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March 30, 2024

"What are Federal Corruption Prosecutions for?"

The title of this post is the title of this new paper now available via SSRN authored by Lauren Ouziel. Here is its abstract:

What explains the Supreme Court’s repeated rejection of public-corruption prosecutions over the last two decades?  This Essay turns the lens on prosecutors, examining how their tendency to rely on broad theories of liability has paradoxically narrowed federal criminal law’s reach over public corruption.  It investigates the dynamics of public-corruption prosecutions that push prosecutors towards breadth and away from the alternatives (a narrower theory or no prosecution at all).  It considers how, relative to those alternatives, reversals at the Supreme Court have harmed the broader anticorruption project.  And it proposes an alternative approach to the exercise of charging discretion in public-corruption prosecutions, one rooted in a wholesale reassessment of what those prosecutions should be for.  The ultimate goal is not to find a theory through which corrupt acts are prosecutable federal crimes; the ultimate goal is to reduce corruption.  This guiding principle should steer federal prosecution to where it does the greatest good: bringing to light those corrupt acts that would otherwise remain invisible to the public and thus immune from political or other consequences.

March 30, 2024 in Offense Characteristics, Who Sentences | Permalink | Comments (0)

March 29, 2024

Starting an eary celebration of Second Chance Month ... and promoting "Relief in the Making" conference

Picture1The White House released this proclamation today, titled "A Proclamation on Second Chance Month, 2024."  Here are some excerpts:

America was founded on the promise of new beginnings.  During Second Chance Month, we recommit to building a criminal justice system that lives up to those ideals so that people returning to their communities from jail or prison have a fair shot at the American Dream.

Every year, more than 650,000 people are released from State and Federal prisons, some leaving with nothing more than a few dollars and a bus ticket to start their new lives.  In total, over 70 million Americans have a criminal history record, which can make it hard to secure a steady job, safe housing, affordable health care, or a good education — all important things to have when trying to build a good life.  Studies show that when these needs are met, we do not just empower formerly incarcerated people — we prevent crime and make our communities safer....

If we pursue this work together, our communities will be safer, stronger, and more just.  It will make families and communities whole and help grow our economy, giving everyone a fair chance.  I have always believed that our Nation’s best days are ahead — and that is true for every single American too.  This month, we recommit to fulfilling the fresh promise that every second chance holds.

NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 2024 as Second Chance Month.  I call upon government officials, educators, volunteers, and all the people of the United States to observe this month with appropriate programs, ceremonies, and activities.

Ever eager to respond to a call for "all the people of the United States to observe this month with appropriate programs, ceremonies, and activities," I am pleased to highlight that we are now only two weeks away from this exciting event taking place here at The Ohio State University Moritz College of Law titled "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws." Here are the essentials:

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

This is a free event, and folks can register at this link.

March 29, 2024 in Reentry and community supervision, Who Sentences | Permalink | Comments (3)

March 28, 2024

"Towards a Federalism(s) Framework of Punishment"

The title of this post is the title of this new article authored by Sheldon Evans now available via SSRN.  Here is its abstract:

Federalism and its impact on criminal punishment is foundational to understanding the failures of mass incarceration. Scholars studying the negotiation of power between the federal and state governments have highlighted the increase of cooperative agreements that allow these levels of government to accomplish mutually beneficial outcomes for their overlapping constituencies.  In the context of criminal punishment, however, such cooperation has devolved into a race to the bottom in a bi-partisan push to punish.  Consequently, this modern cooperative era of federalism has served to facilitate mass incarceration in many respects as a policy vehicle to accomplish a national tough-on-crime agenda.

This Article argues for a new conception of punishment that forms important synergies within a redesigned federalism system.  The core principle that connects punishment and federalism theory is their impact on the liberty interests of the individual.  This Article builds on this unifying principle of liberty to constrain cooperative criminal federalism from abusing its power and over subscribing to carceral punishments.  These unique tools that merge federalism and punishment theories form the federalism(s) framework of punishment, which leads to a set of policy outcomes in which the federal and state governments conflict, cooperate, and coordinate in different contexts with the goal of fully appreciating the liberty interests of the offender while increasing public safety.

March 28, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Sam Bankman-Fried sentenced to 25 years in federal prison for his FTX frauds

As reported in this Wall Street Journal piece, "FTX founder Sam Bankman-Fried was sentenced Thursday to 25 years in prison for fraud tied to the collapse of his digital exchange, capping his meteoric rise and fall." Here is more:

Less than two years ago, Bankman-Fried was the crypto king. The moptop millennial hobnobbed with heads of state, soaked up Caribbean views from his $30 million penthouse and vowed to use his wealth to better humanity.

Last year, a jury found the 32-year-old guilty of stealing billions of dollars from FTX customers and defrauding investors and lenders to his crypto investment firm Alameda Research.

Bankman-Fried, standing with his hands clasped, told the judge before sentencing Thursday that he was haunted every day by what he had thrown away. “I was responsible for FTX, and its collapse is on me,” he said during a 20-minute statement. A lot of people were let down, he said, adding, “I’m sorry about that.”

Federal prosecutors said Bankman-Fried committed one of the greatest financial frauds in U.S. history. Fueled by greed and hubris, he used other people’s money to fund his lavish lifestyle, make risky investments and pursue his political agenda, according to prosecutors. Prosecutors asked U.S. District Judge Lewis Kaplan to sentence Bankman-Fried to 40 to 50 years in prison. Without a lengthy sentence, Bankman-Fried could commit more crimes, Assistant U.S. Attorney Nicolas Roos told the court. “If Mr. Bankman-Fried thought that mathematics would justify it, he would do it again,” Roos said.

Bankman-Fried’s lawyers argued a sentence of no more than six years in prison was more appropriate, saying he still had much to offer to society. They pointed to his autism, his deep remorse and his charitable works as reasons for a lenient sentence. Marc Mukasey, his lawyer, told the judge that Bankman-Fried wasn’t a “ruthless financial serial killer” who sought to hurt people. “Sam Bankman-Fried does not make decisions with malice in his heart,” said Mukasey. “He makes decisions with math in his head.”...

During a monthlong trial in the fall, jurors heard testimony from three of Bankman-Fried’s top lieutenants, including his ex-girlfriend, who said the FTX founder directed them to commit crimes alongside him. Bankman-Fried took the unusual step of testifying in his own defense. He told jurors that he never committed fraud, yet he struggled under cross examination, saying dozens of times that he didn’t recall specifics.

Kaplan said Thursday that Bankman-Fried committed perjury during his testimony, including when he told jurors that until fall 2022, he had no knowledge that Alameda had spent FTX customer deposits.

In the weeks before the sentencing, Bankman-Fried’s supporters wrote letters to the judge, saying that his struggles with depression, autism and anhedonia — the inability to feel happiness — weigh in favor of a lighter sentence....

Kaplan said Thursday that in determining the sentence, he wasn’t weighing whether customers would get their money back. “A thief who takes his loot to Las Vegas and successfully bets the stolen money is not entitled to a discount on the sentence,” the judge said.

Prior related posts (in some of which I set the over/under at 25 years):

March 28, 2024 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (38)

March 27, 2024

Supreme Court seems inclined to limit, but not eliminate, Apprendi's prior-conviction exception

As previewed in this post, the Supreme Court this morning heard oral argument in Erlinger v. United States, No. 23-370, to consider whether the Sixth Amendment requires a jury to find (or a defendant to admit) that prior offenses were "committed on occasions different from one another" to trigger the severe mandatory minimum sentence of the Armed Career Criminal Act.  As revealed in some of the headlines of press pieces about the argument, it seems a majority of Justices are likely to find Apprendi rights apply here:

From Bloomberg Law, "High Court Suggests Robust Jury Right for Longer Sentences"

From Courthouse News Service, "Supreme Court leans toward jury review for career criminal sentences"

From Law360, "Sotomayor 'Annoyed' By Supreme Court's Focus On History"

The full 90-minute oral argument in Erlinger is available at this link, and it makes for an interesting listen.  I especially liked, in light of my prior post, the very first question in the argument: Justice Thomas asked, after hearing the defense's opening statement urging limits on the Almendarez-Torres prior-conviction exception to Apprendi, "wouldn't it be more straightforward to overrule Almendarez-Torres?".   In turn, Justice Alito followed up by asking "if we were to reexamine that, would it then be appropriate to reexamine the entire question that was opened up in Apprendi?".

In the end, it seems neither Almendarez-Torres nor Apprendi are in any real jeopardy.  A majority of Justices were clearly inclined to adopt the view, argued by both the defense and the government, that  Apprendi's prior-conviction exception is confined to just the fact of a prior conviction so that any offense-related facts beyond the elements of the prior crime must be proven to a jury if those facts increase the applicable sentencing range.  Less clear is whether the Court might reach resolve this case unanimously.  Justice Alito has never been a big fan of Apprendi rights, and a few other Justices seemed interested in discussing some historical practices of judges finding facts related to recidivism.   Just how this case gets written up may prove interesting.

March 27, 2024 in Almendarez-Torres and the prior conviction exception, Blakely in the Supreme Court, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (11)

Lots of perspectives at Vital City around criminal justice research

This new issue of the journal Vital City has a large collection of essays engaging with the rich topic of criminal justice research and practice.  There are too many intriguing pieces to flag or summarize them all here, but this Editors’ Note by Elizabeth Glazer and Greg Berman sets up the context and much of what follows. Here is an excerpt:

Starting in earnest during the Clinton administration, there has been a concerted effort by a range of important actors to try to encourage “evidence-based” criminal justice policy and programs — a phrase at once hilarious and poignant....

But the phrase does have a meaning, if coded.  The subtext, rarely spoken aloud, is an attempt to reduce the temperature of the public discourse about criminal justice, moving policymaking away from the realm of politics and into the realm of science as much as possible.  In the years before evidence-based reform emerged as a concept, high-profile tragedies — cases of child abduction or random murders — had been used to make the case for more punitive lawmaking throughout the country. At the federal level, the infamous Willie Horton campaign advertisement in 1988 performed similar work.

The evidence-based policy movement, in criminal justice and other fields, sought to move away from such demagoguery.  During the era of reduced crime that began in the 1990s, it proved reasonably successful. “Follow the data” became a rallying cry that appealed to both Democrats and Republicans.  One sign of the movement’s success was the creation of CrimeSolutions.gov, a website administered by the U.S. Department of Justice that summarizes academic research in an effort to help policymakers and practitioners figure out which criminal justice programs and practices work and which do not.

Recent years, however, have seen the emergence of a palpable backlash to the evidence-based movement.  Perhaps the most extreme expression of this backlash has been the argument by prison abolitionists and other radical activists that the evidence-based paradigm “strengthens the influence of neoliberalism, punitive impulses, and white supremacy over criminal system policy and procedure.”  They point to the fact that the United States is still plagued by levels of violence, racial disparities and incarceration rates that dwarf peer nations.  What use is social science evidence if it cannot prevent, or meaningfully ameliorate, these kinds of problems?

Earlier this year, Megan Stevenson, an economist at the University of Virginia Law School, published an essay in the Boston University Law Review raising further questions about evidence-based reform.  In “Cause, Effect, and the Structure of the Social World,” Stevenson reviews a half-century of randomized controlled trials (“RCTs” are known as the “gold standard” of social science) and finds that, “Most reforms and interventions in the criminal legal space are shown to have little lasting impact when evaluated with gold-standard methods of causal inference.”  For Stevenson, this is a reflection of the immutable social structures of the world that make change hard to engineer, at least when using the kinds of “limited-scope interventions” that lend themselves to randomized trials.  Provocatively, Stevenson argues that it may be necessary to abandon narrow, evidence-based reform and instead “seek systemic reform, with all its uncertainties.”

Stevenson’s essay got us thinking.  Is the notion that we can meaningfully address social problems a myth?  Does it really make sense to rely on evidence to guide policy?  And if so, what should this look like?

At the same time, our friends at Hypertext, the journal of the Niskanen Center — recently named the “most interesting think tank in American politics” by Time magazine — were wrestling with similar questions. So we decided to join forces. Together, we asked more than a dozen leading scholars, philanthropists, journalists and government policymakers to discuss the role of evidence in policymaking, using Stevenson’s article as a jumping-off point. The result of this exploration makes up the bulk of this issue of Vital City.

March 27, 2024 in Data on sentencing, Recommended reading | Permalink | Comments (0)

"Between Cooperation and Conflict in Second Look Sentence Review"

The title of this post is the title of this notable new paper authored by Kay Levine and Ronald Wright now available via SSRN. Here is its abstract:

In this article, we offer the first scholarly assessment of a new practice emerging in many state criminal courts: prosecutor-initiated second look sentencing, also called resentencing.  Attorneys working on resentencing matters consider the continuing integrity of a sentence imposed on a defendant years (or even decades) earlier, with an eye toward revising its terms.  They assess numerous factors, such as whether the defendant still presents a public safety risk, whether the defendant has taken advantage of prison programming, and whether the original sentence now appears disproportionate due to a shift in community values. Second look sentencing thus offers great promise as a means to correct for the punishment excesses of the past.

But as we recount from our original interviews, there are some cracks beneath the surface.  The defense and prosecutor roles in resentencing start from a structural power asymmetry that could weaken the spirit of cooperation that characterizes the early days of the practice.  There are gaps (both real and perceived) between the lofty aspirations of prosecutorial rhetoric at the time of adoption and the more limited reality that emerges when prosecutors start making case-level decisions, subject to resource and political limits. Faced with this frustrating disconnect, some defenders return to their traditional adversarial role and refuse to enable or endorse what they see as programmatic failure.  Left unchecked, these implementation roadblocks, combined with resource limits and political constraints, could delay the spread and blunt the effects of this innovative device.

March 27, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Texas justice?: how should deal cut by special prosecutors to end felony charges against Texas AG be described?

I have not followed closely any of the legal cases and dramas surrounding Texas Attorney General Ken Paxton, but the news of a deal to end long-running state criminal charges against him caught my eye in part because I am not quite sure how to describe it.  As detailed in this local article, headlined "Ken Paxton agrees to community service, paying restitution to avoid trial in securities fraud case," the resolution is not a plea deal because AG Paxton is not pleading guilty to anything.  And yet, AG Paxton is agreeing to serve a kind of sentence functionally and to being under the yoke of prosecutors for an extended period:

Prosecutors on Tuesday agreed to drop the securities fraud charges facing Attorney General Ken Paxton if he performs 100 hours of community service and fulfills other conditions of a pretrial agreement, bringing an abrupt end to the nearly nine-year-old felony case that has loomed over the embattled Republican since his early days in office.

The deal, which landed three weeks before Paxton is set to face trial, also requires him to take 15 hours of legal ethics courses and pay restitution to those he is accused of defrauding more than a decade ago when he allegedly solicited investors in a McKinney technology company without disclosing that the firm was paying him to promote its stock. The amount of restitution totals about $271,000, prosecutor Brian Wice said.

Paxton, who will not have to enter a plea under the terms of the agreement, faced the prospect of decades in prison if he had been convicted of fraud. His status as a felon, based in part on an opinion he issued himself, would have likely barred him from running for office in the future. Paxton attorney Dan Cogdell said the prosecutors “approached us” and Paxton was “happy to agree to the terms of the dismissal.”

“But let me be clear, at no time was he going to enter any plea bargain agreement or admit to conduct that simply did not occur,” Cogdell said in a statement. “There is no admission of any wrongdoing on Ken’s part in the agreement because there was no wrongdoing on his part.”

The deal is the second major win for Paxton in roughly the last six months, after the Republican-controlled Texas Senate acquitted him last fall of 16 impeachment charges centered on allegations that he accepted bribes and abused the authority of his office to help a wealthy friend and campaign donor....

Two of the charges — first-degree felonies — stemmed from allegations that Paxton persuaded investors, including a then-GOP state lawmaker, to buy at least $100,000 worth of stock in a tech startup, Servergy, without disclosing that he would be compensated for it. Paxton will have 18 months, the length of the pretrial deal period, to pay restitution to the former lawmaker, Byron Cook, and the estate of Joel Hochberg, a Florida businessman who died last year. Wice said he is “not necessarily opposed" to dropping the charges before the 18 months are up if Paxton makes the payments sooner. He said Paxton cannot use campaign funds to pay restitution....

Wice said he had been “besieged by a torrent of phone calls” from people who have “expressed their monumental displeasure with the fact that these cases are being resolved with a pretrial intervention.” Touting the restitution Paxton now owes to his alleged victims, Wice said it was more important to secure justice for them than to pursue prison time for Paxton, which he said should only be a priority if the defendant poses a threat to public safety....

Paxton will perform community service in Collin County, where he resides, with an "entity or organization" agreed upon by both sides, Wice said — likely a "food pantry or soup kitchen." He will also be required to check in with prosecutors every 60 days to ensure he is fulfilling the terms of the deal. The case could still resume and head to trial if Paxton fails to comply.

I think it would be fair to label this resolution a deferred prosecution agreement or maybe a non-prosecution agreement, though it appears the special prosecutor calls this a "pretrial intervention."  Whatever the right label, I wonder if this arrangement is unusual in Texas criminal justice arenas.  I also wonder whether folks view this resolution as true Texas justice or a kind of special Texas justice.

March 27, 2024 in Offender Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (13)

March 26, 2024

Might Justice Thomas advocate for entirely eliminating the Apprendi's prior-conviction exception in Erlinger?

Though lots of other cases are, understandably, getting lots more attention this Term, I am still quite excited that the Supreme Court will hear tomorrow a notable (and big?) case about Apprendi rights in Erlinger v. United States, No. 23-370.  There are procedural and substantive issues that have my attention in this notable sentencing case.

Procedurally, the federal government not only requested certiorari along with the criminal defendant, but DOJ agrees with the defense's claim that the Sixth Amendment requires a jury to find (or a defendant to admit) that prior offenses were "committed on occasions different from one another" to trigger the severe mandatory minimum sentence of the Armed Career Criminal Act, 18 USC § 924(e)(1).  Because DOJ and Erlinger have the same basic view on the law, SCOTUS appointed Nick Harper as an amicus to argue on behalf of the judgment below.  In this merits brief, the amicus ably argues that the "Constitution permits judges to determine whether a defendant’s prior offenses occurred on different occasions when imposing an enhanced sentence under ACCA."  Amicus Brief at 6 (emphasis added).  This Law360 article, headlined "In High Court Sentencing Case, It's Everyone V. Gibson Dunn," notes that nobody other than the court-appointed amicus contests the defendant's Sixth Amendment claim here.

Substantively, I am on record as thinking there is a sound textual basis in the Sixth Amendment for distinguishing between fact-finding of offense conduct and offender characteristics.  See Conceptualizing Blakely, 17 Federal Sentencing Reporter 89 (2004); see also Berman & Bibas, Making Sentencing Sensible, 4 Ohio State Journal of Criminal Law 37 (2006).  But the Supreme Court in Cunningham v. California, 549 U.S. 270 (2007), rejected that distinction.  And the substantive constitutional issue in Erlinger has my attention for three additional reasons: (1) the Supreme Court has largely ignored or sought to avoid a range of Sixth Amendment jury/judge Apprendi issues over the last decade (see, e.g, acquitted conduct sentencing enhancements), (2) the topic at issue in Erlinger, namely the reach of a "prior conviction exception" to the Sixth Amendment jury rule, in a sense pre-dates even Apprendi, and (3) Justice Thomas has suggested since his concurrence in Apprendi that an originalist understanding of the Sixth Amendment means even "the fact of a prior conviction is an element under a recidivism statute."  

I could write for days about all these substantive Apprendi matters (indeed, I have already written for years about them).  But it is item (3) above — Justice Thomas's view that an originalist understanding of the Sixth Amendment means even "the fact of a prior conviction is an element under a recidivism statute" — that prompts the question in the title of this post.  Because it seems Justice Gorsuch and Barrett also consider themselves committed originalists, I am wondering if someone during oral argument might bring up the idea of entirely eliminating Apprendi's prior-conviction exception.  I do not believe the parties have advocated such a change to Apprendi jurisprudence, as DOJ and Erlinger just argue the excpetion should be limited to the bare fact of a prior conviction.  But if the Court is, or if at least some Justices are, inclined to take an originalist approach to this case, why further preserve an exception of the Sixth Amendment that lacks originalist support?

March 26, 2024 in Almendarez-Torres and the prior conviction exception, Blakely in the Supreme Court, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Call for Papers: Federal Sentencing Reporter issue on "Booker at 20"

M_ucpfsr_29_4_coverThe US Supreme Court's January 2005 decision in United States v. Booker ushered in a new era for federal sentencing.  Through a dual set of dueling 5-4 opinions, Booker made the guidelines “effectively advisory,” rather than “mandatory,”  after the Court concluded that judicial fact-finding to increase mandatory guideline ranges violated the Fifth and Sixth Amendments.   The Court’s opinion essentially invited Congress to rework the federal sentencing system in the wake of this ruling, but the Booker advisory guideline system has proved remarkably durable: the mandatory guideline system was operational for 16 years, but we are now approaching the 20th anniversary of Booker and the advisory guideline system it created.

Though constitutionally and functionally a sea change, the Booker ruling has seemingly had a relatively limited effect on sentence severity and reliance on imprisonment in the federal system.  Data from the US Sentencing Commission reveal that in fiscal year 2003, the last full year of data before the disruptions of Booker and its predecessor ruling in Blakely v. Washington, just over 69,000 persons were sentenced in federal courts, with nearly 87% receiving a prison term and with the average prison term being 48 months.  Data from fiscal year 2023, the latest full year of federal sentencing data assembled by the Commission, indicate that just over 64,000 persons were sentenced in federal courts with nearly 93% receiving a prison term and with the average prison term being 52 months.  The relative consistency of federal sentencing outcomes in the Booker era is striking, especially given that Congress enacted two notable sentence-reducing statutes in this period through the Fair Sentencing Act of 2010 and the First Step Act of 2018.

Still, sentencing below guideline ranges has increased significantly in the Booker era, and lawyers and sentencing judges now place greater emphasis on the statutory sentencing factors of 18 USC § 3553(a) and relatively less emphasis on guideline particulars.  Data from FY 2023 indicate that only 42% of sentences are imposed within the guideline range, though the same Commission data reveal that the guidelines continue to exert a kind of gravitational pull on sentence lengths even though not regularly followed.  And, of course, Booker did not directly impact the force of statutory mandatory minimums, which still shape and cast shadows on plea bargaining and other aspects of the federal sentencing process.  

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with light use of citations in the form of endnotes.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

March 26, 2024 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

March 25, 2024

"Punishment as Placebo"

The title of this post is the title of this new paper authored by Sheldon Evans now available via SSRN. Here is its abstract:

The modern criminal punishment regime has failed to deliver on its promise of public safety.  For all of the resources expended and all of the human costs incurred, the ever-growing carceral state does not make us safer.  Scholars across the social sciences have studied these shortcomings for decades using various methodologies.  The burgeoning prison population has little relation to the crime rate, which advocates have argued supports decarceration efforts to remedy the inefficiency, inequality, and subordinating effects of harsh sentencing policies and institutional design choices that have supported the mass incarceration crisis.  What then justifies the continued propagation of this failed regime?

This Article proposes a new balancing of considerations to answer this question that innovates punishment theory through the medical and experimental lens of placebos.  The efficacy of policy must be balanced with its public perception; thus, a policy may not be effective at fixing a problem, but this is often less important than the perception of the policy.  A medical placebo treatment may be physiologically inert, but it still can have a positive psychological and therapeutic impact by making the patient feel better because they think they are receiving effective treatment.  In the same way, the cultural value of mass incarceration extends beyond its failed effectiveness by providing psychological and therapeutic value to help the public cope with their fear of crime, their moral commitments to justice, and their socialized feelings towards offenders.

This placebo methodology offers several unique insights about punishment theory and practice that learn from the extensive medical research and ethics literatures.  By viewing punishment as a placebo, the modern punishment regime must confront unique questions concerning the social harm of punishment, the justifications for public deception, the ethics of experimentation, and the perverse economics of inefficacy.  These theoretical synergies also provide practical insights into how to reverse and regulate such placebo punishments while focusing on a more humane and ethical punishment future.

March 25, 2024 in Purposes of Punishment and Sentencing | Permalink | Comments (1)

US Sentencing Commissions publishes 2033 Annual Report and new retroactivity data on 2023 criminal history amendments

This afternoon, the US Sentencing Commission sent out an email that flagged a bunch of notable new materials on the USSC's website.  Data fans will be especially interested in a lot of these new items, which I link below.  But everyone should mark their calendars for April 10, 2024; the USSC has now created a key date though this Public Meeting Notice.  This will be the last scheduled public meeting of the 2023-2024 amendment cycle for the Commission and on the agenda is "Vote to Promulgate Proposed Amendments."  I am hoping an acquitted conduct amendment will be among those getting a positive vote from the Commission, but we will need to tune in on April 10 to see.

In the meantime, USSC and federal sentencing data junkies have some new items to check out, and here is how the USSC's email reports on these new materials:

(Published March 25, 2024) - The 2023 Annual Report highlights the Commission’s major activities and accomplishments during fiscal year 2023.  The Annual Report also includes a new in-depth analysis of federal sentencing trends and noteworthy shifts in the caseload.

(Published March 25, 2024) - The Commission has published its first analysis of motions for a reduced sentence pursuant to retroactive application of Parts A and B of Amendment 821, relating to Criminal History (effective November 1, 2023).

(Published March 25, 2024) - The Commission continues to release additional fiscal year 2023 federal sentencing data following publication of the 2023 Sourcebook of Federal Sentencing Statistics earlier this month.

March 25, 2024 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Noting the notable new tune from the US Justice Department concerning part of the new guideline, Section 1B1.13, for sentence reductions

This recent Bloomberg Law piece, headlined "Debevoise, DOJ Sentencing Reform Clash Could Hit Supreme Court," details how the Justice Department's legal opposition to one part of the US Sentencing Commission's new sentence reduction guideline, Section 1B1.13, could be laying the groundwork on a legal issue that might work its way to the US Supreme Court.  Usefully, the piece notes that the DOJ legal position now represents something of an about-face:

John Gleeson has fought to scrub away what he calls the injustice of “stacked” mandatory prison sentences in the eight years since he left the federal bench. The Debevoise & Plimpton partner’s work could soon face its toughest test: a face-off with the Justice Department at the US Supreme Court.  Gleeson, an ex-prosecutor, spent two decades as a federal district judge in Brooklyn before joining Debevoise in 2016. He’s the driving force behind “The Holloway Project,” a massive pro bono program focused on criminal justice reform....

A growing team of Debevoise lawyers have successfully represented 55 people to date, getting their prison sentences reduced by 2,230 years combined, according to the firm.  The project is now facing legal jeopardy. The DOJ is challenging Sentencing Commission guidelines that became effective in November, which Debevoise and others have used to obtain reduced sentences in some cases....

The Sentencing Commission guidelines went on the books in November, and they essentially dovetail the Debevoise arguments.  The guidelines allow criminal defendants who have served at least 10 years in prison to seek sentence reductions based on changes to laws that occurred after the sentencing.  A court can reduce a sentence in this situation if it finds a gross disparity between the original punishment and that likely imposed under the new law.  Gleeson is a member of the commission and was involved in developing the guidelines.

The problem is that the Justice Department has a different point of view. The agency continues to fight efforts to reduce sentences in several cases, arguing that the commission exceeded its authority by effectively making the excessive sentence reduction portion of the law retroactive.

“What [DOJ] said very early on is that their nationwide litigation position was that they are objecting to this provision as an overstep from the Sentencing Commission,” said Erica Zunkel, who teaches at the University of Chicago and has collaborated with Debevoise lawyers. “The DOJ is more or less rolling out the same legal arguments in every case that raises this issue across the country.”  That marks a turnabout for the agency, which had previously urged the Supreme Court to wait until the Sentencing Commission made the rules Congress required.

The DOJ has “contradicted itself” by now arguing that the commission doesn’t have the power to answer those questions, according to US District Judge Timothy Batten.  “How can the Commission have the authority to address the question but exceed that authority by addressing the question?” Batten wrote in a case last month. “This argument lacks merit.”  Batten agreed to reduce the defendants’ sentence over prosecutors’ objections.

The issue is currently before district judges and some appeals courts in various cases. Gleeson and others expect it will ultimately reach the Supreme Court. “I would not be surprised if the Supreme Court did take it up,” said Elizabeth Blackwood, who has represented Debevoise co-defendants in her role as counsel and director for the First Step Act Resource Center at the National Association of Criminal Defense Lawyers.

I believe the ruling referenced in this article by Chief Judge Batten came in US v. Allen, No. 1:09-cr-320-TCB (ND Ga. Feb. 12, 2024) (available here).  This ruling includes this passage (cites removed):

To hold that courts cannot consider nonretroactive changes to sentencing laws as extraordinary or compelling reasons would require courts to ignore the policy statement that Congress explicitly directed the Commission to create. The amendments revised the policy statement to unambiguously allow courts to consider nonretroactive changes in individual circumstances.  And nothing in § 3582(c)(1)(A)’s text prohibits the Commission from considering nonretroactive changes in the law as extraordinary and compelling reasons for a sentence reduction. Congress could have drafted a blanket prohibition into § 3582(c)(1)(A), but decided not to. Therefore, the Commission's decision to expand upon the policy statement was within its statutory authority and presents no separation of powers issues.

Further, the Government's argument contradicts itself. The Department of Justice has previously argued that courts should refrain from addressing the retroactivity question because “it should be addressed first by the Commission.” Amendments to the Sentencing Guidelines, supra at 6; see also [598] at 5 n.11. The Commission has now addressed the issue. How can the Commission have the authority to address the question but exceed that authority by addressing the question?  This argument lacks merit.

March 25, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

March 24, 2024

Rounding up a few sentencing speculations a few days before Sam Bankman-Fried's sentencing

Though we are still a few days from the high-profile sentencing of former FTX CEO Sam Bankman-Fried, I have already seen some lengthy press pieces discussing the sentencing filings and speculating about how US District Judge Lewis Kaplan with weigh competiting arguments.  Here is a round up:

From Business Insider, "FTX's victims may get all their money back. The judge sentencing Sam Bankman-Fried might not care."

From CoinDesk, "U.S. Government's Legal Precedents Don't Support Lengthy Prison Term, Bankman-Fried's Defense Argues"

From Inc., "Is Sam Bankman-Fried a 'Super-Villain' or Just a Bad Trader?"

From Unchained, "SBF’s Prison Sentencing Is Coming Up. How Many Years Will He Get?"

I remain inclined to put the over/under for an imprisonment term here at 25 years, in part because I ccan readily imagine the sentence being somewhat shorter or somewhat longer. 

Prior related posts:

March 24, 2024 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (4)

"Dimensions of Prosecutor Decisions: Revealing Hidden Factors with Correspondence Analysis"

The title of this post is the title of this new article now available via SSRN and authored by Megan S. Wright, Cindy Cain and Shima Baradaran Baughman. Here is its abstract:

Despite the significant impact of prosecutorial discretion on criminal justice outcomes, there are very few large-scale studies of state and local prosecutor decision-making.  Our previous empirical research demonstrated that a defendant’s race and class do not affect prosecutorial charging decisions and revealed a gap in the literature about factors that do influence prosecutorial charging decisions and sentencing recommendations.  Accordingly, we designed a study to obtain more information about prosecutor discretion and decision-making. 

Over 500 prosecutors from across the United States completed our vignette-based experiment and survey, which produced quantitative and qualitative data.  We transformed these data to use Correspondence Analysis (CA), an empirical method that allowed us to identify associations between prosecutors’ charging decisions and sentencing recommendations for a hypothetical defendant and the prosecutors’ individual characteristics, office and jurisdiction characteristics, and the factors they described as important to their decision-making.  Our analysis shows two dimensions of prosecutor decisions — Punitive vs. Therapeutic Sentence and Most Severe Criminal Record vs. Least Severe Criminal Record — and we mapped the prosecutor decisions onto these dimensions.  Our results also reveal factors associated with prosecutor decisions about charges and whether to (i) defer prosecution or suspend sentences, (ii) recommend a monetary penalty, (iii) recommend a term of confinement, or (iv) seek alternative sentences, and we discuss these findings in the context of effects on recidivism.

March 24, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)