Sentencing Law and Policy

New study highlights appellate reversals of excessive sentences in New York

This lengthy Law360 article, headlined "Study Shines Light On Excessive NY Prison Sentences," reports on an interesting recent student about sentencing reversals in New York.  Here are excerpts:

A recent report shining a light on excessive felony prison sentences handed down by more than 140 trial judges in New York over a 16-year period has experts and advocacy groups calling for increased transparency to help ensure that courts are imposing fair penalties on criminal defendants in the Empire State.

The study by judicial accountability nonprofit Scrutinize, in partnership with the New York University School of Law's Center on Race, Inequality, and the Law, found that at least 140 trial judges in the state imposed prison sentences that were later deemed excessive on intermediary criminal appeal.  Of those, 65 judges saw sentencing decisions overturned on more than one occasion.  The 12 judges with five or more excessive sentence findings, meanwhile, had their sentences reduced by a total of 1,246 years.

The organizations urged the state judiciary to release sentencing data for individual judges that are currently not public, information they said could reveal patterns of oversentencing, and to publish an annual report summarizing excessive sentence findings to keep track of those trends....

According to the study, which looked at cases originating from the five counties of New York City and Nassau, Suffolk, Westchester, Orange, Rockland, Dutchess, and Putnam counties, two judges, Edward J. McLaughlin and Vincent Del Giudice, had a total of 39 excessive sentence findings combined, with the appellate court cutting a total of 684.5 years from the sentences they imposed. Justice McLaughlin, who presided over criminal matters in Manhattan, is now retired. Justice Del Giudice still hears criminal cases in Brooklyn.

According to the report, between 2014 and 2022, an average of 19,930 felony cases each year ended with a conviction after a guilty plea or a jury trial verdict.  In 2022, felony dispositions were nearly 15,800, but there were only about 1,100 appeals filed.  And, as acknowledged by the report's authors themselves, only a fraction — about 4% — of felony sentences are reduced for excessiveness on appeal.  That means that looking at overruled sentences provides an incomplete picture of judges' carceral attitudes.

The full study, which is titled "Excessive Sentencers: Using Appellate Decisions to Enhance Judicial Transparency," is available at this link. Here is its executive summary:

Increased focus on state judiciaries has significant potential to improve the criminal legal system.  Recognizing the need for evaluation metrics for judges, this report pioneers a data-driven, evidence-based approach to assessing the judiciary.  We analyze written appellate decisions to quantify individual trial court judges' decisions and impacts.  This methodology transforms complex judicial texts into accessible data, creating metrics of judicial performance for use by policymakers and the public.

This report introduces ‘excessive sentence findings’ as a method to assess individual judges’ decisions and their impact.  In New York, appellate courts review sentences for excessiveness and can reduce them in the “interest of justice,” a rare and clear signal — from highly-respected institutional actors — that a lower court judge made an exceptionally troubling choice.  We identify lower court judges with sentences reduced by appellate courts for being excessive and calculate the total number of years reduced from those sentences.

The study reveals patterns of repeated excessive sentencing by a number of specific judges, raising questions about judicial accountability in New York.

"State Sentencing Reforms Had Little Impact on Racial Disparities in Imprisonment, Analysis Finds"

The title of this post is the the title of this new press release from the Council on Criminal Justice (CCJ) discussing the latest findings of research it has been conducting looking at incarceration disparities.  Here is part of the press release, with lnks from the original providing access to the underlying research:

The Black-White disparity in imprisonment has narrowed substantially over the past 20 years but very little of the progress can be attributed to state sentencing reforms, according to a series of reports released today by the Council on Criminal Justice (CCJ).

Following on previous analyses that documented a 40% drop in the Black-White imprisonment disparity between 2000 and 2020, researchers at CCJ, Georgia State University, and the Crime and Justice Institute examined more than 700 statutes adopted in 12 states between 2010 and 2020, seeking to understand how sentencing reforms might have influenced the reduction.  Laws included for study related to violent, property, and drug crimes, as well as parole release and technical violation practices.  The study states (Arizona, California, Colorado, Florida, Georgia, Illinois, New York, North Dakota, Pennsylvania, South Carolina, Texas, and Utah) varied by region, demographic composition, sentencing structure, and the political party in power.

With minor exceptions, the analysis found that the sentencing reforms had negligible impacts on reducing racial disparities, and instead largely codified changes to enforcement, policing, charging, and sentencing practices that had occurred before the laws were enacted. In addition, many sentencing law changes that took effect during the study period addressed fairly infrequent crimes and therefore had a minimal effect on disparity. 

The findings suggest that factors beyond sentencing laws were mostly responsible for the Black-White imprisonment disparity declining from 8.2-to-1 in 2000 to 4.9-to-1 in 2020. Though the study did not statistically assess alternative explanations, the authors offered several other possible reasons for the shrinking disparity, including changes in policing practices, drug use (from cocaine to opioids), how drugs are sold (from open-air markets to the use of GPS-equipped smartphones), and the types of crimes people commit (from burglary to cybercrime, for example)....

The 12-state analysis is part of a sweeping package on racial disparities released by CCJ’s Pushing Toward Parity project. It includes an in-depth look at the legislative changes in each of the 12 study states as well as two reports examining disparities in imprisonment through other lenses.

One analysis examined state imprisonment disparities between Hispanic and non-Hispanic White people.  It found that disparity in imprisonment rates declined during the first two decades of the century, but that the precise size of the drop is unclear because of a conflict between data sources. In 2020, data collected from state corrections departments showed a Hispanic-White disparity ratio of 1.5-to-1; data from a federal prison survey, however, produced a ratio that was 2.7-to-1, or 80% larger. 

The gap in disparity ratios derived from each source has increased over time.  In 2000, the two disparity ratios were roughly equivalent, but by 2020 the federal data disparity ratio was 80% larger.  The measurement gap stems from how race and ethnicity are recorded and classified in each source.  The choice of measurement method makes a large difference in the projected achievement of parity: if current trends continue, the Hispanic-White disparity measure drawn from state data would reach parity by about 2026, while the measure from federal data would reach parity about 30 years later.

Another analysis focused on disparities in female prison populations. It found that state imprisonment disparity between Black and White women fell by 71% between 2000 and 2020, decreasing from 6.3-to-1 to 1.8-to-1 and exceeding the drop for men.  The decline was driven by a 56% decline in the imprisonment rate for Black women and a 57% increase for White women.  Hispanic-White female imprisonment rate disparity also fell (by 56%) over the two-decade period, data from state corrections departments showed; it has been at or below parity since 2010 and reached 0.7-to-1 in 2020, meaning that White women were more likely to be imprisoned than Hispanic women.

Female imprisonment disparity fell across violent, property, and drug offense categories, with the largest drop recorded for drug crimes.  From 2000 to 2020, Black-White drug offense imprisonment disparity among women dropped from 8 to 0.6, reaching parity in 2016.  Hispanic-White drug offense imprisonment disparity fell from 2.4 in 2000 to 0.5 in 2020. Changes in the demographic composition of prison admissions drove the trends.  From 2000 to 2019, admissions decreased 47% for Black females, increased 15% for Hispanic females, and rose 138% for White females. 

Call (again) for papers: Federal Sentencing Reporter issue on "Booker at 20"

In this prior post a couple of weeks ago, I set out a call for papers for a forthcoming issue of the Federal Sentencing Reporter to note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created in Booker.  I plan to repost this call every few weeks until the deadline thoward the end of May.  So:

The 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.

Might the Supreme Court completely rewrite Eighth Amendment jurisprudence in the Grants Pass case?

The question in the title of this post is discussed at some length in this new Marshall Project piece, which carries this full headline: "This Supreme Court Case on Homelessness May Limit Prisoner Rights and Expand Executions: In Grants Pass v. Johnson, a town in Oregon asks the court to reconsider what constitutes “cruel and unusual punishments."  I recommend the whole article, and here are a few excerpts:

When the Supreme Court hears the case of Grants Pass v. Johnson later this month, the justices will consider how far cities can go in policing homeless people. But just as the court swept away a half-century of precedent by overturning Roe v. Wade, the justices could use this case about homelessness to upend how we interpret four key words in the Bill of Rights — “cruel and unusual punishments.” Their decision could have ramifications across a wide swath of the criminal justice system, including prison conditions and the death penalty.

The case is about whether the city of Grants Pass, Oregon, violates the Constitution’s Eighth Amendment when it arrests, fines and even jails people without homes for sleeping outside.  A lower federal court recently ruled that punishing people for doing something they cannot help is cruel and unusual punishment. “As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter,” the Ninth Circuit Court of Appeals wrote.

Grants Pass appealed the ruling up to the Supreme Court, which will hear oral arguments on April 22, positing that the courts have no business telling cities what behavior they can regulate.  The Eighth Amendment, they say, applies to punishments levied after a crime, not laws that establish what is a crime in the first place, and besides, fines and jail time are hardly cruel or unusual. 

At the heart of this debate are two very different ways of reading the Eighth Amendment.  First, there’s originalism.  In recent sweeping decisions on abortion and guns, conservative justices have focused on what the Constitution’s language meant to the men who wrote it in the 1780s.  But other judges and scholars argue for a “living” Constitution, whose meaning should change as the world changes....

Using the evolving standards argument, federal courts have ruled on access to health care in prison, protection from excessive force and limits on the use of solitary confinement. They have prohibited the death penalty and mandatory life-without-parole sentences for people who are younger than 18 when they commit crimes, as well as executions of people with intellectual disabilities. The language has also served as the basis for decades of decisions requiring that juries consider people’s individual, often trauma-filled lives before deciding whether to send them to death row.... 

More than 100 scholars and organizations have filed “friend of the court” briefs ahead of oral arguments in Grants Pass v. Johnson.  Many argue the court should let these rulings stand and continue to look to contemporary standards when deciding what is cruel and unusual. In one brief on the other side, Republican attorneys general from 20 states urged the justices to throw out the evolving standards interpretation entirely.  (Many of them also made similar arguments in a separate case, supporting Alabama’s request to execute a man with an intellectual disability.)  Among their reasons are that it “has no discernible end point” and that it requires “judges to act as sociologists.”

I somewhat doubt that many Justices will be inclined to use the Grants Pass csse to dramatically rewrite Eighth Amendment jurisprudence, but I understand why various folks are hoping or fearing such a possibility.  And, perhaps ironically, the fact that many amici have filled briefs urging the Court not to approach this case more broadly might perhaps incline some Justices to approach the case more broadly.  But in a Term full of high-profile cases with lots of broad echoes, the Justices may want to keep this one relatively simple.  And perhaps we will get a sense of matters during oral arguments in a couple of week.  In other woids, stay tuned.

Lots of notable new items on the US Sentencing Commission's website including geographic FY 2023 sentencing data

Though we are still a week away from hearing from the US Sentencing Commission about possible new amendments to the US Sentencing Guidelines, I noted that the Commission has updated its website with a bunch of new items that seemed worth flagging.  These are drawn from the new items scroll from the USSC website homepage:

TRAINING SESSIONS ARCHIVE (April 8, 2024)

You can now explore an archive of the Commission's recorded training sessions. Use the filters within the archive to find the training session that meets your specific needs. Learn More

PROBLEM-SOLVING COURTS PODCAST MINISERIES (April 9, 2024)

In this podcast miniseries, Commission staff chat with the federal judges who lead the problem-solving court programs available around the country. Parts One through Seven are out now!  Listen Here

FY23 GEOGRAPHIC SENTENCING DATA (April 8, 2024)

These data reports compare fiscal year 2023 sentencing statistics for each federal circuit, district, and state to the nation as a whole. Learn More

BASICS OF CRIMINAL HISTORY (April 8, 2024)

This updated eLearning module uses real-world scenarios to illustrate the basics of the criminal history rules as amended in 2023. Learn More

I find all the USSC's materials and content interesting, but my data nerdiness really gets hit by the data reports page with fiscal year 2023 sentencing statistics for each federal circuit, district, and state.  That page includes a US map that allows you to see that the border district of Maine had only 116 federal sentencings in FY 2023, whereas the border district of the Western District of Texas had 7,539 federal sentencings in FY 2023.  And that the District Utah had more federal sentencings in FY 2023 sentencings (761) than did New Jersey (723), even though New Jersey has nearly three times the overall population as Utah.  

Is Rahimi an "easy case" for any true originalist to rule for the criminal defendant and against the prosecution?

I have not written much recently about US v. Rahimi, in part because there is not much to write about while we wait to see how the Supreme Court chooses to apply its (new originalist) Second Amendment test to the federal criminal firearm prohibition of gun possession by persons subject to domestic violence restraining orders, 18 USC § 922(g)(8).  Moreover, based on the November Rahimi SCOTUS oral argument, it seemed like a majority of the Justices were quite 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 Nelson Lund has this notable new New York Times opinion piece, headlined "The Fidelity of ‘Originalist’ Justices Is About to Be Tested," which prompted the quesiton in the title of this post.  Here are excerpts from the piece:

Under Bruen’s originalist test, Rahimi should be an easy case. The government has not informed the Supreme Court of a single pre-20th-century law that punished American citizens, even those who had been convicted of a violent crime, for possessing a gun in their own homes. Not one.

The subject of the case, Zackey Rahimi, however, is an unsympathetic defendant.  His ex-girlfriend obtained a protective order against him on the ground that he had assaulted her, and he has been charged with several crimes involving the misuse of firearms.  Although he apparently had not been convicted of any offenses when the restraining order was issued, that order immediately and automatically criminalized his possession of a firearm under federal law.

If the court pretends that a historical tradition of such laws existed, it will not be faithful either to Bruen’s holding or to the court’s repeated insistence that the right to keep and bear arms is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.”

Imagine that an overwrought woman called her ex-boyfriend and threatened to scratch his eyes out.  If a state court ordered her to refrain from making such calls and from physically attacking him, the federal statute at issue in Rahimi would automatically make her a felon if she kept a gun in her own home.  And that would be true even if she had good reason to fear a violent attack from the ex-boyfriend or his criminal associates.  But no court would uphold a statute that made this restraining order a sufficient basis on which to criminalize her possession of a telephone.  We will soon find out whether the Supreme Court takes the Second Amendment as seriously as the First.

I generally do not find the analogy between guns and telephones (and between the Second and First Amendments) to be all that apt.  But I do find quite notable the suggestion that any true originalists should find it "easy" to determine the unconstitutionality of any laws that threaten to punish criminally any "American citizens, even those who had been convicted of a violent crime, for possessing a gun in their own homes."  In the votes and voices of a number of Justices (and others), I sometimes notice that affinity for originalism starts running out of steam when the outcomes start running in concerning directions.  Rahimi may prove to be another data point on that front in the coming months.

A second chance to celebrate Second Chance Month by registering for "Relief in the Making" conference starting tomorrow!

In this post a few weeks ago, I flagged the President's "Proclamation on Second Chance Month, 2024" and its call for "all the people of the United States to observe this month with appropriate programs, ceremonies, and activities."  In so doing, I highlighted 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 which now is just a day away (though the full series of public panels takes place on Friday).  Folks can register at this link, and here is the full program link, and here is a bit more background from this event page: 

For years, advocates spoke about the “invisible punishment” flowing from the legal restrictions and societal stigmas that burden people with any criminal record long after involvement with the justice system.  But the many concerns surrounding so-called “collateral consequences” have become more visible in legal and policy circles in recent years. Over the past decade, dozens of states have enacted laws seeking to reduce the barriers people with a criminal record face in the workplace, in housing, at the ballot box, and many other areas. 

These developments have been characterized by the Collateral Consequences Resource Center as “a full-fledged law reform movement aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system.”  But the import and impact of this modern reform movement remains unclear, in part because record relief laws and practices differ widely across jurisdictions.  Some states have made only modest reforms to their record sealing laws, while other states have enacted ambitious automatic record relief systems.  And the practical impact of record relief reforms vary dramatically depending on not just the reach of the laws, but also the resources that are devoted to implementing these laws. Intriguingly, as record relief efforts have spread at the state level, federal record relief continues to languish.

Missouri completes execution of double murderer over notable clemency requests

As reported in this AP piece, a "Missouri man was executed Tuesday for killing his cousin and her husband nearly two decades ago in an attack that left the couple’s 4-year-old daughter home alone and unharmed."  Here is more:

Brian Dorsey, 52, was pronounced dead at 6:11 p.m. after a single-dose injection of the sedative pentobarbital at the state prison in Bonne Terre, Karen Pojmann, communications director for the Missouri Department of Corrections, said in an email.  It was the first execution in Missouri this year after four in 2023, and it came hours after the U.S. Supreme Court rejected the inmate’s final appeals....

Dorsey, in a final statement, expressed remorse and sorrow for the killings. “Words cannot hold the just weight of my guilt and shame,” Dorsey said in the written statement.

Dorsey, 52, formerly of Jefferson City, was convicted of killing Sarah and Ben Bonnie on Dec. 23, 2006, at their home near New Bloomfield.  Prosecutors said that earlier that day, Dorsey had called Sarah Bonnie seeking to borrow money to pay two drug dealers who were at his apartment....

Hours before the execution, the Supreme Court turned aside both of Dorsey’s appeals without comment.  His lawyers had urged the high court to step in, saying he had shown good behavior in prison and had been rehabilitated.  They also argued a $12,000 flat fee paid to his two public defenders gave them incentive to hurry through the case.  On their recommendation, Dorsey pleaded guilty despite having no agreement with prosecutors to spare him from the death penalty.

On Monday, Republican Gov. Mike Parson denied a clemency request that included signatures from 72 current and former state corrections officers who urged the governor to commute Dorsey’s sentence to life in prison without parole.  They cited Dorsey’s virtually spotless record of good behavior behind bars.  Parson, a Republican, is a former county sheriff.  He has never granted clemency since taking office in 2018.

Parson, in a statement, said Dorsey “punished his loving family for helping him in a time of need.  His cousins invited him into their home, where he was surrounded by family and friends, then gave him a place to stay.  Dorsey repaid them with cruelty, inhumane violence, and murder.”

Missouri has scheduled its next execution June 11 for inmate David Hosier for his conviction in the 2009 killing of a Jefferson City woman.  Five people have been executed in five different states this year — Alabama, Texas, Georgia, Oklahoma and Missouri.

Parents of Michigan school shooter both sentenced to 10 to 15 years in state prison

As reported in this New York Times piece, "Jennifer and James Crumbley, who were convicted of involuntary manslaughter for failing to prevent their teenage son from killing four fellow students in the deadliest school shooting in Michigan’s history, were each sentenced on Tuesday to 10 to 15 years in prison." Here is more:

Their separate jury trials ended in guilty verdicts in February and March, making them the first parents in the country to be convicted over the deaths caused by their child in a mass shooting.

Involuntary manslaughter charges carry a penalty in Michigan of up to 15 years in prison, and prosecutors asked in sentencing memos filed to the court last week that the Crumbleys each serve at least 10 years. Both have been in jail for more than two years while awaiting trial and will receive credit for time served.

“Parents are not expected to be psychic,” Judge Cheryl Matthews of the Oakland County Circuit Court in Pontiac, Mich., said before issuing the sentence. “But these convictions are not about poor parenting. These convictions confirm repeated acts or lack of acts that could have halted an oncoming runaway train — repeatedly ignoring things that would make a reasonable person feel the hair on the back of her neck stand up.”

Before the hearing, prosecutors said that Ms. Crumbley, 46, was asking to be sentenced to house arrest on her defense lawyer’s property, rather than serving prison time. And Mr. Crumbley, 47, said that he had been wrongly convicted and his sentence should amount to the time he had already served in prison, adding that he felt “absolutely horrible” about what had happened....

The Crumbleys’ son, Ethan, was 15 when he carried out the shooting that killed Justin and Hana, as well as Madisyn Baldwin, 17, and Tate Myre, 16. Seven others were injured. Ethan Crumbley pleaded guilty to 24 charges, including first-degree murder, and was sentenced last year to life in prison without parole. He is still eligible to appeal that decision. His parents may appeal, too.

In the trials of both parents, prosecutors focused in part on their failure to remove their son from school after he made a violent drawing on the morning of the shooting. It included a written plea for help. They also emphasized Ethan’s access to a handgun that Mr. Crumbley had purchased. And they said that Ms. Crumbley had missed signs that her son was struggling with his mental health, adding that she took him to a gun range just days before the shooting.

Defense lawyers for both parents said they could not have foreseen the unspeakable violence their son would commit.

Their trials became a lightning rod for issues of parental responsibility at a time of high-profile gun violence by minors. In recent months, parents in other states have pleaded guilty to charges of reckless conduct or neglect after their children injured or killed others with guns. But the manslaughter charges against the Crumbleys were unique, and legal experts aid their trials could serve as a playbook for other prosecutors who seek to hold parents accountable in the future.

I am not familiar with Michigan's parole processes, but I sense this sentencing determination will ensure that the Crumbley parents will be serving a considerable amount of prison time.

Federal district judge references selective prosecution concerns in sentencing far-right violent protestor

I just saw this notable and extensive reporting on a notable sentencing from California last week.  The piece is headlined "Judge cites Antifa when rejecting prison for white supremacist’s former associate," and here are excerpts:  

A federal judge who believes the U.S. Department of Justice unconstitutionally prosecuted white supremacists for violence at political rallies said Thursday he knows “the government and others” will disagree with his decision to leniently sentence a man for punching a journalist in 2017.  Prosecutors wanted a year of probation and six months in prison for Tyler Laube, a former associate of Rise Above Movement founder and neo-Nazi Robert Rundo, while his lawyer asked for no prison and no probation. 

During a 24-minute hearing on Thursday in Santa Ana, California, U.S. District Judge Cormac J. Carney credited Laube for 35 days already served in jail, fined him $2,000 and ordered him to be on probation for one year.  Carney’s 22-page memorandum said he has “no doubt” prosecutors’ opposition to a lighter sentence is “focusing entirely on Mr. Laube’s past white-supremacist beliefs and ignoring the violent conduct of Antifa and the similar groups.”

“Viewing Mr. Laube’s actions in context, it does not appear he intended to single out and target a journalist,” Carney wrote.  “Violence erupted at the rally. Mr. Laube did not start the violence. Indeed, he was slapped in the face twice before engaging in any violence,” the judge continued. “Once violence started, Mr. Laube and other RAM members reacted to the Antifa members that were harassing and physically attacking Trump supporters.”

Carney said he “cannot cast aside the Constitution and ignore the mitigating factors and sentencing objectives under Section 3353(a),” referring to the federal law governing sentencings.  “The Constitution and the laws of the United States apply to everyone,” the judge wrote. “We must never forget that if the political winds change in this country, and the new government decides to turn on those not sharing the new government’s views, it will be the rights and liberties guaranteed by the Constitution and the laws of the United States that will protect us.”

The judge quoted Robert Bolt’s 1960 play A Man for All Seasons: “Yes, I’d give the Devil benefit of law, for my own safety’s sake.”... The case has a long history: In June 2019, Carney allowed Laube to withdraw his guilty plea for felony conspiracy after he dismissed Rundo and Boman’s charges on First Amendment grounds, but the U.S. 9th Circuit Court of Appeals reinstated the indictment.

Given his previous decisions, Carney likely would have allowed Laube to withdraw his plea to misdemeanor interference with a federally protected right without bodily injury, too. But the U.S. Attorney’s Office also is appealing the judge’s February dismissal order to the 9th Circuit, which already has curtailed the judge’s ability to release Rundo from jail.

If Laube withdrew his plea and Carney dismissed his charges, he could end up in court again should the 9th Circuit reverse the latest dismissal as it did in 2020 with the first dismissal. Carney also is retiring at the end of May, so the case would go to another judge. Because Laube stuck with his plea on Thursday, Carney had no choice but to impose a sentence.

I recommend the full article about these matters, which provides additional backstory and links to sentencing filings. In addition, Judge Carney's lengthy sentencing memo is a fascaniting read (with pictures).  Interestingly, in a footnote toward the close of the sentencing opinion, Judge Carney explains his selective prosecution conclusions are not essential to his sentencing determination: "even ignoring the Court’s selective prosecution finding and the fact that similarly situated individuals did not face prosecution, much less any term of imprisonment, the Court would still conclude that a sentence less than six months is appropriate because the other Section 3553(a) factors weigh in favor of a lesser sentence."

Federal district judge references selective prosecution concerns in sentencing far-right violent protestor

I just saw this notable and extensive reporting on a notable sentencing from California last week.  The piece is headlined "Judge cites Antifa when rejecting prison for white supremacist’s former associate," and here are excerpts:  

A federal judge who believes the U.S. Department of Justice unconstitutionally prosecuted white supremacists for violence at political rallies said Thursday he knows “the government and others” will disagree with his decision to leniently sentence a man for punching a journalist in 2017.  Prosecutors wanted a year of probation and six months in prison for Tyler Laube, a former associate of Rise Above Movement founder and neo-Nazi Robert Rundo, while his lawyer asked for no prison and no probation. 

During a 24-minute hearing on Thursday in Santa Ana, California, U.S. District Judge Cormac J. Carney credited Laube for 35 days already served in jail, fined him $2,000 and ordered him to be on probation for one year.  Carney’s 22-page memorandum said he has “no doubt” prosecutors’ opposition to a lighter sentence is “focusing entirely on Mr. Laube’s past white-supremacist beliefs and ignoring the violent conduct of Antifa and the similar groups.”

“Viewing Mr. Laube’s actions in context, it does not appear he intended to single out and target a journalist,” Carney wrote.  “Violence erupted at the rally. Mr. Laube did not start the violence. Indeed, he was slapped in the face twice before engaging in any violence,” the judge continued. “Once violence started, Mr. Laube and other RAM members reacted to the Antifa members that were harassing and physically attacking Trump supporters.”

Carney said he “cannot cast aside the Constitution and ignore the mitigating factors and sentencing objectives under Section 3353(a),” referring to the federal law governing sentencings.  “The Constitution and the laws of the United States apply to everyone,” the judge wrote. “We must never forget that if the political winds change in this country, and the new government decides to turn on those not sharing the new government’s views, it will be the rights and liberties guaranteed by the Constitution and the laws of the United States that will protect us.”

The judge quoted Robert Bolt’s 1960 play A Man for All Seasons: “Yes, I’d give the Devil benefit of law, for my own safety’s sake.”... The case has a long history: In June 2019, Carney allowed Laube to withdraw his guilty plea for felony conspiracy after he dismissed Rundo and Boman’s charges on First Amendment grounds, but the U.S. 9th Circuit Court of Appeals reinstated the indictment.

Given his previous decisions, Carney likely would have allowed Laube to withdraw his plea to misdemeanor interference with a federally protected right without bodily injury, too. But the U.S. Attorney’s Office also is appealing the judge’s February dismissal order to the 9th Circuit, which already has curtailed the judge’s ability to release Rundo from jail.

If Laube withdrew his plea and Carney dismissed his charges, he could end up in court again should the 9th Circuit reverse the latest dismissal as it did in 2020 with the first dismissal. Carney also is retiring at the end of May, so the case would go to another judge. Because Laube stuck with his plea on Thursday, Carney had no choice but to impose a sentence.

I recommend the full article about these matters, which provides additional backstory and links to sentencing filings. In addition, Judge Carney's lengthy sentencing memo is a fascaniting read (with pictures).  Interestingly, in a footnote toward the close of the sentencing opinion, Judge Carney explains his selective prosecution conclusions are not essential to his sentencing determination: "even ignoring the Court’s selective prosecution finding and the fact that similarly situated individuals did not face prosecution, much less any term of imprisonment, the Court would still conclude that a sentence less than six months is appropriate because the other Section 3553(a) factors weigh in favor of a lesser sentence."

Intriguing new accounting of recent crime trends and related data

Though I cannot find any detailed information about the Coalition for Law, Order and Safety, this Fox News article alerted me to this new report from the group titled "Assessing America’s Crime Crisis: Trends, Causes, And Consequences."  The report gathers crime and criminal justice in some distinct ways, and here is the report's introduction:

American communities are less safe than they were a decade ago.  That fact is undeniable.  Similarly, the evidence is clear that over the last decade, serious — especially violent — crime rose in 2015 and 2016, then briefly fell before rising again since 2020.  Early indications suggest that the steep rise in homicides in 2020-2021 has slowed, if not reversed, but not returned to levels recorded five or ten years ago.

In other words, to say crime is down is like descending from a tall peak and standing on a high bluff, saying you are closer to the ground — a true but misleading statement. The truth is that violent crime is substantially elevated in major cities (and nationally) compared to pre-2020 levels.

For other crimes, the data is often inconsistent, unreliable, or unavailable making trends difficult — but not impossible  — to discern.  The evidence we do have suggests some serious offenses (i.e., carjacking and auto theft) have continued to rise dramatically.  Other aggregate data suggests some offenses have continued their decades-long decline.

Meanwhile, Americans support for greater law enforcement and stiffer criminal penalties has increased as polls show that the public believes crime has risen, and they feel less safe.

This paper seeks to answer two important questions about public safety in America: 

• What do we know about recent crime trends and how; and
• What is contributing to this trend and why?

To answer those questions, this study will first examine the available data on crime over the past decade, analyze its value and limitations, and assess its meaning for public safety policymakers. Second, the study will analyze what policies and phenomena are driving these crime trends.

Notable new research on state cuts to Medicaid and crime

Bolts magazine has this interesting new article discussing some interesting new research headlined "“We Need to See the Bigger Picture”: How Cuts to Medicaid Hurt Public Safety." Here are some excerpts from the article, which is worth reading in full:

When a state made cuts to Medicaid, depriving people of access to health insurance, the crime rate increased: That’s the finding of a new academic study, supported by the National Institutes of Health and released as a working paper in March by four scholars who study public health.

The study comes at a time when many states are ramping up punishment in response to crime, while leaving public services largely underfunded.  One of the study’s authors, Catherine Maclean, a professor of public policy at George Mason University, tells Bolts that policymakers should keep in mind the critical value of a strong social safety net for stabilizing communities....

A number of states are contemplating further Medicaid cuts, including Kentucky, Utah, and New York.  Elsewhere, in Mississippi and South Dakota, voters have tried to force elected leaders to expand Medicaid via direct democracy, but with mixed success.  And on the national stage, Donald Trump is running for president again, calling for dramatic slashing of public funds for health coverage.

Bolts spoke with Maclean about what the Tennessee study can tell us about the link between health insurance and public safety today; about what has and hasn’t changed since 2005; and about current proposed cuts to government-provided health insurance.  “You might save some dollars in terms of Medicaid, but that may lead to some other problems with other objectives, like promoting public safety,” she warned.

Speaking of reading in full, the entire NBER woking paper article, titled "Losing Medicaid and Crime," can be found at this link. Here is its abstract:

We study the impact of losing health insurance on criminal activity by leveraging one of the most substantial Medicaid disenrollments in U.S. history, which occurred in Tennessee in 2005 and lead to 190,000 non–elderly and non–disabled adults without dependents unexpectedly losing coverage.  Using police agency–level data and a difference–in–differences approach, we find that this mass insurance loss increased total crime rates with particularly strong effects for nonviolent crime. We test for several potential mechanisms and find that our results may be explained by economic stability and access to healthcare.

Noting how distinct federal circuit appointments may impact criminal jurisprudence

I have flagged in in prior posts some prior research highlighting and lamenting that, in rcent times, former prosecutors are "vastly overrepresented on the federal bench" and that people with "careers in private practice or as federal prosecutors [make] up more than 70 percent of all sitting appellate judges."  Against that backdrop, it is interesting to see this new National Law Journal piece headlined "Biden's Judges Have Made the Judiciary More Diverse. How Are They Shaping the Law?" 

The piece's subheadline provides a summary: "While it's likely too early to see major swings in the law, the president's appointees' individual opinions on criminal law and qualified immunity show the impact the judges' diverse professional backgrounds have on their jurisprudence."  The article is short on rigorous analysis, but it still notes an (unsurprising) issue worth watching (and on which I would be eager to hear input from others).  Here are excerpts:

While it’s likely too early to see Biden’s judges creating major shifts in the law, as his first term comes to an end, court watchers say they see signs his appellate picks may be using their personal experiences in analyzing cases. Unlike previous administrations that have mainly put prosecutors and Big Law attorneys on the bench, Biden has nominated individuals with civil rights advocacy and public defense backgrounds.

“Why a judge’s past experience may be important, particularly in this example [of Judge Candace Jackson-Akiwumi], is that Biden has nominated a record number of public defenders at the circuit level,” said Jonathan King, a political science professor at West Virginia University. “As such, these judges may use their experience when interpreting laws and impacting policy in their various circuits.”

Biden broke President Barack Obama’s record for appointing the highest number of circuit judges with public defense backgrounds to the bench. And breaking from past administrations, Biden has tapped numerous appellate judges who worked at civil rights organizations such as the American Civil Liberties Union and reproductive rights groups such as Planned Parenthood.

Jessica Schoenherr, a University of South Carolina political science professor, agreed that Biden appointees’ professional experiences may influence how they view facts presented in certain cases.... “It’s maybe not surprising that we’re seeing that happen with [Biden’s] judges because they’ve got a different judicial profile at this point in terms of what kind of law they’ve worked with,” Schoenherr said. “They’ve just had different experiences with the way that the law works.”...

John P. Collins, a George Washington University law professor, said he’s watching for strong dissents from Biden appointees, particularly on conservative courts such as the Fifth Circuit or Eleventh Circuit.  In general though, Collins said Biden’s picks don’t seem as eager as Trump’s appointees did in their first years on the bench to overtly push the law in a certain direction. Several Trump-appointed judges, such as Lawrence VanDyke of the Ninth Circuit and James Ho of the Fifth Circuit, made headlines for their fiery opinions criticizing their fellow panel members and calling for circuit precedent to be overturned.

"The Great Writ of Popular Sovereignty"

The title of this post is the title of this article authored by William M. M. Kamin now available via SSRN. Here is its abstract:

American habeas corpus, long conventionally known as the Great Writ of Liberty (“GWL”), is more properly understood as the Great Writ of Popular Sovereignty (“GWPS”).  That is: a tool for We the People to insist that when our agents in government exercise our delegated penal powers, they remain faithful to our sovereign will.  Once we grasp this conceptual shift, the implications for the law of habeas are profound.

In the past fifteen years, novel archival research has shown the GWL’s founding myth to be ahistorical -- that ideas about sovereignty, rather than individual liberty, drove the common-law writ’s development in the centuries of English history running up to its reception into American law.  Given widespread consensus that (1) English history should and does drive American habeas jurisprudence and (2) the sovereigntist account of that history should now be treated as authoritative, it is puzzling that American courts and scholars have continued to cling to the GWL mythos.  Meanwhile, American habeas law is in crisis, with an ideologically cross-cutting array of scholars and jurists criticizing it as intellectually incoherent, practically ineffectual, and extravagantly wasteful.  Over the Supreme Court’s past three Terms, Justice Neil Gorsuch has led a charge to hollow out federal postconviction habeas almost entirely, arguing that habeas courts should ask only whether the sentencing court was one of general criminal jurisdiction -- and not whether it violated federal constitutional law en route to entering the petitioner’s judgment of conviction.

An accurate understanding of the English history, soundly translated into the logic of American popular sovereignty, demands reconceptualizing the American writ as GWPS.  By following that imperative, we just might save American habeas jurisprudence from its present crisis.  Most critically, a theory of GWPS would illuminate the flaws in Justice Gorsuch’s historical argument for gutting postconviction habeas.  Paradoxically, shifting from the conceptual lens of GWL to that of GWPS would yield habeas doctrine more effective in protecting individual liberty.  Finally, such a shift would bring coherence to otherwise-inscrutable questions in the theory and doctrine of American habeas.