeals will not embrace that analysis without this Court’s intervention. The question presented — which is important to the administration of criminal law — accordingly warrants this Court’s review this Term....

Through both their actions and their words, the courts of appeals have made the need for this Court’s review apparent. The Fourth Circuit’s denial of rehearing en banc — premised on the insufficiency of review by a lower court — means that the underenforcement of defendants’ constitutional rights will persist there.  The Eighth Circuit’s refusal to resolve the Sixth Amendment question, after granting en banc rehearing, suggests that its pre-Wooden precedent is also likely to endure.  And despite more than a year having passed since Wooden, no other circuit has reconsidered its pre-Wooden approach.

Wooden it be nice if SCOTUS would grant cert ASAP in this ACCA case?  Notably, Justice Thomas has suggested that he disagrees with the entire prior-conviction exception to Sixth Amendment rights, so maybe this (little?) ACCA issue could even provide the Court an opportunity to reconsider that (historically suspect) exception altogether.

Council on Criminal Justice’s Crime Trends Working Group releases "Shoplifting Trends: What You Need to Know"

Via email, I received notice of this notable new report released today by Council on Criminal Justice.  The report is titled  "Shoplifting Trends: What You Need to Know November 2023" and was authored by Ernesto Lopez, Robert Boxerman and  Kelsey Cundiff.  Here is part of the report's "Introduction" and "Key Takeaways":

Since shortly after the onset of the COVID-19 pandemic, the Council on Criminal Justice has tracked changing rates of violent and property crime in large cities across the United States. The pandemic, as well as the social justice protests during the summer of 2020 and other factors, have altered the motives, means, and opportunities to commit crimes.

Retail theft, especially organized retail theft, has received extensive media coverage and has caught the attention of policymakers. Dozens of shoplifting and “smash and grab” incidents in a variety of cities have been captured on video and have gone viral on social and mass media. Major grocers, drugstores, and other retail outlets have cited shoplifting as their reason for closing multiple locations and placing goods behind counters and in locked cases. California allocated $267 million in 2023 to a new initiative to combat retail thefts. In June 2023, the House Judiciary Subcommittee on Crime and Federal Government Surveillance held a hearing on incidents of organized retail theft.

Prepared for the Council on Criminal Justice’s Crime Trends Working Group, this report focuses on trends in shoplifting, a subset of retail theft which, in turn, is a subset of overall larceny-theft. The FBI defines larceny-theft as the unlawful taking of property without force, violence, or fraud.

The report looks at shoplifting patterns from before the onset of the COVID-19 pandemic through mid-year 2023. To date, attempts to measure changes in retail theft, including organized retail theft, have relied on retail industry data or have been limited to one state.

The city-specific data included in this report are drawn from open-data sources from 24 cities that, over the past five years, have consistently reported specific shoplifting data. Additional data come from the U.S. Justice Department’s National Incident-Based Reporting Program (NIBRS). The NIBRS data include a sample of 3,812 local law enforcement agencies. The analyses examine the changing frequency of reported shoplifting, trends in other property offenses, changes in the value of stolen goods, offenses that co-occur with shoplifting, and the number of people involved in each incident....

Shoplifting incidents reported to police have rebounded since falling dramatically in 24 large American cities during 2020. But whether the overall tally is up or down compared with pre-pandemic levels depends on the inclusion of New York City. With New York’s numbers included, reported incidents were 16% higher (8,453 more incidents) in the study cities during the first half of 2023 compared to the first half of 2019; without New York, the number was 7% lower (-2, 552 incidents).

New York (64%) and Los Angeles (61%) had the largest increases in reported shoplifting among the study cities from mid-year 2019 to mid-year 2023. St. Petersburg (-78%) and St. Paul (-65%) had the largest decreases.

Comparing the most recent trends, from the first halves of 2022 and 2023, Los Angeles (109%) and Dallas (73%) experienced the largest increases among the study cities; San Francisco (-35%) and Seattle (-31%) saw the largest decreases.

Shoplifting generally followed the same patterns as other acquisitive crimes (except motor vehicle theft) over the past five years, according to the FBI’s national data. But unlike other types of larcenies, shoplifting rates remained below pre-pandemic levels through 2022.

Just a few of many press pieces previewing SCOTUS argument in Rahimi Second Amendment case

Regular readers know that right after the Supreme Court's big 2022 Second Amendment decision Bruen, I have suggested that a number of broad federal criminal firearm prohibitions are now constitutionally suspect (see, eg, early posts here are here).  After Second Amendment challenges started producing mixed outcomes in lower federal courts, SCOTUS finally selected US v. Rahimi to be the first case to adumbrate how Bruen is to be applied to at least one form of federal firearm possession criminalization.   Oral argument in Rahimi is tomorrow morning (Nov 7), and here is a partial round-up of some argument previews from various press sources:

From the New York Times, "Texas Man at Center of Supreme Court Case Says He No Longer Wants Guns"

From Roll Call, "Supreme Court to hear arguments in case that could limit Congress on gun control"

From SCOTUSblog, "Court to hear major gun-rights dispute over domestic-violence restrictions"

From USA Today, "A blockbuster gun rights case lands at the Supreme Court. Here are three justices to watch."

From the Washington Post, "Supreme Court weighs impact of gun ruling on domestic-abuse protections"

A few prior related posts:

• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order
• Some early commentary on SCOTUS Second Amendment review of federal gun prohibition in Rahimi
• Some more commentary on SCOTUS Second Amendment review of federal gun prohibition in Rahimi
• Notable defender amicus briefs submitted in support of Second Amendment claims in Rahimi 

"How Victim Impact Statements Promote Justice: Evidence from the Content of Statements Delivered in Larry Nassar's Sentencing"

The title of this post is the title of this notable new paper now available via SSRN and authored by Paul Cassell and Edna Erez. Here is its abstract:

Whether crime victims should present victim impact statements (VISs) at sentencing remains a subject of controversy in the criminal justice literature.  But relatively little is known about the content of VISs and how victims use them.  This article provides a content analysis of the 168 VISs presented in a Michigan court sentencing of Larry Nassar, who pleaded guilty to decades of sexual abuse of young athletes while he was treating them for various sports injuries.  Nassar committed similar crimes against each of his victims, allowing a robust research approach to answer questions about the content, motivations for, and benefits of submitting VISs. Specifically, it is possible to explore the question of whether (roughly) the same crimes produce (roughly) the same VISs.  The VISs reveal the victims’/survivors’ motive for presenting VISs, their manner of presenting the impact of sexual abuse, their interactions with the sentencing judge and the defendant, and other features of the VISs.  Analyzing the VISs’ contents confirms many of the arguments supporting using VISs at sentencing and challenges some lingering objections to them. The findings support the desirability of VISs for informational, therapeutic, and educational purposes in criminal sentencings.

Were lots of new PRISMs filled in federal court last week as the new § 1B1.13 guideline became law?

The question in the title of this post is mostly designed to try to embrace a new term, PRISM, to refer to federal motions that are typically (and inaptly) called "compassionate release" motions.  Credit goes entirely to Doug Passon, who coins the term in the first part of this latest episode of his Set for Sentencing podcast.  Her explains that PRISM stands for "Prisoner Reduction In Sentence Motion."

Notably, federal law does not anywhere speak of "compassionate release" or making a motion for compassionate release.  Rather, 18 USC § 3582(c)(1)(A) describes the circumstances under which a prisoner can request a judge to "reduce the term of imprisonment."  That statutory section sets forth criteria that are about a lot more than just "compassion," and the US Sentencing Commission's key (and newly amended) guideline, titled "§1B1.13. Reduction in Term of Imprisonment Under 18 U.S.C. § 3582(c)(1)(A)", also addresses many topics that are not simply about "compassion."  Consequently, I see the term "compassionate release" motion to be an inaccurate term, whereas PRISM is an accurate and memorable acronym for the actual filings that prisoners can now bring directly to courts under the FIRST STEP Act.

Sadly, I fear that a long history of use of the term "compassionate release" in this context might mean that PRISM is not likely going to happen (like fetch, I fear).  But if PRISM has any hope to become a new moniker, now would seem to be the right time in light of the US Sentencing Commission's amended guideline officially becoming law on November 1.  As of that day last week, a lot more prisoners, I suspect, had a lot more opportunities to seek a sentence reduction.  I am not sure if anyone is keeping track of new PRISM filings, but I am sure this new guideline story will be worth watching closely under any name.

"Justice by Algorithm: The Limits of AI in Criminal Sentencing"

The title of this post is the title of this new article authored by Isaac Taylor just published online for the journal Criminal Justice Ethics. Here is its abstract:

Criminal justice systems have traditionally relied heavily on human decision-making, but new technologies are increasingly supplementing the human role in this sector.  This paper considers what general limits need to be placed on the use of algorithms in sentencing decisions.  It argues that, even once we can build algorithms that equal human decision-making capacities, strict constraints need to be placed on how they are designed and developed.  The act of condemnation is a valuable element of criminal sentencing, and using algorithms in sentencing — even in an advisory role  — threatens to undermine this value.  The paper argues that a principle of “meaningful public control” should be met in all sentencing decisions if they are to retain their condemnatory status.  This principle requires that agents who have standing to act on behalf of the wider political community retain moral responsibility for all sentencing decisions.  While this principle does not rule out the use of algorithms, it does require limits on how they are constructed.