Sentencing Law and Policy

Unsurprisingly, federal prosecutors content to focus on sentencing rather than a second trial for Sam Bankman-Fried

As reported in this CNBC piece, headlined "Prosecutors say they will not pursue second Sam Bankman-Fried trial," the feds have officially decided it will not seek a second criminal trial for high-profile fraudster Sam Bankman-Fried.  Here are excerpts from a lengthy piece that also previews the upcoming sentencing: 

Prosecutors have decided not to pursue a second trial against disgraced FTX founder Sam Bankman-Fried.  In a note to Judge Lewis Kaplan on Friday, the U.S. government explained that the decision to forego a second set of proceedings had to do with the fact that much of the evidence that would have been presented in a second trial had already been submitted to the Court during Bankman-Fried’s first criminal trial.

In November, following a month’s worth of testimony from nearly 20 witnesses, a jury found the former FTX chief executive guilty of all seven criminal counts against him following a few hours of deliberation.  Prosecutors added that the Court could consider the hundreds of exhibits already entered into evidence during these proceedings when he is sentenced next year.  “Given that practical reality, and the strong public interest in a prompt resolution of this matter, the Government intends to proceed to sentencing on the counts for which the defendant was convicted at trial,” continued the letter to Judge Kaplan.

Bankman-Fried, the 31-year old son of two Stanford legal scholars and graduate of the 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 of FTX and its sister hedge fund Alameda late last year.

The second trial, which had been slated to start in March, addressed an additional set of criminal counts, including conspiracy to bribe foreign officials, conspiracy to commit bank fraud, conspiracy to operate an unlicensed money transmitting business and substantive securities fraud and commodities fraud.

Damian Williams, the U.S. attorney for the Southern District of New York, wrote in the letter to the Court that “a second trial would not affect the United States Sentencing Guidelines range for the defendant, because the Court can already consider all of this conduct as relevant conduct when sentencing him for the counts that he was found guilty of at the initial trial.”

So now, the question of prison time goes to Judge Kaplan.  The sentencing date is March 28 at 9:30 a.m. ET. The FTX founder faces more than 100 years in prison....

In this case, the statutory maximum sentence is around 115 years, but there is a sliding scale for sentencing according to recommended guidelines given the scale of the crimes and the criminal history of the defendant. “I wouldn’t be surprised if SBF spends the next 20 or 25 years of his life in prison,” Renato Mariotti, a former prosecutor in the U.S. Justice Department’s Securities and Commodities Fraud Section, told CNBC.

“The sheer scale of his fraud was immense, he was defiant and lied on the witness stand, and Judge Kaplan had very little patience for his antics while out on bond. He will have more sympathy for the victims than he has for Bankman-Fried,” added Mariotti....  “The federal sentencing guidelines will likely be sky high, but they are just that — guidelines — and the judge is required to consider all of the circumstances surrounding SBF and his offense,” said Mariotti....

Former Assistant U.S. Attorney Kevin J. O’Brien, who specializes in white-collar criminal defense in NYC, thinks Bankman-Fried has the chance at a shorter sentence, telling CNBC, “Since judges have discretion even under the Guidelines, I believe his sentence will be in the 15 to 20 year range.” O’Brien added that given Bankman Fried’s age, he thinks the judge will be inclined to give him a chance to live a full life after his prison term.

Bankman-Fried’s case has been compared with that of Elizabeth Holmes, 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.

But former federal prosecutor Paul Tuchmann tells CNBC that he expects harsher terms for the former FTX CEO, because “the amount of losses that were suffered is simply staggering.” Tuchmann compared Bankman-Fried’s case to that of Bernie Madoff, who was sentenced to 150 years in prison. “Like Madoff, a lot of the losses in this case were small investors. They weren’t all large institutions, which really tends to create a greater pressure for a significant sentence,” said Tuchmann.

In this setting, it seems worth noting, yet again, how federal sentencing rules function to sometimes make jury trials and constitutional jury trial rights inconsequential.  Here, the US Attorney accurately notes that the federal sentencing guideline range will be calculated to produce the exact same recommended sentence with or without a trial and guilty verdict on additional charges. (Indeed, under current federal sentencing rules, even if SBF were acquitted on all counts in a second trial, the guideline calculation could be the same.)  Why bother with a second jury trial if the government can seek and secure punishment, under a lower standard of proof, at sentencing for the first convictions?

Prior related post:

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

Could Prez Biden really push the BOP to advance thousands more motions for compassionate release?

The question in the title of this post is promped by this new New York Times essay authored by Michael Romano titled "How Biden Can Tackle Mass Incarceration."   I recommend the piece in full, and here are excerpts:

As a candidate, Joe Biden said he would substantially reduce the federal prison population as president. Last week he commuted the sentences of 11 people who he said were serving unjustifiably harsh prison terms for drug offenses and also pardoned people convicted of certain marijuana charges.  Still, the number of people in federal prison has grown during the Biden administration.

Despite historical bipartisan support for sentencing reform, Mr. Biden has failed to fully embrace the momentum of his two immediate predecessors, who made substantial efforts to tackle mass incarceration.  Some have argued that his relative inaction on the issue may hurt him among key voting groups.  But it is not too late....

Mr. Biden can chart his own course by taking advantage of a little-used law that allows prison officials to recommend to federal judges that they re-evaluate sentences of people for “extraordinary and compelling reasons.” This can include people who are facing long sentences and have already served many years behind bars, have shown their commitment to rehabilitation and are prepared for release.

This approach, which could be called administrative clemency, is fairer, more transparent, more comprehensive and less politically complicated than traditional clemency. It is in step with reforms percolating through state legislatures that empower law enforcement agencies and judges to revisit old, unnecessarily harsh prison sentences. It also encourages people in prison to work on themselves through education, vocational training, counseling and drug treatment.

Prison officials are ideally situated to make this evaluation. Prosecutors, judges, the police and even defense lawyers tend to move on to other cases and often do not keep tabs on people sent to prison who have been working to rehabilitate themselves and are hoping for some kind of reprieve. But prison officials and staff members work with them daily and follow and chart their progress. The administrative clemency process empowers prison officials to identify suitable candidates for resentencing based on their behavior and rehabilitation. Those cases would be sent back to court, where a judge would make the final determination on whether a person’s sentence should be reduced.

Unlike clemency, this decision is made in open court, with arguments and evidence by prosecutors and defense lawyers. It also allows courts to consider and impose release plans that maximize public safety. Final determinations are made by federal judges with lifetime tenure who are distant from the politics that influence presidential-level decisions. In short, this process returns the case to where it belongs: in court, with all the legal protections, evidence and consideration criminal cases deserve.

While some people may be justifiably wary of investing so much power in prison officials, a similar process is working in California, which is infamous for having some of the country’s harshest sentencing laws and most overcrowded prisons, as well as what may be the nation’s most powerful prison guard lobby.  Over the past six years, under a program begun by Jerry Brown when he was governor, California state prison officials have recommended 2,200 people for sentencing reductions.  Before any candidates are released, they undergo thorough vetting by prosecutors and defense lawyers, and a judge determines whether continued incarceration is no longer in the interest of justice. There is little litigation because after a person is identified and endorsed by prison officials, it becomes clear that the sentence is unnecessarily long and counterproductive....

Administrative clemency, if the Biden administration pursues it, will not correct fundamental flaws in the criminal legal system.  It will not directly address racism, mental illness and bad social science that can be corrected only through comprehensive reform.  But it is something Mr. Biden can do to address thousands of unfair federal sentences without embroiling himself in the politics of clemency or legislation.  And it’s something he can do today.

Regular readers likely know I am a big fan of so-called second-look/compassionate release sentencing mechanisms — which this essay interestingly calls "adminstrative clemency" and which ought to be formally called a "reduction of imprisonment" process in the federal sysetm since 18 USC § 3582(c)(1)(A) speak to when a judge may "reduce the term of imprisonment."  So I really like the general suggestion that Prez Biden and his Administration seek to "address thousands of unfair federal sentences" through this mechanism.  But there are lots of challenging practicalities that make this essay seem a bit like wishful thinking to me.

For starters, Prez Biden's Department of Justice has, in various ways, opposed broad expanstion of sentence reductions under § 3582(c)(1)(A).  Most notably, DOJ officials have testified before the US Sentencing Commission against the approrpiateness of reductions based on changes in the law.  And, even after the USSC decided to authorize sentences reductions based on changes in the law in narrow circumstances, Biden's DOJ is aguing against the lawfulness of the USSC's new guideline terms.  In other words, with lawyers in Prez Biden's Department of Justice being generally oppositional to many sentence reductions, I would not expect them to be supportive of any efforts by the federal Bureau of Prisons to advance more of these motions.

More broadly, the recent activity surrounding sentence reductions under § 3582(c)(1)(A) over the last five years is the result of the FIRST STEP Act allowing prisoners to bring these motions directly to court without needing a filing by federal prison officials.  Congress was moved to allow prisoners to make these filings directly because BOP has long had a notorious record of almost never supporting a sentence reduction even for gravely ill inmates.  As many note, it seems the culture and practice of decision-mkaing by prison officials makes it much more likely that they will oppose requests for sentence reductions than support or advance them.  Perhaps a directive from Prez Biden could somewhat influence BOP culture and practice in this regard, but that seems like an evolution likely to take a long time to materialize.

Finally, though I do not know much about the California experience, sentencing reductions averaging around 370 persons per year in that jurisdiction actually amounts to less than what the federal system is already achieving on a steady basis based largely on prisoner motions.  The US Sentencing Commission's last compassionate release data report indicates that nearly 500 persons in federal prison secured prison-term reductions from July 2022 through June 2023.  (That data report also shows that nearly 5000 federal prisonsers received sentence reductions in less than four years from October 2019 through June 2023, though these numbers are driven by a COVID-era period that saw over 3000 reductions in about 15 months in 2020 and 2021.)  In other words, even without much help from DOJ and BOP, federal prisoners are already seeking, and federal judges are sometimes granting, sentence reductions on a steady basis.

That all said, it would still be great to see both DOJ and BOP become a lot more supportive of federal prisoner motions for sentence reductions.  The USSC data show that for every sentence reduction granted, there are four more that are denied.  Many of those denials, I suspect, are influenced by DOJ and BOP beig oppositional to the reduction.  If there were a way that Prez Biden could direct DOJ and BOP to be less oppositional to sentence reduction efforts, perhaps we would start to see the kind of culture change needed to really create a dynamic and effective corrective to "address thousands of unfair federal sentences."

"Abolish or Reform? An Analysis of Post-Release Supervision for Low-Level Offenders"

The title of this post is the title of this notable new empirical article authored by Ryan Sakoda now available via SSRN.  Here is its abstract:

At year-end 2021, there were nearly four million individuals serving a term of probation, parole, or post-release supervision in the United States.  This paper uses a unique and detailed dataset to study two distinct changes to state law that eliminated and then reinstated post-release supervision for low-level offenders in Kansas.  Each of these changes occurred in very different periods of criminal justice policy (2000 and 2013 respectively), but yielded the same result: post-release supervision caused large increases in reimprisonment with no detectable impact on reoffending.

I find that the elimination of post-release supervision in 2000 decreased the one-year reimprisonment rate of affected individuals by 28.5 percentage points (from a baseline of 35 percent).  In 2013, the reinstatement of post-release supervision caused a 17.5 percentage point increase in reimprisonment (bringing the reimprisonment rate back to approximately 30 percent) with no detectable decrease in reoffending.  Furthermore, I find that the elimination of post-release supervision in 2000 completely closed the racial gap in reimprisonment rates among the impacted individuals.  These results provide support for policies that would reduce the use of community supervision, not only to lower reincarceration rates, but as a promising opportunity to eliminate a major source of racial inequality in the criminal legal system.

Another accounting of the Biden DOJ's capital approach as it approaches a capital decision

The Washington Post has this lengthy new article on the capital punishment work of the Biden Administration's Justice Department.  the full headline highlights the themes: "Garland’s death-penalty record will soon include Buffalo killer decision; President Biden’s attorney general has stopped dozens of death-penalty cases he inherited, but continued two involving mass, hate-fueled killings."  Here are a few excerpts:

The Justice Department is nearing a decision over whether to pursue the death penalty for the White gunman who slaughtered 10 Black people at a Buffalo grocery store last year, a racist attack that could lead to the first new capital prosecution authorized by Attorney General Merrick Garland....

Payton Gendron, 20, faces charges on hate crimes and weapons violations for the May 2022 massacre. He already is serving a sentence of life in prison without parole after pleading guilty to New York state murder charges. Defense attorneys said he would plead guilty to the federal counts if prosecutors forego the death penalty.

Garland’s decision is freighted with political significance over whether he believes capital punishment is a just outcome for perpetrators of the nation’s deadliest mass killings. The attorney general has echoed concerns about the death penalty from civil rights groups and Democrats, including President Biden, who say it disproportionately targets minorities and the poor. But nearly three years into his tenure, Garland has sent conflicting signals about his stance.

Prosecutors this year took two death penalty cases Garland inherited to trial, while the attorney general has withdrawn the department’s intent to seek capital punishment in 32 others that also were filed before he took office. In 2021, he issued a moratorium on actually carrying out federal executions, which remains in place. But the Justice Department continues to aggressively fight appeals from the 40 inmates who are on federal death row.

Outside observers say Garland’s decision in the Gendron case could further clarify whether the Biden administration is closing in on defining a new “worst of the worst” standard, in which the death penalty is reserved for mass killers in an age of increasing acts of domestic terrorism. The two cases that went to trial this year, like the Buffalo case, both involved such crimes.

Justice Department releases fact sheet detailing "Improvements to the Clemency Process"

Via email this afternoon, I got word of this new press release from the Department of Justice titled "Fact Sheet: Justice Department Improvements to the Clemency Process." Here is the full text (with links from the original):

The Justice Department is entrusted with the important responsibility of receiving and reviewing applications for executive clemency and making recommendations to the President in support of his exercise of the constitutional clemency power. In fulfilling this responsibility, the department is committed to improving the clemency application process to make it more transparent, accessible and user-friendly. The department is taking a series of actions to reform and streamline the clemency application process. 

Transparency & Accessibility

• Form Simplification: The Justice Department is updating all of its clemency forms, including web forms, to make them more user-friendly, streamlined and accessible to diverse populations. The improved and simplified application for commutation of sentence is now available here. The revised pardon application form is currently open for public comment.
• Language Access: The Justice Department has translated its revised application forms and informational materials into Spanish and is in the process of making its forms available in other languages as well.
• Partnering with Federal Bureau of Prisons (FBOP): The Office of the Pardon Attorney is working closely with the FBOP to assist incarcerated individuals with the clemency process, including by launching a series of educational seminars for staff and individuals in custody.  In 2023, the Office met with over 1,800 people in FBOP facilities to provide information about applying for clemency.  Additional sessions are scheduled in 2024.

Efficiency

• Reducing Processing Times: The Justice Department is taking steps, including providing additional staffing and technical support for the Office of the Pardon Attorney, to reduce the processing times to ensure that clemency petitioners receive answers in a timely fashion.
• Closing Long-Pending Petitions: The current Administration inherited an unprecedented backlog of clemency petitions.  Soon, the Justice Department will begin issuing letters to petitioners that have not been granted clemency in order to deliver closure to those waiting for answers they deserve.  Those receiving letters are welcome to submit new petitions.

Public Engagement

• Education and Outreach: The department is working to educate the public about how to submit a clemency application in order to demystify the process and help ensure broader and more equitable access.
• Listening Sessions: The department continues to engage with diverse external stakeholders to ensure that it is responsive to the needs of clemency petitioners and the public.

Landlord sentenced for housing code violations given house arrest in problem property

Earlier this month, a creative sentencing story from Ohio got a lot of buzz when a local judge allowed a woman to serve part of her sentence for assaulting a Chipotle employee by serving fast food (details here).  In a somewhat similar vein comes this new creative sentencing story from Ohio, headlined "Cleveland Heights landlord sentenced to house arrest -- in one of his own apartments":

A landlord earlier convicted of ongoing housing code violations began serving a 60-day house arrest Wednesday -- in one of his own apartments.

John Tsironis, 66, with addresses in University Heights and Wexford, Pa., reported Dec. 27 to the Cleveland Heights Municipal Court’s Probation Department in the afternoon to be fitted for an electronic ankle monitor.

On Dec. 12, Tsironis appeared before Judge J.J. Costello, who nine days later revoked probation for violations of the terms of “community control,” including immediate inspections of all 12 apartments in the building at 2744 Mayfield Road in the Coventry neighborhood.

Dozens of violations to the city’s “certificate of occupancy” and “nuisance abatement” ordinances dated back to initial inspections in 2022, with the criminal case for failure to comply filed against Tsironis in January.

Tsironis pleaded no contest to the misdemeanor charge in March, when Costello fined him $1,000, suspending $300 of that.  With court costs, the total penalty came to $875, paid in June.  Costello suspended a 180-day jail sentence.

Under the new terms of his sentencing, Costello imposed the two-month house arrest to remain in effect through Feb. 25.  “The defendant shall be placed on electronic location monitoring, costs of which are to be paid in advance,” the Dec. 21 journal entry states.  “The house arrest shall be served at 2744 Mayfield Road.”

Under the terms, Tsironis will be required to remain in his apartment building between the hours of 9 p.m. and 6 a.m. daily, while “all other conditions of community control remain.”

For a range of (mostly utilitarian) reasons, I tend to be a fan of creative sentences, especially if they do not create greater public safety risks and serve as an alternative to (costly) incarceration.  So, I will not be troubled if there is now a new Ohio creative sentencing trend.

"Victims of Coercive Plea Bargaining"

The title of this post is the title of this new article authored by Lucian Dervan, Vanessa Edkins and Thea Johnson.  Here is its abstract:

The last decade has seen a significant growth in academic research and literature related to coercive plea bargaining. One thread that emerges from this research is how coercive plea practices encourage innocent defendants to falsely condemn themselves, and sometimes even other innocent people to get the benefit of a “good” deal.  This Article compiles and synthesizes this research to highlight how and why typical plea bargaining can lead to false guilty pleas.  It also frames those who falsely plead guilty in the face of coercive bargains and those who are subject to false testimony as a result as victims of plea bargaining.  In this way, we expand our conceptions of who should be viewed as a victim in our current system of pleas more broadly.

The growing realization that coercive plea bargaining leads to many different types of victims reinforces the pressing need for plea bargaining reform that addresses coercive bargaining and false guilty pleas.  To that end, this Article highlights suggestions for reform from a recent report of the ABA Plea Bargain Task Force that address mechanisms for reducing the risks of coercive bargains.

A notable 2023 year in review in two major death penalty states

Florida and Texas have notable histories, both past and moden, in the application of the death penalty.  The year 2023 added to those histories in various ways, as these two recent year-in-review press pieces detail:

From Florida, "Florida’s death penalty faced major change in 2023, caused national impact: After years without executions, Florida carried out six this year — along with laws expanding the state’s death penalty."  An excerpt:

Florida is one of five states that regularly uses the death penalty — and in 2023 the state stood out for its efforts to increase and expand the use of capital punishment. The state’s moves to resume executions after three years, to lower the bar for juries to recommend death sentences and to expand the crimes eligible for death put Florida at the forefront of the issue nationally....

In the spring, lawmakers and Gov. Ron DeSantis changed state law so juries don’t have to be unanimous to recommend the death penalty. The new minimum is a vote of 8-4 for death. Lawmakers also passed a bill making child sex abuse offenses eligible for the death penalty, a change that contradicts U.S. and Florida Supreme Court precedent. Prosecutors in Florida’s 5th Judicial Circuit this month filed the first such charges, and DeSantis has said they have his “full support.”

From Texas, "Texas executions remained low as 8 prison inmates put to death, 2 from Houston area, in 2023."  An excerpt:

Texas' death row population is at its lowest level in decades and fewer defendants condemned to die by Harris County juries are being executed or sent to death row. 

The Texas Coalition to Abolish the Death Penalty said in its annual report that 2023 marked the smallest death row population in more than 38 years, with a third of those coming from Harris County convictions.  As of December, 67 inmates from Harris County remain on death row, according to Texas Department of Criminal Justice records.

The state put to deaths eight people this year — two of whom were from the Houston area. The number of executions was higher than during the pandemic, but lower than the years prior, according to state records.