Sentencing Law and Policy

New CRS explores "When Is a Mandatory Minimum Sentence Not Mandatory Under the First Step Act?"

The Congressional Research Service has this notable new "Legal Sidebar" discussing how the statutory "safety valve" allowing sentences below federal mandatory minimum terms operate.  The four-page document highlights the new legal debates resulting from FIRST STEP Act reforms, and here are excerpts:

Congress created the safety valve for certain drug offenses carrying mandatory minimum penalties after becoming concerned that the mandatory minimums could result in equally severe penalties for both more and less culpable offenders.  The Commission “worked directly with Congress to enact new legislation that would address the impact of mandatory minimum penalties on low-level drug-trafficking offenders.”  These efforts culminated in the first safety valve, which was introduced as part of the Violent Crime Control and Law Enforcement Act of 1994.  Under this statute, to be eligible for the safety valve, a federal judge could impose a sentence below a drug-related mandatory minimum if the federal defendant satisfied five criteria, including not having “more than one criminal history point, as determined under the Sentencing Guidelines.”... The Commission adopted a corresponding Sentencing Guideline provision, allowing for a two-level reduction in the Guidelines offense level based on the same 1994 criteria.

In 2011, the Commission reported to Congress that the safety valve was underinclusive.  The Commission therefore urged Congress to expand the safety valve to encompass “certain non-violent [drug] offenders who receive two, or perhaps three, criminal history points under the [G]uidelines” and “low-level, nonviolent offenders convicted of other offenses carrying mandatory minimum penalties.”...

The First Step Act addressed mandatory minimums in multiple ways.  In addition to reducing the mandatory minimum penalties for certain drug-trafficking offenses, the act expanded eligibility for safety-valve relief to defendants with more significant criminal histories.  Whereas federal defendants with one or zero criminal history points under the Sentencing Guidelines could receive relief under the prior law, the act made drug offenders with minor criminal records eligible for the safety valve provision....

Due to the current judicial divide over the scope of the First Step Act’s safety valve, whether a defendant may receive relief from a mandatory minimum sentence under the act may depend upon the happenstance of geography: a defendant may be disqualified in one circuit when that same defendant might be eligible for relief in a different circuit.  Given that sentencing disparities may appear at odds with the stated statutory policy of promoting consistency and uniformity in federal sentencing outcomes, Congress may wish to consider amending the safety valve to clarify whether the criminal history criteria are disjunctive or conjunctive.

In addition, the Sentencing Commission is exploring revisions to the Sentencing Guideline provision that is analogous to the act’s safety valve: the Commission identified two options under consideration.  One option would not make any change to the Guidelines and thus would permit courts to interpret the Guideline disjunctively or conjunctively.  A second option would adopt the disjunctive approach.  Regardless of which option the Commission approves, Congress always has the opportunity to review and revise any amendments to the Guidelines.

"Against Prosecutors" and a lot of notable responses thereto

I recall reading a few years ago, but maybe not blogging about, I. Bennett Capers provocative 2020 essay titled simply "Against Prosecutors."  Here is part of the essay's introduction:

What would it mean to turn away from public prosecutors and not rely on the criminal justice system as the first responder to address social ills, such as mental illness and poverty (two of the main drivers of our prison industrial complex)?  More radically, what would it mean to turn away from state-controlled prosecution as the primary way to address crime? What would it mean to replace a system where prosecutors hold a monopoly in deciding which cases are worthy of pursuit with a system in which “we the people,” including those of us who have traditionally had little power, would be empowered to seek and achieve justice ourselves?

This Article attempts to answer these questions. It begins in Part I with the enormous, monopolistic power public prosecutors wield.  But this power is not inevitable. Indeed, public prosecutors are not even inevitable. This is the main point of Part II, which surfaces the rarely discussed history of criminal prosecutions in this country before the advent of the public prosecutor, when private prosecutions were the norm and in a very real sense criminal prosecutions belonged to “the people.”  Part II then demonstrates that our history of private prosecutions and the turn to public prosecutions is more than just a curious footnote, as this very history has, in turn, shaped criminal law and justice as we know it. Part III, in many ways the core of this Article, makes the argument for turning away from public prosecutors and restoring prosecution to the people.  It also returns to the question that motivates this Article: what benefits might accrue if victims had the option to pursue criminal charges through private prosecution or public prosecution? Part III argues there would be several benefits, including democratizing criminal justice and, quite possibly, reducing mass incarceration.

This essay is fresh in mind in part because I just saw an on-line symposium in which seven scholars have written their own essays in response (and with the author providing a final word). Here are links to these new works:

Angela J. Davis, "The Perils of Private Prosecutions"

Benjamin Levin, "Victims’ Rights Revisited"

Carolyn B. Ramsey, "Against Domestic Violence: Public and Private Prosecution of Batterers"

Corey Rayburn Yung, "Private Prosecution of Rape"

Jeffrey Bellin, "A World Without Prosecutors"

Jenia I. Turner, "Victims as a Check on Prosecutors: A Comparative Assessment"

Roger A. Fairfax Jr.. "For Grand Juries"

I. Bennett Capers, "Still Against Prosecutors"

Covering at "The Soapbox" some legal issues getting various folks in a lather

At "The Soapbox" section of The New Republic, Matt Ford has some recent coverage of a couple of hot legal issues that I have also been giving considerable attention.  Here are the full headlines, links and a key paragraph:

From last week, "When You’re Sentenced for a Crime That Even a Jury Agrees You Didn’t Commit: The Supreme Court might end an infuriatingly unjust practice in criminal sentencing."

While some lawmakers have proposed fixing the issue through legislation, Congress has yet to pass legislation to restrict or ban it. The U.S. Sentencing Commission is also considering changes to the federal sentencing guidelines that would limit acquitted-conduct sentencing in some forms in federal cases. McClinton told the court that those modest proposals should not prevent it from addressing the underlying constitutional issue, which is much broader and much more urgent. He instead aptly quoted from Scalia’s dissent nearly a decade earlier: “This has gone on long enough.” The court will announce in the coming months whether it will take up the case — and, perhaps, whether it agrees.

From this week, "The Second Amendment’s Legal Landscape Is Getting Weirder: The Supreme Court’s Bruen decision has given rise to some disturbing new interpretations of what constitutes the right to bear arms."

The 6–3 [Bruen] ruling announced a new test for lower courts to apply when reviewing gun laws in general, one that would make it far more difficult for many types of gun laws to survive judicial scrutiny.  The results have been predictable and far-reaching.

Last week, the Fifth Circuit Court of Appeals overturned a federal provision that prohibits people under restraining orders for domestic violence from possessing firearms.  The following day, a federal district court in Oklahoma struck down a similar provision that applied to people who unlawfully use or are addicted to a controlled substance.  The Third Circuit Court of Appeals parted ways with the other courts when it came to the provision’s application to people convicted of felonies.  But even that decision may not be long for this world.

Maine momentum for restoring parole as part of broader focus on rehabilitation

This local article, headlined "Maine legislators push to reestablish parole, citing disparities in criminal justice system," reports on some interesting criminal justice reform developments in the Pine Tree State.  Here are excerpts (with links from the original):

With the release of a comprehensive 240-page report, the return of parole to Maine’s correctional system seems more likely, though still far from a sure thing.

The Maine Legislature’s parole study commission convened last year issued its final report on Jan. 30 that includes an ambitious set of recommendations, though not all received unanimous support.

The commission was an outgrowth of a 2021 bill, LD 842, from then-Rep. Jeff Evangelos (I-Friendship), who proposed reinstating parole opportunities for all those incarcerated in state institutions. 

Maine’s Legislature first established a system of parole in 1913, allowing for an incarcerated person’s sentencing period to be reevaluated by corrections officers after serving a minimum length of time.  Parole was abolished in Maine in 1976.

A unanimous recommendation came for expansion of the existing early release program, which allows inmates with 30 months or fewer of their sentence to serve the remainder in home confinement.... 

Evangelos convinced commissioners to include reinstatement of a weekend furlough program.  “It would allow fathers to get to know their kids, and mothers to hold their children, sometimes for the first time,” he said.

Also gaining strong support was a new Criminal Law Revision Commission, which once made frequent suggestions for legal changes, but lapsed in 2005.

On the critical vote for parole, the commissioners divided 7-2 in favor, with Corrections Commissioner Randall Liberty and Sen. Scott Cyrway (R-Winslow) opposed.  The co-chairs, Sen. Craig Hickman (D-Winthrop) and Rep. Charlotte Warren (D-Hallowell) voted in the majority.  Of the four legislators on the commission, only Hickman is still serving in the same position.  The others were term-limited....

[T]he report concluded that its work “focused primarily on issues surrounding the reestablishment of parole, but parole is only one piece of a much larger conversation . . . The work of this commission is a beginning, not an end.”

The Judiciary Committee that received the report can introduce legislation to adopt its findings. Advocates have already submitted their own bill, LD 178, sponsored by Sen. Pinny Beebe-Center (D-Rockland), a concept draft.

Evangelos said the bill’s language will eventually include full implementation of the commission’s findings, including hearing eligibility for all inmates, and specific victim’s rights provisions.  He’s optimistic about passage of a strong bill, pointing to support from Rep. Billy Bob Faulkingham (R-Winterport), the House minority leader.  “We heard from supporters all over the country,” Evangelos said. “Of the dozens of people who testified, only two were opposed. People want a system that recognizes rehabilitation, and provides hope.”     

"Public support for second look sentencing: Is there a Shawshank redemption effect?"

The title of this post is the title of this new article by multiple authors just published in Criminology & Public Policy.  Here is its abstract

Research Summary

Washington, DC has implemented second look sentencing.  After serving a minimum of 15 years in prison, those convicted of a serious offense committed while under the age of 25 years can petition a judge to take a “second look” and potentially release them from incarceration.  To examine both global and specific support for second look sentencing, we embedded experiments in a 2021 MTurk survey and in a follow-up 2022 YouGov survey.  Two key findings emerged.  First, regardless of whether a crime was committed under 18 years or under 25 years of age, a majority of the public supported second look sentencing.  Opposition to the policy was low, even for petitioners convicted of murder.  Second, as revealed by vignette ratings, respondents were more likely to support release when a petitioner “signaled” their reform (e.g., completed a rehabilitation program, received a recommendation from the warden) and had the support of the victim (or their family).

Policy Implications

The critique of mass imprisonment has broadened from a focus on the level of incarceration to the inordinate length of sentences being served by some prisoners.  Policies are being proposed to reconsider these long sentences and to provide opportunities for earned release.  Second look sentencing in DC is one of these reforms.  Our research suggests that many members of the public believe in a “Shawshank redemption” effect — that those committing serious crimes as a teenager or young adult can mature into a “different person” and warrant a second look, with the possibility of early release if they have earned it.  A key issue is likely to be how much weight is accorded to the preference of victims or their families in any release decision.

Noting the notable challenge of defining "veteran" for various purposes connected to criminal justice systems

I noted in this post some months ago that the Council on Criminal Justice (CCJ) had launched a new national commission to examine why so many military veterans land in jail and prison and produce recommendations for evidence-based policy changes that enhance safety, health, and justice.  That commission just released its first publication, and it addresses issues that I had not really previously given much thought to, namely who should be called a "veteran." 

Specifically, this new publication authored by Evan Seamone and is titled "Who's a Veteran? Challenges in Defining and Identifying Veteran Status."  Here is how it concludes, which serves to spotlight the importance of this basic issue of definition:

How veteran status is defined varies widely across federal and state governments, as well as criminal justice agencies and programs.  While one might assume that the VA has the primary responsibility to define precisely who should be considered a veteran, the definitional standard has been expanded or narrowed through law and policy over time in states and jurisdictions across the nation.  For the most part, differences in the definition are based on the length of military service, the conditions of service, and how an individual was discharged from service.  As a result of this variation and the ambiguity about who qualifies as a military veteran, veterans’ access to benefits, services, and programs in the community, in courtrooms, and within correctional settings like jails and prisons is confusing and constrained.

The plethora of veteran definitions along with the heavy reliance on self-identification within the criminal justice system may discourage former service members from confirming their status when asked. Some clearly make this choice due to stigma and/or a fear of harassment and loss of benefits.

The complexity in defining and identifying veterans means that programs set up to aid those who served our country when they intersect with the criminal justice system are not reaching all who are eligible.  A clear, universal definition of who is a veteran within the criminal justice system and a better process for independently verifying veteran status would address that gap, ensuring that more people who served in the military and become justice involved can access treatments and services addressing the specific challenges they face.  That, in turn, will help advance safety and justice for all.

For those concerned about over-criminalization, the "Case for Legalizing Jaywalking"

I was not aware of the history of the term jaywalking or of the laws criminalizing this behavior.  Thus, I found interesting this new Mother Jones piece fully headlined "The Case for Legalizing Jaywalking: Bans hurt poor people and people of color.  Cities and states are catching on."  I recommend the full piece, but here is a snippet (with links from the original):

If you regularly walk in any American city, you, too, probably have crossed a street against the signal or outside of a designated crosswalk.  Sure, one could argue that crosswalks were created as a way to protect pedestrians from potentially dangerous automobiles.  But why would transgressing those limits become a petty crime?  Thanks to a century-old automobile industry campaign to push pedestrians out of the streets, jaywalking is now, in most places, punishable by a hefty ticket ranging from $68 in Seattle to as much as $250 in New York City.

This could be consigned to the realm of being merely annoying, but in fact, there’s a serious injustice embedded in the process.  According to research in several cities, policing pedestrian behavior disproportionately affects low-income people and people of color.  Plus, making jaywalking an offense doesn’t keep people safe.  Now, a growing number of cities and states are striking these antiquated statutes from their books....

[D]ata from cities across the country show that Black people are routinely cited for jaywalking at higher rates than white people, making their simple act of crossing the street grounds for potentially dangerous police interactions.  In 2017, a sweeping investigation by ProPublica and the Florida Times-Union (republished with permission on Mother Jones) found that Black people received 55 percent of pedestrian tickets in Jacksonville, despite comprising just 29 percent of the city’s population.  Those tickets were also overwhelmingly focused on residents of poor neighborhoods.

The Jacksonville sheriff’s office admitted that enforcement of rules against crossing on a yellow light, crossing outside the crosswalk, or “failing to cross a street at a right angle” were often an excuse to “stop suspicious people and question them for guns and or drugs.”  Critics of jaywalking laws say that that’s part of the problem. 

Though not mentioned in this piece, I could not help but keep thinking of the emerging debate in Second Amendment jurisprudence related to government claims that "nonlawabiding" people are to be excluded from the protections of the Second Amendment.  I doubt many folks would really think the "crime" of jaywalking should lead to losing some protections of the Bill of Rights, but even that possibility is why concerns regarding over-criminalization can often connect to other kinds of concerns about state power and individual rights.

Texas completes its third execution of 2023

As detailed in this AP article, an "inmate convicted of killing three teenagers while they slept in a Texas Panhandle home more than 25 years ago was executed on Wednesday, the sixth inmate to be put to death in the U.S. this year and the second in as many days." Here is more:

John Balentine, 54, who had argued that his trial was marred by racial bias, received a lethal injection at the state penitentiary in Huntsville, Texas, for the January 1998 shooting deaths of Edward Mark Caylor, 17, Kai Brooke Geyer, 15, and Steven Watson, 15, at a home in Amarillo.  Prosecutors said all three were shot once in the head as they slept.

Caylor’s sister was Balentine’s former girlfriend, and prosecutors said the shootings stemmed from a feud between Caylor and Balentine.  Ballentine, however, argued that Caylor and others had threatened his life over his interracial relationship. Balentine is Black.  The three victims were white.

Balentine confessed to the murders.  One of his trial attorneys said Balentine turned down a plea agreement that would have sentenced him to life in prison because the racists threats he received made him afraid of being attacked or killed while incarcerated.

Lawyers were pursuing two legal strategies to save their client before he was executed.  The first was to argue that his trial and sentencing were tainted by racism.  But Balentine was also among five Texas death row inmates who sued to stop the state’s prison system from using what they allege are expired and unsafe execution drugs....

The U.S. Supreme Court on Wednesday declined an appeal from Balentine’s attorneys to halt the execution so that his claims of racial bias could be properly reviewed.

A defense request for Republican Gov. Greg Abbott to temporarily stay the execution also failed and the Texas Court of Criminal Appeals denied a request to stay Ballentine’s execution over allegations that “racism and racial issues pervaded” his trial.  The appeals court denied the stay on procedural grounds without reviewing the merits.

On Wednesday afternoon, the Texas Board of Pardons and Paroles unanimously declined to commute Balentine’s death sentence to a lesser punishment or to grant a 30-day reprieve....

Koda Shadix, the younger brother of Geyer, one of the victims, said in a video posted online last week that he was upset by efforts to delay justice.  Balentine has “shown no remorse and absolutely does not care what he did.  All he cares about is his life,” Shadix said.

Sentencing Project releases "Ending 50 Years of Mass Incarceration: Urgent Reform Needed to Protect Future Generations"

The folks at The Sentencing Project have a new website and a new "featured campaign" (with its own webpage) titled "50 Years and a Wake Up: Ending The Mass Incarceration Crisis In America." As explained on the webpage: "The campaign raises awareness about the dire state of the U.S. criminal legal system, the devastating impact of incarceration on communities and families, and proposes more effective crime prevention strategies for our country."

The most recent publication from the campaign is titled "Ending 50 Years of Mass Incarceration: Urgent Reform Needed to Protect Future Generations."  This eight-page document has a number of graphics and charts; its text begins this way (footnotes removed):

By year end 2021, the U.S. prison population had declined 25% since reaching its peak in 2009.  Still, the 1.2 million people imprisoned in 2021 were nearly six times the prison population 50 years ago, before the prison population began its dramatic growth. The United States remains a world leader in incarceration, locking up its citizens at a far higher rate than any other industrialized nation.

At the current pace of decarceration, averaging 2.3% annually since 2009, it would take 75 years — until 2098 — to return to 1972’s prison population.

It is unacceptable to wait more than seven decades to substantively alter a system that violates human rights and is out of step with the world, is racially biased, and diverts resources from effective public safety investments.  To achieve meaningful decarceration, policymakers must reduce prison admissions and scale back sentence lengths — both for those entering prisons and those already there.  The growing movement to take a “second look” at unjust and excessive prison terms is a necessary first step.  As the country grapples with an uptick in certain crimes, ending mass incarceration requires accelerating recent reforms and making effective investments in public safety.

Another longer document in this campaign was released a few weeks ago and is called "Mass Incarceration Trends." Among other part of that document is a chart highlighting that an era of massively increased incarceration also brought massive increases in community supervision:

As depicted in Figure 3, probation and parole have expanded both in the absolute number and length of supervision for several decades now.  Between 1980 and 2020, the number of people on probation nearly tripled and the number of people under parole supervision nearly quadrupled.

After recent wave of notable rulings, a wave of new Second Amendment commentary

When the Supreme Court's landmark ruling in Bruen recast the Second Amendment entirely around "the Nation’s historical tradition of firearm regulation," I had an inkling that a new originalist jurisprudence might prove quite disruptive to a number of federal criminal laws (see post-Bruen posts here and here).  With recent notable rulings finding unconstitutional the gun possession prohibitions in § 922(g)(3) and § 922(g)(8), I have seen a number of new commentaries discussing Second Amendment jurisprudence after Bruen:

From Law & Liberty, "Implementing Bruen"

From Salon, "Phony constitutional 'originalism' is likely to kill women after Second Amendment decision"

From Slate, "Brett Kavanaugh May Have Quietly Sabotaged Clarence Thomas’ Extreme Gun Ruling"

From The Trace, "Bruen Takes Gun Law Back to a Time Before ‘Domestic Violence’"

From the Washington Examiner, "Reefer madness: Second Amendment gun rights shouldn’t go to pot"

Also, the latest episode of one of my favorite the legal podcasts, Advisory Opinions, takes a deep dive into modern Second Amendment jurisprudence in this pod titled "The Problem With 'History and Tradition'."

Missouri completes its second execution of 2023

As reported in this local article, "Missouri on Tuesday executed 58-year-old Leonard Taylor, who was convicted of killing his girlfriend and her three children at their home in Jennings nearly two decades ago."  Here are more: 

A state executioner delivered a fatal dose of pentobarbital at 6:07 p.m., and Taylor was pronounced dead a short time later, according to the Missouri Department of Corrections....

Taylor was the third person to be executed in Missouri in three months. His death marked only the second time since 2015 that more than one person was executed in a calendar year.

He was convicted in 2008 of killing 28-year-old Angela Rowe and her three children, Alexus Conley, 10, AcQreya Conley, 6, and Tyrese Conley, 5, at their home on Park Lane in Jennings. He has insisted he is innocent of the killings.

Rowe's older sister, Gerjuan Rowe, attended Tuesday's execution along with eight other loved ones. "Justice was served," Rowe said. "Now, I get a little peace."

Rowe and her children were found Dec. 3, 2004. Rowe was covered by blankets and shot four times, once fatally in the head. The children were also shot and lined up on a bed. Prosecutors said they believed the family was shot on the night of Nov. 23 or early morning of Nov. 24, 2004.

Taylor had called his brother just before midnight, then again at 12:05 a.m. Nov. 24, and admitted to the killings. The brother told police Taylor stayed in the house with the bodies because he was waiting for a letter from his wife in California....

A jury sentenced Taylor to death on Feb. 29, 2008, for the four murders.

Taylor had since filed several appeals, including a request last month asking St. Louis County prosecutor Wesley Bell to hold a hearing to review discrepancies in the state's evidence and consider new declarations from Taylor's daughter and her mother saying Taylor was actually in Los Angeles at the time of the killings. Bell denied that request last week, finding "the facts are not there to support a credible case of innocence."

On Monday, Missouri Gov. Mike Parson denied Taylor's petition for clemency. "Leonard Taylor brutally murdered a mother and her three children. The evidence shows Taylor committed these atrocities and a jury found him guilty," Parson said in a statement. "Despite his self-serving claim of innocence, the facts of his guilt in this gruesome quadruple homicide remain."

Pre-gaming the State of the Union with a few White House Fact Sheets talking a bit about crimes and punishment

I may not get a chance to watch Prez Biden's State of the Union address tonight, and I am not really expecting it will cover any big sentencing issues (or small sentencing issues for that matter).  That said, I do expect some crime and punishment matters to get some air time during a speech that likely will make some mention of policing practices and the nation's drug overdose problems.  And my expectations have already been somewhat confirmed even hours before the SotU speech via these releases from the White House:

FACT SHEET: The Biden-⁠Harris Administration’s Work to Make Our Communities Safer and Advance Effective, Accountable Policing

FACT SHEET: In State of the Union, President Biden to Outline Vision to Advance Progress on Unity Agenda in Year Ahead

Here are some items pulled from these "fact sheets" — which, I must say, do not actually read as "fact sheets — that may be of particular interest to sentencing fans:

Investing in Crime Prevention. The President’s Safer America Plan calls on Congress to invest $15 billion in services that help prevent crime from occurring in the first place, including: mental health and substance use disorder services, such as co-responder and alternative responder programs where social workers and other professionals respond to calls that should not be the responsibility of law enforcement; job training and employment opportunities, including for teenagers and young adults; housing and other supportive social services to individuals who are homeless; and reentry services so people leaving prison can stabilize their lives and avoid recidivism.  The Plan also incentivizes the reform of laws that increase incarceration without reducing public safety and lift almost all federal restrictions on eligibility for vital benefits (such as food, income, and disability-based assistance) for people with prior convictions....

Addressing a failed approach to marijuana and crack cocaine. The criminalization of marijuana possession has upended too many lives — for conduct that is now legal in many states. While white, Black and brown people use marijuana at similar rates, Black and brown people are disproportionately in jail for it. In October 2022, the President announced a full, unconditional, and categorical pardon for prior federal simple marijuana possession offenses.  This pardon lifts barriers to housing, employment, and educational opportunities for thousands of people with prior convictions under federal and D.C. law for simple marijuana possession.  The President also called on every state governor to follow his lead, as most marijuana prosecutions take place at the state level.  And because this Administration is guided by science and evidence, he called on the Secretary of HHS and the Attorney General to review how marijuana is scheduled under federal law.

In addition, the Safer America Plan calls on Congress to end once and for all the racially discriminatory sentencing disparity between crack cocaine and powder cocaine offenses — as President Biden first advocated in 2007 — and make that change fully retroactive.  This step would provide immediate sentencing relief to the 10,000 individuals, more than 90 percent of whom are Black, currently serving time in federal prison pursuant to the crack/powder disparity.  As an initial step, the Attorney General has issued guidance to federal prosecutors on steps they should take to promote the equivalent treatment of crack and powder cocaine offenses, but Congress still needs to act....

Beating the Opioid and Overdose Epidemic by Accelerating the Crackdown on Fentanyl Trafficking and Public Health Efforts to Save Lives
Last year, President Biden announced his plan to beat the opioid epidemic as part of his Unity Agenda, because opioid use and trafficking affect families in red communities and blue communities and every community in between.  Under President Biden’s leadership, overdose deaths and poisonings have decreased for five months in a row — but these deaths remain unacceptably high and are primarily caused by fentanyl....  [T]he President will announce in the State of Union that his administration will:...

• Work with Congress to make permanent tough penalties on suppliers of fentanyl.  The federal government regulates illicitly produced fentanyl analogues and related substances as Schedule I drugs, meaning they are subject to strict regulations and criminal penalties.  But traffickers have found a loophole: they can easily alter the chemical structure of fentanyl — creating “fentanyl related substances” (FRS) — to evade regulation and enhance the drug’s impact.  The DEA and Congress temporarily closed this loophole by making all FRS Schedule I.  The Administration looks forward to working with Congress on its comprehensive proposal to permanently schedule all illicitly produced FRS into Schedule I.  Traffickers of these deadly substances must face the penalties they deserve, no matter how they adjust their drugs.

"Climate Homicide: Prosecuting Big Oil For Climate Deaths"

The title of this post is the title of this notable new article now available via SSRN authored by David Arkush and Donald Braman. Here is its abstract:

Prosecutors regularly bring homicide charges against individuals and corporations whose reckless or negligent acts or omissions cause unintentional deaths, as well as those whose misdemeanors or felonies cause unintentional deaths. Fossil fuel companies learned decades ago that what they produced, marketed, and sold would generate “globally catastrophic” climate change.  Rather than alert the public and curtail their operations, they worked to deceive the public about these harms and to prevent regulation of their lethal conduct.  They funded efforts to call sound science into doubt and to confuse their shareholders, consumers, and regulators.  And they poured money into political campaigns to elect or install judges, legislators, and executive officials hostile to any litigation, regulation, or competition that might limit their profits.  Today, the climate change that they forecast has already killed thousands of people in the United States, and it is expected to become increasingly lethal for the foreseeable future.

Given the extreme lethality of the conduct and the awareness of the catastrophic risk on the part of fossil fuel companies, should they be charged with homicide?  Could they be convicted?  In answering these questions, this Article makes several contributions to our understanding of criminal law and the role it could play in combating crimes committed at a massive scale.  It describes the doctrinal and social predicates of homicide prosecutions where corporate conduct endangers much or all of the public.  It also identifies important advantages of homicide prosecutions relative to civil and regulatory remedies, and it details how and why prosecution for homicide may be the most effective legal remedy available in cases like this.  Finally, it argues that, if our criminal legal system cannot focus more intently on climate crimes — and soon — we may leave future generations with significantly less for the law to protect.

"We Can Ensure Public Safety And Still Reduce Incarceration"

The title of this post is the title of this new Law360 piece authored by Jeffrey Bellin.  The full piece is worth a full read (in part to see citations for various claims), and here are excerpts:

Between 1982 and 2010, the total amount spent by states on incarceration, including parole and probation, rose from $15 billion a year to $48.5 billion annually.  Between 1980 and 2013, annual federal corrections spending grew from under $1 billion to almost $7 billion.

That's why reducing jail and prison populations shouldn't be controversial.  It is mass incarceration that is the radical, expensive and unproven government policy.  And it is a policy that the country chose largely by accident.  In the early 1970s, this country's incarceration and crime rates were low and unremarkable. Then, a temporary crime spike spurred a new age of bipartisan penal severity....

There is, in fact, little correlation between violent crime and harsh or lenient criminal justice policies.  Understanding the past — and the unnecessary choices that this country made in response to the 1970s crime spike — is the best hope for a different future.

Sexual violence, armed robberies and murders were all serious crimes prior to the 1970s and were vigorously prosecuted.  But that's where the similarities between past and present end.  We didn't use to arrest, much less prosecute, so many drug offenders. We didn't use to hold so many people in jail prior to trial.  We used to sentence people to shorter prison terms.  And we relied on parole boards to let people out of prison, ensuring that prisons did not, as now, fill with the sick and elderly....

We used to be better at preventing violence and better at solving serious crimes, probably because that is where law enforcement focused its resources.  The people who suffer the brunt of violent crime typically embrace that focus — and their cooperation is a key factor in reducing crime.

When the police are viewed as working to solve and prevent serious violent crimes, the community turns out to support those efforts.  But if officers are viewed as arbitrary, incompetent and worse, the witnesses they rely on to help solve serious crimes become less likely to volunteer information.

While it is important to focus on reducing violent crime, there is no evidence that reembracing the policies that fueled mass incarceration will do that.  Those policies may even prove counterproductive.  For example, a December 2021 study from the Cato Institute found that certain prosecutions actually increased, rather than decreased, the likelihood of future crime.

We should put aside tough-on-crime rhetoric and focus on preventing violence in more promising ways, like those offered by the Council on Criminal Justice's Violent Crime Working Group to prevent gun violence before it happens.

The emerging resistance to criminal justice reforms illustrate not the merit of tough-on-crime policies, but the stubborn rhetorical appeal of the policies that fuel mass incarceration.  These policies are everywhere, the result of countless changes to local, state and federal laws and processes that emerged over decades.  A few of those changes targeted the violent crimes that grab the headlines, but most did not.

This complexity means that while there is no silver-bullet solution to our overreliance on incarceration, we can continue to reduce prison and jail populations without threatening public safety.

Our current incarceration rate — over 500 incarcerated per 100,000 people — still far exceeds our long-standing historical rate of around 100 per 100,000, as well as the incarceration rates of other, lower-crime countries, including England, France, Germany and Japan.  As our own history and the much lower incarceration rates around the world reveal, we do not need to choose between less violence and less incarceration.  We can have both.

UPDATE: Thanks to social media, I just saw that Keith Humphries authored a similar commentary just published in the Washington Monthly.  The full title of this new piece highlights its themes: "Violent Crime and Mass Incarceration Must be Tackled Together: Conservatives and liberals need to hear each other for us to become a low-crime, low-incarceration society. There are policies that can help." Here is the commentary's closing paragraph:

At the risk of sounding like I’m to break out into the chorus of Kumbaya, there is a rational way forward for both sides to move America into the low-crime, low-incarceration quadrant populated by most other developed nations.  This would require the tough-on-crime camp to give up on the idea that more incarceration will reduce violence and the anti-incarceration camp to stop minimizing violent crime in America.  (“It was worse in the 1980s,” a familiar refrain, is of no comfort to today’s grieving families of murder victims.)  Instead, both sides could rally around the range of health (e.g., expanding Medicaid), law enforcement (e.g., focused deterrence), and tax policies (e.g., raising the price of alcohol) that have good evidence of reducing violent crime, which in turn will reduce incarceration.  This policy agenda will require a broad coalition.  The first step towards that is for everyone in the debate to recognize that the people they’ve been yelling at have a good point, too.

A number of notable capital punishment stories to start the week

I have seen so many notable new press stories about capital punishment issues, I concluded this round-up of headlines and links would be the only way to keep up:

From the AP, "Spiritual advisers offering final comfort in execution rooms"

From the AP, "Florida could end unanimous jury requirement for executions"

From the Kansas City Star, "‘Intolerable injustice’: Innocence Project calls for halt to Missouri man’s execution"

From the Pittsburgh Post-Gazette, "Shapiro must decide whether and how to keep Wolf's death penalty moratorium in place"

From the UPI, "Death row inmate's attorneys called sentence 'justifiable lynching' in 1999 hearing"

From WFLA, "Steven Lorenzo requests death penalty in double murder case"

From WIBW, "ACLU to try Kansas death penalty in multi-day Wichita hearing"

Federal judge declares federal law criminalizing marijuana users from gun possession violates Second Amendment

In a post last summer right after the Supreme Court's landmark Second Amendment ruling, I wondered "Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?".  In that post, I flagged the notably broad provision of federal firearms law, 18 U.S.C. § 922(g)(3), which categorically criminalizes any gun possession by anyone who is an "unlawful user of or addicted to any controlled substance."  I also noted that, in an era in which marijuana use is legal for medical or recreational use in the vast majority of states but still is federal prohibited, this broad federal criminal "unlawful user" gun dispossession statute could function to criminalize the behaviors of tens of millions of gun-owning Americans.

As detailed in this Reuters article, at least one federal judge had decided that the answer to my query is yes, § 922(g)(3) is constitutionally problematic.  Here is how the article describes the ruling: 

A federal law prohibiting marijuana users from possessing firearms is unconstitutional, a federal judge in Oklahoma has concluded, citing last year's U.S. Supreme Court ruling that significantly expanded gun rights.  U.S. District Judge Patrick Wyrick, an appointee of former Republican President Donald Trump in Oklahoma City, on Friday dismissed an indictment against a man charged in August with violating that ban, saying it infringed his right to bear arms under the U.S. Constitution's Second Amendment.

Wyrick said that while the government can protect the public from dangerous people possessing guns, it could not argue Jared Harrison's "mere status as a user of marijuana justifies stripping him of his fundamental right to possess a firearm."  He said using marijuana was "not in and of itself a violent, forceful, or threatening act," and noted that Oklahoma is one of a number of states where the drug, still illegal under federal law, can be legally bought for medical uses.

"The mere use of marijuana carries none of the characteristics that the Nation's history and tradition of firearms regulation supports," Wyrick wrote. Laura Deskin, a public defender representing Harrison, said the ruling was a "step in the right direction for a large number of Americans who deserve the right to bear arms and protect their homes just like any other American."

The full opinion in this case from Judge Wyrick, which runs 54 pages with nearly 200 footnotes, is available at this link.  I am inclined to expect that the US Justice Department will plan to appeal this decision to the Tenth Circuit, and Judge Wyrick's thorough opinion will surely give litigants on any appeal and perhaps elsewhere in the country a lot of chew on.

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen
• 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
• Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 
• En banc Third Circuit to reconsider constitutionality of § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 

US Representatives create new "Bipartisan Second Chance Task Force"

I was intrigued and pleased to come across this press release from this past week discussing a new bipartisan group of Representative working on an important criminal justice issue.  Here are the details:

Representatives David Trone (D-MD), John Rutherford (R-FL), Kelly Armstrong (R-ND), and Lisa Blunt Rochester (D-DE) announced the creation of the Bipartisan Second Chance Task Force in an effort to promote policies that will improve reentry outcomes and reduce employment barriers for returning citizens.  At the time of its launch, the Task Force comprised of 26 Members of Congress (13 Democrats and 13 Republicans).

During its inaugural event, members and co-chairs were joined by Federal Bureau of Prisons (BOP) Director, Colette Peters, and Acting Head of National Institute of Corrections, Alix McLearen, for an introductory briefing on the challenges that the BOP faces in establishing and maintaining successful reentry programming.

Over 600,000 individuals are released from state and federal prisons every year in the United States, and recent studies show that formerly incarcerated people are currently unemployed at an average rate of over 27 percent.  The new task force aims to address these barriers to successful reentry by developing and promoting reform policies in Congress and hosting monthly roundtable discussions.

“Returning citizens continue to face hurdles that prevent them from rebuilding their lives and becoming productive members of society. After paying their debts to society, they are effectively shut out of housing, employment, financial support – you name it.  This isn’t fair, and this isn’t right,” said Congressman Trone.  “As a businessman, I know firsthand that there is a lot of value in hiring returning citizens and giving folks a second chance.  I’m proud to co-found and co-chair the Bipartisan Second Chance Task Force so that we work together – Republicans and Democrats – to address the problems in our criminal justice system head-on, and provide returning citizens with the resources they desperately need.”

“As a lifetime member of law enforcement, I saw firsthand how difficult it can be for those leaving our jails and prisons to re-enter society.  From getting an ID to finding a job, stable housing, and healthcare, these individuals face many barriers to success after incarceration. When I was sheriff, I created a robust reentry program in Northeast Florida, and I look forward to continuing that work in Congress.  Helping the formerly incarcerated become productive members of society makes our communities safer and reduces the number of repeat offenders.  That’s not being soft on crime, that’s being smart on crime,” said Congressman John Rutherford.  “I look forward to working with Representatives Trone, Armstrong, and Blunt Rochester, and all of my colleagues on the Second Chance Task Force, to support those reentering society and reduce recidivism.”...

Other Members of Congress in the Task Force include Bonnie Watson Coleman (D-NJ), Nancy Mace (R-SC), Danny Davis (D-IL), G.T. Thompson (R-PA), Barbara Lee (D-CA), Guy Reschenthaler (R-PA), Mary Gay Scanlon (D-PA), Stephanie Bice (R-OK), Dan Goldman (D-NY), Barry Moore (R-AL), Paul Tonko (D-NY), Rick Crawford (R-AR), Glenn Ivey (D-MD), Anthony D’Esposito (R-NY), Ann McLane Kuster (D-NH), David Rouzer (R-NC), Brittany Pettersen (D-CO), Randy Weber (R-TX), Wiley Nickel (D-NC), Dan Meuser (R-PA), Susan Wild (D-PA), John James (R-MI).