Sentencing Law and Policy

A more detailed accounting of Jan 6 riot sentencings

In this post yesterday, I noted a new New York Times review and accounting of the prosecutions of January 6 rioters three years after their misdeeds.   A helpful reader alerted me to this new Washington Post piece which provides an even more detailed accounting of sentencing outcomes for this large group of federal defendants.  The WaPo piece is headlined "Most Jan. 6 defendants get time behind bars, but less than U.S. seeks," and here are excerpts from a lengthy article worth reading in full:

Judges have ordered prison time for nearly every defendant convicted of a felony and some jail time to about half of those convicted of misdemeanors.

But in the vast majority of the more than 700 sentencings to date, judges have issued punishments below government guidelines and prosecutors’ requests. Though more than 60 percent of the defendants sentenced so far have received jail or prison terms, the judges have gone below federal sentencing guidelines in 67 percent of the cases, Post data shows. Nationally, federal judges go below the advisory guidelines about 51 percent of the time, according to federal statistics....

Sentencings greatly increased in 2023, with nearly 370 defendants sentenced in one year, after less than 360 were sentenced in the previous two years. And the percentage of people receiving terms of incarceration increased from 56 percent to 64 percent as more serious felony cases were completed.

For those charged with lesser misdemeanors, about half received a jail sentence averaging 58 days, while about a third received probation and 18 percent were ordered to spend time in home confinement. The incarceration rate for Jan. 6 misdemeanants is higher than for other federal misdemeanants because it came in the context of a mob assault that helped make the breach possible. For those convicted of felonies, 94 percent were ordered behind bars, a consistent rate every year.

Of 244 felony sentencings for all charges, the average sentence has been 41 months, or about 3½ years, The Post’s data shows. For those who pleaded guilty, the average felony sentence is now about 2½ years, but those who were convicted at trial received an average of 5 years in prison....

The average sentence for those convicted of assaulting a police officer is more than 45 months, The Post’s data shows. The average sentence for those convicted of obstructing an official proceeding has been 39 months. Nearly 400 defendants have been placed on probation, either as their full sentence or after their incarceration, for periods that extend beyond this November’s presidential election....

The sentencings by the 15 judges appointed by Democratic presidents are not much different from the nine appointed by Republicans. Those appointed by Democrats have imposed jail or prison sentences in 65 percent of the cases, compared with 63 percent of cases sentenced by Republican appointees, according to Post data....

Four Trump appointees have imposed incarceration in 57 percent of cases, compared with 67 percent for nine Obama appointees and three George W. Bush appointees. Three Biden appointees have imposed jail or prison only 20 percent of the time, but they have heard only 30 cases and four felonies. Only one active judge has sent every single defendant to jail or prison: Tanya S. Chutkan, the judge handling the D.C. prosecution of Trump, has ordered all 39 of her defendants behind bars.

Two new papers examining administrative law issues around USSC's new sentence reduction guideline

Jaden Lessnick has posted to SSRN recently two notable new papers discussing administrative law issues related to the US Sentencing Commission's recent amendment to USSG § 1B1.13, the sentence reduction policy statement. Here are the titles, links and part of the abstracts of these pieces:

"Will Federal Compassionate Release Survive the Death of Chevron?"

This Essay charts an alternate path forward. It offers a theory of compassionate release untethered from the comfortable reliance on Chevron.  By parsing the statutory text and tracing the Court’s Sentencing Commission jurisprudence, this Essay shows why the policy statement binds federal courts even in the absence of Chevron deference.  On this theory, Chevron has only ever been a secondary justification for the application of the recent policy statement.  Whether Chevron lives or dies, courts are duty-bound to yield to the Commission’s determination that some changes in the law are extraordinary and compelling reasons for a sentence reduction.

"Is U.S.S.G. § 1B1.13 an Elephant, and Is § 994(t) a Mousehole? Why the Sentencing Commission’s New Compassionate Release Policy Statement Does Not Violate the Major Questions Doctrine"

This Article debunks the recent suggestion by many that the Commission’s updated compassionate release policy statement violates the major questions doctrine.  After describing the status quo lay-of-the-law, this piece proceeds through the text and statutory history of the sentence-reduction statutes to show why § 1B1.13’s changes-in-the-law provision is unlike the actions invalidated in the Court’s recent major questions cases, such as West Virginia v. EPA and Biden v. Nebraska.  Though the amended policy statement has been the source of recent political controversy, this Article shows that the policy statement actually reflects a narrowing of the Commission’s historical authority.  It concludes by confronting the nascent split among the Court’s conservatives on the status of the major questions doctrine’s clear-statement rule, contending that under either view, the Commission’s actions had clear congressional authorization.

Recapping the state of Jan 6 riot prosecutions and sentences at three-year mark

The New York Times gets a slight jump on the three-year anniversary of the Jan 6 riot with this new piece headlined, "The Jan. 6 Riot Inquiry So Far: Three Years, Hundreds of Prison Sentences."  Here are some excerpts:

Nearly three years after a mob attacked the Capitol on Jan. 6, 2021, in support of former President Donald J. Trump, the criminal investigation into the events of that day pushes on. Prosecutors have called the riot inquiry the largest in the history of the Justice Department, and there is no doubt it is vast by any measure.

Every week, a few more people are arrested. As of December, about 1,240 people had been arrested in connection with the attack, accused of crimes ranging from trespassing, a misdemeanor, to seditious conspiracy, a felony. More than 350 cases are still pending.

Around 170 people have been convicted at trial, while only two people have been fully acquitted. Approximately 710 people have pleaded guilty and among those, around 210 pleaded guilty to felony offenses.

After being convicted or pleading guilty, more than 720 people have received sentences so far and more than 450 of them were sentenced to periods of incarceration, ranging from a handful of days to more than 20 years....

While some of the cases have attracted nationwide attention, particularly those involving far-right groups like the Proud Boys and the Oath Keepers militia, most of the prosecutions have flown beneath the radar, unfolding in quiet hearings often attended only by the defendants and their families. These proceedings have helped to flesh out the story of how an angry crowd of Mr. Trump’s supporters, egged on by his lies about a stolen election, stopped the democratic process, if only for several hours.

The bulk of the riot cases, more than 710, were resolved without trial through guilty pleas.  As of the Justice Department’s latest update in December, about 170 people have gone to trial in Federal District Court in Washington, in front of either a jury or just a judge, with a vast majority resulting in convictions.

As for punishment, more than 450 people have been sent to jail or prison, with the longest term so far being the 22-year sentence imposed on Enrique Tarrio, the former leader of the Proud Boys. Several people who were not associated with extremist groups but who assaulted the police in what officers have described as a “medieval” battle outside the Capitol have been sentenced to a decade or more behind bars....

One of the most common charges used against rioters has been entering or remaining in a restricted federal building or grounds. More than 1,100 have faced that count.

About 450 people have been charged with assaulting or impeding law enforcement officers at the Capitol, and about 330 have been accused of obstruction of the certification of the election that was taking place inside the building on Jan. 6. But the Supreme Court recently announced that it was going to review the obstruction charge to see if it should apply to the Capitol attack.

"Acquitted But Not Free: How Sentencing Based on Acquitted Conduct Undermines the Jury’s Purpose"

The title of this post is the title of this new student comment authored by Ethan Evans and now available via SSRN.  Here is its abstract:

Acquitted conduct sentencing is a controversial practice that allows judges to increase a defendant's sentence based on facts tried before a jury and not found beyond a reasonable doubt.  This practice undermines the effect of an acquittal, the right to a jury trial, and due process of law.  In 1997, the Supreme Court authorized this practice under a double jeopardy challenge in United States v. Watts.  However, the Court refused to hear the drastic consequences of that decision earlier this year in 2023.  In McClinton v. United States, the district court increased a defendant’s sentence from a range of five to six years to almost twenty by finding he was responsible for murder, a charge explicitly rejected by the jury.  The Supreme Court declined to hear the issue, despite recognizing the serious constitutional concerns, stating that the proper avenue for change is the United States Sentencing Commission.  While an amendment to the United States Sentencing Guidelines may discourage the practice, an absolute prohibition on acquitted conduct sentencing is needed.

This comment outlines the problems with acquitted conduct sentencing under the Sixth Amendment’s right to a jury trial and the Due Process Clause of the Fifth and Fourteenth Amendments. Looking at the possible avenues for change, this comment critiques the United States Sentencing Commission’s newly released draft amendment restricting the use of acquitted conduct.  While the current draft amendment would limit the use of acquitted conduct to rare instances where a departure may be necessary, an absolute prohibition is required to uphold respect for a jury’s acquittal.  This is because the purpose of the jury, as envisioned by the founders, was to protect against the government unjustly depriving an individual of liberty.  Thus, a judge cannot increase a criminal penalty where the jury explicitly refuses to authorize punishment, without superseding their role as a guard against the government.

Notable review of how deaths in federal prisons are categorized and investigated

NPR has this extended investgation report headlined "There is little scrutiny of 'natural' deaths behind bars."  I recommend this piece in full, and here are excerpts:

Kesha Jackson was preparing for her husband, John, to be home in a few weeks.  He was incarcerated in Forrest City federal prison in Arkansas, awaiting a court hearing for early release after 18 years.  But then Jackson got a concerning call from other inmates.

Her husband, in the special housing unit, was going in and out of consciousness, the inmates told her.  He tried banging on the door for help.  Three days later, an officer handcuffed him and tried to give him CPR. He died soon after.  And as she waited for some explanation, Jackson was surprised to learn what prison officials pronounced as the manner of death: "natural."

By deeming the death natural, prison authorities were not required to conduct an autopsy for Jackson's death. It's how they characterize at least three-quarters of all federal prison deaths since 2009, yet NPR has found "natural" deaths with details that raise questions for family members....

MRSA is a staph infection — caused by a type of dangerous, drug-resistant bacteria. But it is not generally fatal if treated immediately. John contracted it after he was moved to the Forrest City federal prison in 2017.  According to his medical records, he still had the infection over two years later.  "Saying that it's a natural death can sometimes be misleading because I believe that having the proper medical treatment could have possibly saved his life," Jackson said.

The CDC says natural deaths happen either solely or almost entirely because of disease or old age.  Yet 70% of the inmates who died in federal prison the last 13 years were under the age of 65.  After speaking to some of the families of these inmates, NPR found that potential issues such as medical neglect, poor prison conditions and a lack of health care resources were left unexplained once a "natural" death designation ended hopes of an investigation. Meanwhile, family members were left with little information about their loved one's death....

The Office of Inspector General for the Bureau of Prisons recently launched an investigation into all non-natural federal inmate deaths in custody from 2014 to 2021.  Natural deaths are not included in this investigation.

But NPR spoke with multiple families of inmates who died natural deaths who believed their loved one's death warrants scrutiny.  For instance: an inmate in a prison medical center in Springfield, Mo., waited weeks to be treated for bleeding in his digestive tract.  He died soon after hospitalization.  An inmate in Arkansas complained of stomach pain for a year and a half before his death. His family was not provided with any more details.

Framing how holiday federal clemencies should be remembered after the holidays

As noted in this post, Prez Biden used his clemency pen in notable ways on the Friday just before Christmas. To kick off the new year, Rachel Barkow and Mark Osler have this new Hill commentary that seeks to frame what's really memorable and important about his latest actions. The piece's headline, "Biden’s marijuana clemency grants are a small present in a big box," captures on of its themes. Here are excerpts from a piece that should be read in full:

Most of President Biden’s Dec. 22 grants of clemency were a small gift in a big box. His claim to “have exercised my clemency power more than any recent predecessor has at this point in their presidency” is pure hyperbole, but underneath might be the seed of a truly significant movement towards more meaningful uses of federal clemency.

President Biden’s clemency grants covered two categories.  The first was in the big box.  It was his extension of an earlier categorical pardon that covers people convicted of simple possession or use of marijuana, or “attempted simple possession of marijuana,” including those convicted in the District of Columbia and on federal lands.

Biden’s original announcement of this categorical pardon last year came with great fanfare. It got lots of favorable press.  But underneath all the gift wrapping and tissue paper, there is not much there. Not a single person was released from prison as a result of Biden’s proclamation.  There is a popular conception that many people are moldering away in federal prisons for simply having some marijuana.  This just isn’t true and hasn’t been for decades....

It is the second category of grants from Dec. 22 that holds the promise of significant clemency relief.  President Biden commuted the sentences of 11 people who were serving extraordinarily long sentences for nonviolent drug distribution offenses. Four of the people were serving life sentences and all but one of the others were serving sentences of 20 years or more.

Eleven grants from a backlog of more than 16,000 clemency petitions waiting for action is hardly grounds for applause. But sometimes big things come in small packages.  These are exactly the kinds of cases that President Biden should be focused on. They might not get the press of the big marijuana proclamation, but these are the cases where clemency really matters. Unjust sentences that should have never been issued will be corrected as a result of those 11 grants. Eleven human beings will be released from prison.

Chief Justice briefly mentions sentencing in AI discussion in his annual year-end report

The Chief Justice of the United States always closes out a calendar year by releasing a year-end report on the federal judiciary.  The 2023 version of this report has an intriguing disquisition on the Federal Judiciary's "steps into the modern era of information technology."  The whole essay is worth a read, and here are snippets:

As 2023 draws to a close with breathless predictions about the future of Artificial Intelligence, some may wonder whether judges are about to become obsolete.  I am sure we are not — but equally confident that technological changes will continue to transform our work....

At its core, AI combines algorithms and enormous data sets to solve problems.  Its many forms and applications include the facial recognition we use to unlock our smart phones and the voice recognition we use to direct our smart televisions.  Law professors report with both awe and angst that AI apparently can earn Bs on law school assignments and even pass the bar exam. Legal research may soon be unimaginable without it....

Many professional tennis tournaments, including the US Open, have replaced line judges with optical technology to determine whether 130 mile per hour serves are in or out.  These decisions involve precision to the millimeter.  And there is no discretion; the ball either did or did not hit the line.  By contrast, legal determinations often involve gray areas that still require application of human judgment.

Machines cannot fully replace key actors in court.  Judges, for example, measure the sincerity of a defendant’s allocution at sentencing.  Nuance matters: Much can turn on a shaking hand, a quivering voice, a change of inflection, a bead of sweat, a moment’s hesitation,a fleeting break in eye contact. And most people still trust humans more than machines to perceive and draw the right inferences from these clues.

In addition to notable tech talk, the 2023 year-end report includes federal court caseload data in an appendix.  Here are some data excerpts that might interest federal criminal justice fans:

Criminal appeals were down three percent from the prior year to 9,649....  Prisoner petitions accounted for 23 percent of appeals filings (a total of 9,089), and 87 percent of prisoner petitions were filed pro se, compared with 36 percent of other civil filings....

The federal district courts docketed 66,027 criminal defendant filings (excluding transfers) in FY 2023, a reduction of three percent from the prior year.  The largest categories were filings for defendants accused of immigration offenses, which increased three percent to 19,645, and filings for defendants charged with drug offenses, which fell 8 percent to 18,103....

A total of 122,824 persons were under post-conviction supervision on September 30, 2023, a decrease of less than 1 percent from the prior year.  Of that number, 110,112 were serving terms of supervised release after leaving correctional institutions, an increase of less than 1 percent from FY 2022.  Cases activated in the pretrial services system, including pretrial diversions, fell three percent to 71,297.

That was the year that was: a few thoughts on crime and punishment in 2023

I am quite certain I cannot provide a truly thorough or fully thoughtful review of 2023 in crime and punishment and sentencing in the United States.  But I can flag a few matters that, at least for a law professor like me, helped to define the year that was in this legal space.  (And, of course, I savor any excuse to parrot language from my favorite commedy album.  The first track from that album remains depressingly timely.)  So here goes as I provide an abridged review the year that was:

Indictments and more indictments: Though we have not reached sentencings or even convictions in big cases, lots of indictments of lots of high-profile political figures have been the biggest on-going legal story and saga of 2023.  Of course, the four indictments of former Prez (and leading Prez candidate) Donald Trump serve as the central part of this remarkable story.  And Trump's many indictments certainly have shaped various political realities this year, and lower court legal developments in these cases have already starting reaching SCOTUS.  The various indictments and machinations of other notable political figures like Hunter Biden and George Santos (and Trump's co-defendants) would surely be seen as masive stories in 2023, but for everything seeming small in Trump's shadow.  

After years of increases, crime now in historic decline: Though the particulars and reasons are still debated, it is without debate that 2020 to 2022 brought significant increases in crimes in the US.  But 2023 finally saw an encouraging turn around, and here are a few press pieces and substacks that helps to capture these encouraging realities:

• From ABC News, "It is historic': US poised to see record drop in yearly homicides despite public concern over crime"
• From NBC News, "Crime in almost every category went down across U.S. in 2023, FBI reports"
• From Jeff Asher, "Crime in 2023: Murder Plummeted, Violent and Property Crime Likely Fell Nationally: These trends stand in sharp contrast with polling showing 3 in 4 Americans think crime rose this year"
• From John Roman, "Why did crime decline in 2023?  Because local government went back to normal"

Second Amendment jurisprudence finally impacting criminal enforcement: Though we are a full 15 years since the Supreme Court in Heller first formally determined that individuals have an enforceable constitutional right to keep and bear arms under the Second Amendment, lower courts long found various ways to uphold just nearly all broad laws creating criminal prohibitions on certain individuals keeping and bearing arms.  But in mid 2022, the Supreme Court recast Second Amendment jurisprudence around originalist principles via its ruling in Bruen, and courts throughout much of 2023 starting striking down an array of criminal gun prohibitions.  Most notably, a number of lower federal courts found a number of provisions of federal law criminally prohibiting gun possession by certain persons unconstitutional.  One case on this front, Rahimi, is pending before SCOTUS and oral argument suggested the Justices are disinclined to agree with the Fifth Circuit's view that a criminal bar on gun posession by those subject to domestic violence restraining orders is unconstituional.  But exactly how Rahimi gets resolved is sure to have a huge impact on a range of other gun laws in the months and years ahead.    

Major guideline reforms from fully loaded US Sentencing Commission:  Though the US Sentencing Commissioner finally and formally returned to full agency activity with confirmed appointees in mid 2022, the actions of a fully-loaded Commission really came to fruition through 2023.   In this post from a few days ago, I noted the Commission's own accoutning of its major 2023 work.  But the USSC's activity on so many important fronts for the federal sentencing system defies easy summary.  As I have explained before, I believe the most consequential and significant action by the USSC this past year has been its intricate amendments to the guidelines' criminal history rules and its decision to make those amendments retroactive.  But its revision of the sentence reduction ("compassionate release") guideline is also so very important, and its new proposed amendments for the coming year address some fundamental features of the entire guideline sentencing structure.  From 2019 through 2022, I lamented the harms and opportunity costs of the USSC lacking a quorum, and the new Commission in 2023 proved in many ways how a vibrant federal sentencing agency can contribute so much to modern sentencing law, policy and practice. 

Outgoing Louisiana Gov commuting lots of life sentences to create parole possibilities

As detailed in prior posts here and here, there has been a considerable recent effort in the Pelican State to try to get outgoing Gov John Bel Edwards to commute the capital sentences of 57 murderers on the state's death row.  That effort proved unsuccessful, but with less fanfare Gov Edwards has been using his clemency pen recently to grant hope to another notable prisoner polulation.  This lengthy local article, headlined "On way out, Gov. John Bel Edwards ramps up relief for life prisoners," provides some of the details.  Here are excerpts:

Gov. John Bel Edwards has spent his waning months in office doling out mercy at a pace unseen in decades from a Louisiana governor. Edwards has commuted the sentences of 70 prisoners since August, among 123 commutations he’s issued over his final year in office, according to data from the state Board of Pardons and Parole.  That’s by far the highest tally of any single year over his two terms.

In the bulk of those decisions, Edwards turned life sentences for long-serving prisoners convicted of murder into a number of years — ranging from 35 to 99 — at the board’s recommendation.  Those pen strokes enabled the immediate release of several of the longest-serving prisoners on “good time,” while bestowing parole eligibility to scores of others who were sentenced to life.  The parole board has granted release to many of them since.  Francis Abbott, the board’s executive director, said that 41 of the 123 people granted commutations this year by the governor remain in prison.

A 2021 law expanded parole eligibility to long-serving prisoners who are not serving life, once they’ve completed 20 years in prison and reached the age of 45.  They still must win the approval of the parole board to go free.  More than 90% of the 123 commutations Edwards has granted in 2023 this year went to prisoners serving life sentences, the data show.  The vast majority have served at least 20 years; about half spent the last 30-plus years locked up.

Edwards commuted the life sentence of Leon Brent, the longest-serving prisoner on the list, to 99 years on Aug. 1, and he was released the next day under the good-time calculus at the time.  Now in his 80s, Brent was convicted of aggravated rape in East Baton Rouge Parish and sentenced in 1964....  The average age of the 123 prisoners at their clemency hearings was 57. They include dozens who were sentenced in the 1980s or earlier. On a per-capita basis, Louisiana has far more people serving life without parole than any other state.

“The men and women whose sentences were commuted by the governor represent a fraction of our state’s 4,000-plus lifer population,” said Andrew Hundley, executive director of the Louisiana Parole Project, which supports and houses incarcerated people reentering society.  “Most of them had served more than three or four decades in prison and their records indicate clear evidence of remorse and rehabilitation.  These individuals were thoroughly vetted by an open and public process, and they have proven they are worthy of a second chance.”...

Edwards, a Democrat in an increasingly GOP-dominated state, has picked up the pace in the past few months. More commutations could come before Jan. 8, when he cedes the office to Gov.-elect Jeff Landry.  As attorney general, Landry blocked a push by advocates, which Edwards supported, for the pardon board to hear a stack of 55 clemency requests from death row prisoners and make recommendations before he leaves office. Those prisoners were seeking to have death sentences converted to sentences of life without parole.

Edwards can only grant clemency requests, including commutations and full pardons, on the board’s recommendation. In deciding whether to recommend clemency, the board’s members review prisoners’ applications, convene hearings to discuss them and relay updates on the process to victims or their surviving family members, who are invited to participate in the hearings....

Edwards now has exercised his clemency powers more than any governor since Edwin Edwards, who in his first two terms as governor in the 1970s and 1980s commuted the sentences of well over 1,200 Louisiana prisoners.  In the mid-2000s, then-Gov. Kathleen Blanco commuted the sentences of 129 prisoners over four years.

Bobby Jindal was the most sparing in his use of his clemency powers in the modern era. He commuted prison sentences just three times over his two terms as governor.  John Bel Edwards, Jindal’s successor, opened the relief valve somewhat in his first term, granting 33 commutations over those four years.  He eclipsed that figure in 2020 alone, granting 36 commutations to start his second term.  Edwards then commuted sentences for 31 prisoners in 2021 and 60 prisoners in 2022, before doubling that tally in his final year.