Sentencing Law and Policy

Reviewing legal complications for Jan 6 rioters convicted of federal charge SCOTUS might overturn

I have discussed briefly in some prior posts some of the legal intricacies that certain Jan 6 defendants could face if the Supreme Court in Fischer v. US were to reverse a key statutory charge brought by federal prosecutors or many cases.  Helpfully, Law360 has this new lengthy discussion of these issues under the headline "If High Court Upends Jan. 6 Conviction, What Happens Next?".  These issues are potentially so complicated, it is hard to map out or summarize all the particulars.  But this article provides an effective overview and gets started this way:

In the coming weeks, the U.S. Supreme Court will decide whether prosecutors overstepped by using a felony obstruction charge against a rioter who stormed the U.S. Capitol building on Jan. 6, 2021.  In oral arguments in April, a majority of justices seemed poised to side with the defendant, a man named Joseph Fischer, who shouted, "Charge!" as he ran into the Capitol building and then assaulted a police officer.

If Fischer prevails, results will likely be mixed for the more than 350 other defendants charged under the same statute for their role in the riot on Jan. 6, in which a mob of former President Donald Trump's supporters seized the Capitol and interrupted the electoral ballot count that would eventually declare Joe Biden the winner of the 2020 presidential election.  For more than 120 defendants who have already been sentenced under the statute, challenging their convictions would depend on whether they've preserved their right to appeal, whether they've already used their shot at vacating a sentence and what other charges would remain.

It's not unusual for the high court to find prosecutors were overbroad in their interpretation of a criminal statute — in recent years, justices have limited the applicability of honest services fraud, aggravated identity theft and computer fraud statutes.  Nor is it unusual for people who have been convicted under an outdated interpretation of the law to face procedural hurdles in getting resentenced, criminal defense attorneys say. 

Time bars on criminal appeals and limits on post-conviction motions point to the federal courts' "very, very strong preference for finality," according to Erica Zunkel, a former federal public defender and a law professor who teaches in the University of Chicago Law School's Criminal and Juvenile Justice Clinic.  "There are different rules and regulations for how you can challenge convictions, how long you have to appeal, what issues you can raise and not raise," she said. "It wouldn't be novel for the Supreme Court to say the interpretation of this statute is overbroad. Truly, this is what happens day in and day out in the criminal system. And then the question is, what to do when the Supreme Court has changed the law."

"Gender Matters: Women on Death Row in the United States"

The title of this post is the title of this new article now available via SSRN and authored by Sandra Babcock, Nathalie Greenfield and Kathryn Adamson.  Here is its abstract:

This article presents a comprehensive study of 48 persons sentenced to death between 1990 and 2023 who presented as women at the time of their trials.  Our research is the first of its kind to conduct a holistic and intersectional analysis of the factors driving women’s death sentences.  It reveals commonalities across women’s cases, delving into their experiences of motherhood, gender-based violence and prior involvement with the criminal legal system.  We also explore the nature of the women’s crimes of conviction, including the role of male co-defendants and the State’s use of aggravating factors.  Finally, we reveal for the first time the extent to which capital prosecutions are dominated by men — including judges, elected District Attorneys, defense attorneys, and juror forepersons — and explain why gender matters in determining who lives and who dies.

We present our data against the backdrop of prevalent theories that seek to explain both the rarity of women’s executions and the reasons why certain women are singled out for the harshest punishment provided by law.  We explain why those frameworks are inadequate to understand the role that systemic gender bias plays in women’s capital prosecutions.  We conclude by arguing for more nuanced research that embraces the complexities in women’s capital cases and accounts for the presence of systemic and intersectional discrimination.

Will Congress ever actually do something about federal overcriminalization?

Concerns about overcriminalization, especially at the federal level, have long been bipartisan.  Nearly 15 years ago, the Heritage Foundation and the National Association of Criminal Defense Lawyers teamed up on a big report with a focus on mens rea issues.  More than 10 years ago, the U.S. House of Representatives unanimously created the "Overcriminalization Task Force of 2013" to study and conduct hearings on the problem of overcriminalization.   A couple of days before leaving the White House, President Trump issued this Executive Order on "Protecting Americans From Overcriminalization Through Regulatory Reform" (though President Biden rescinded this order a few months later).  Earlier this week, the GOP-led House Judiciary Subcommittee on Crime and Federal Government Surveillance held this hearing titled "Overreach: An Examination of Federal Statutory and Regulatory Crimes," at which all the witnesses assailed federal overcrminalization.  And so, too, did the Ranking Democratic Member of the House Judiciary Committee in this opening statement.

But, as the title of this post suggests, bipartisan complaints about federal overcriminalization seemingly has not resulted in much (any?) significant congressional action in the form of actual statutory legal reforms.  Of course, this is a pattern we see in many arenas: talking in general terms about a legal problem often proves much easier than actually settling on reform particulars for legislative enactment.  Still, just the fact of this past week's "Overreach" hearing leads me to believe there are still a number of lawmakers who might really want to get something done in this space.  And yet, because there is no major consituency or significant voting block that will be always eager to press Congress on these topics, I fear the easy and likely right answer to the question in the title of this post has to be "No."

Notable review of 30 murders still on death row in Alabama after judges overrode jury life recommendations

AL.com has this interesting and detailed review of every death row defendant in Alabama who was sent to the row by a judge after a jury did not recommend a death sentence.   The article is headlined, "These 30 Alabama Death Row inmates are waiting to die because judges overruled juries," and here is how it sets up its discussion of these cases:

Despite a 2017 Alabama law banning judges from sentencing defendants to death when juries recommend life in prison, 30 inmates remain sentenced under those circumstances on death row.

A bill that would require courts to resentence people sentenced to death by judicial override was recently killed by a legislative committee, leaving those inmates to face death sentences juries did not want.

Why did the judges in these cases decide to overrule the juries? A look at the inmates’ appeals offers a glimpse into the judges’ thought processes.

In one case, the judge theorized the jury was “probably emotionally and mentally worn out” after the defendant’s family asked them to spare their relative’s life.

In others, judges said jury “outbursts” showed they were incapable of rendering a death sentence recommendation. Others said the heinousness of the crimes was enough to warrant execution.

"The Puzzling Persistence of Capital Punishment"

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

For over 250 years, Western intellectuals have been pronouncing capital punishment a barbarity doomed to be swept into the dustbin of history.  The death penalty, we have repeatedly been told, is an “anachronism” inconsistent with the spirit of the modern age — a relic that would, in a generation or two, fade away.  What is distinctive about recent decades is the confidence and monolithic quality of elite opinion, at least in the West.  There is a swelling confidence that the death penalty is, at last, at the cusp of extinction.

This Article questions the descriptive claim that the death penalty is dying, either in the United States or in the world at large.  Simply counting the number of nations that have technically abolished the death penalty fails to capture the apparent permanence of capital punishment.  Many non-Western civilizations retain the death penalty with a vigor that surprises and disappoints Western intellectuals.  And even within the United States, given the prohibitive cost of imposing a death sentence, it is remarkable how determined so many Americans are to continue to execute the worst of criminals.

As argued in this Article, the simplest answer to the puzzle of capital punishment’s persistence is that the retributive impulse is, as Justice Potter Stewart observed, “part of the nature of man.”  The answer is so obvious that what is puzzling is not the persistence of the death penalty but that some people regard this persistence as puzzling.  The dismay of modern Western intellectuals at the recurring failure of abolitionist efforts points to defining features of that intelligentsia.  Since the Enlightenment, many intellectuals have regarded nature as a weak and even nonexistent constraint on human progress.  It is from this perspective that the persistence of capital punishment, so seemingly rooted in human nature, comes to sight as such a puzzling disappointment. 

A much different federal sentence for a different crypto criminal

The trial and sentencing of Sam Bankman-Fried to 25 years in federal prison for his crypto criminality garnered a whole lot of attention earlier this years.  The plea and sentencing of another crypto criminal got a whole lot less attention, perhaps in part because his crimes and sentence were different in kind.  This press article, headlined "Binance founder Changpeng ‘CZ’ Zhao sentenced to 4 months, will enter prison as country’s richest inmate," provides some of the interestingly different details (with links from the original):

Changpeng “CZ” Zhao once sat atop the crypto industry as the founder and CEO of Binance, the world’s leading crypto exchange.  On Tuesday, a judge in Seattle federal court sentenced Zhao to four months in prison as part of a plea deal — but the multibillionaire will still retain most of his wealth.

After two years marked by the stunning collapse of crypto companies including Sam Bankman-Fried’s FTX, the Justice Department brought criminal charges against Binance and its CEO in November, though the exchange remained operational.  Unlike the DOJ’s case against Bankman-Fried, or other alleged crypto criminals such as Terraform Labs’ Do Kwon, Zhao and Binance reached a settlement with prosecutors, along with a slew federal agencies including the Treasury Department and Commodity Futures Trading Commission.

Zhao’s sentencing marks the conclusion of the process, with Judge Richard Jones ruling that the crypto entrepreneur — estimated to be worth around $43 billion, making him the richest inmate to serve time in the U.S. — must pay a $50 million personal fine in addition to his time behind bars.  In court, Zhao expressed contrition for his “mistakes” as CEO, though he noted that Binance implemented a compliance program. “In my mind, I wanted to do everything possible before stepping down as CEO,” he said before Jones.

The judge argued that Zhao’s “better to ask forgiveness than permission” philosophy was troubling, but ultimately decided on a lesser sentence than the 36 months requested by prosecutors. “Everything I see about your history and characteristics are of a mitigating nature and a positive nature,” Jones said, citing Zhao’s dedication to Binance and low likelihood to re-offend.

Zhao founded Binance in 2017, and it became the largest crypto exchange in just six months. Amid its meteoric growth, however, Binance struggled to implement effective “know your customer” and anti–money-laundering regimes — an embarrassing reality laid bare in complaints filed by the CFTC and Securities and Exchange Commission in 2023, including internal messages revealing that executives were aware of widespread compliance violations.  Despite — or perhaps owing to — Binance’s wildcat approach, Zhao became a global icon for the crypto industry, appearing at conferences from Portugal to the United Arab Emirates, which he made his de facto headquarters.  Still, as U.S. authorities circled around the world’s leading crypto companies, reports emerged that the DOJ was building a case against Binance....

In November, Attorney General Merrick Garland announced that the DOJ, along with the CFTC and Treasury Department, had reached a settlement with Binance and Zhao on charges related to money-laundering violations at the exchange.  The company agreed to pay $4.3 billion in fines spread among the agencies, which represented the largest enforcement action in Treasury Department history.  Notably, the settlement did not include fraud charges, and the SEC did not participate in the joint action. The agency continues to litigate its case against Binance in the U.S. District Court for the District of Columbia, where a judge recently held a hearing on Binance’s motion to dismiss the lawsuit.  The lack of more serious charges, along with the relatively light slap on the wrist for Zhao, led watchdog groups such as Better Markets to argue the settlement represented a “miscarriage of justice.”...

While Zhao’s plea deal laid out a potential sentence of 18 months in prison, prosecutors filed a memo last week requesting he serve 36 months, citing the “magnitude of Zhao’s willful violation of U.S. law and its consequences” and arguing that it would “not just send a message to Zhao but also to the world.”  In a concurrent filing, Zhao’s lawyers wrote that he “deeply regrets his offense” and asked for no time in prison, suggesting instead he be sentenced to house arrest. The request included letters from more than 160 friends and business associates, including members of the ruling families in the UAE and former U.S. ambassador to China Max Baucus, a former U.S. senator who serves on Binance’s advisory board.  Ultimately, Jones sided in part with Zhao’s team during Tuesday’s hearing, arguing against the prosecution’s proposed extended sentence given the lack of evidence that Zhao knew of illegal activity.

"A World Without Federal Sentencing Guidelines"

The title of this post is the title of this notable new article authored by Sam Merchant and now available via SSRN. Here is its abstract:

Most participants and observers of the criminal-justice system perceive the Federal Sentencing Guidelines as excessively harsh.  A foundational question has persisted since the creation of the Guidelines: is a guideline-based regime actually preferable, or should we embrace complete judicial discretion in sentencing?  For decades, analysts have resorted to hypothetical cases to explore this issue.  But a little-known world exists in which real federal sentences are imposed without any reference to sentencing guidelines: U.S. Sentencing Guideline §2X5.1.  This Article is the first to compare actual sentences imposed with and without guidelines for the same offenses and same types of offenders.

The analysis reveals that judges tend to impose harsher sentences in the world without sentencing guidelines. Variability is also more pronounced in sentences without guidelines: after a conviction for child endangerment, some parents received two years in prison and others received fifteen (even after adjusting for severity).  Two Black men convicted of a fourth and fifth non-accident DUI received ten years in prison while other offenders received probation (the median sentence is around twelve months’ imprisonment).  Recent Supreme Court cases affecting tribal jurisdiction, and the January 6, 2021, “Capitol Breach” cases, have led to an explosion in the number of these cases in many districts.

This Article argues that sentencing within a guideline framework, or within a data-based framework when guidelines are inapplicable, provides more certainty and minimizes unwarranted disparities.  The conclusions offer critical insights to states or other systems that do not currently have sentencing guidelines or do not meaningfully collect sentencing data.  Finally, this Article offers recommendations to courts, the United States Probation Office, and the Sentencing Commission to help advance a more just and efficient sentencing system.

Notable new compassionate release ruling finding home confinement difficulties justified sentence reduction

I received from a colleague an interesting new federal court order granting a § 3582 sentence reduction motion based in part on the difficulties associated with extended home confinement. The full ruling in US v. Reynods, No. CR-12-84-GF-BMM-6 (D. Mont. April 30, 2024), is available for download below.  Here is one key passage from the ruling:

The Court finds that extraordinary and compelling reasons exist to warrant a reduction of Reynolds’s sentence.  18 U.S.C. § 3582(c)(1)(A)(i). Reynolds’s age, medical conditions, home confinement status, and long sentence would not rise to the level of extraordinary and compelling when viewed individually.  These factors appear, however, to rise to that level when viewed together.  Reynolds’s advanced age increases her need for consistent, adequate medical care.  Reynolds’s status on home confinement makes it more difficult to schedule medical appointments and impossible to obtain Medicare or supplemental insurance.  Reynolds’s advanced age also makes commuting more difficult.  Reynolds’s status on home confinement prevents, however, Reynolds from obtaining housing closer to her work, UAs, and counselor.  The Court finds that these factors interact with each other to create extraordinary and compelling reasons to reduce Reynolds’s sentence.

Download Reynolds Order Redacted Filed (002)

Pew Research Center updates its accounting of "What the data says about crime in the U.S."

John Gramlich has updated this helpful overview article on US crime realities at the Pew Research Center under the headline "What the data says about crime in the U.S."  I recommend the full piece for all the data particulars, which includes data on perceptions of crime as well as reporting rates and clearance rates.  Here is how the discussion is set up at the start of the article:

A growing share of Americans say reducing crime should be a top priority for the president and Congress to address this year. Around six-in-ten U.S. adults (58%) hold that view today, up from 47% at the beginning of Joe Biden’s presidency in 2021.

With the issue likely to come up in this year’s presidential election, here’s what we know about crime in the United States, based on the latest available data from the federal government and other sources.

"Electronic Prison: A Just Path to Decarceration"

The title of this post is the title of this new paper authored by Paul Robinson and Jeffrey Seaman now available via SSRN. Here is its abstract:

The decarceration movement enjoys enthusiastic support from many academics and activists who point out imprisonment’s failure to rehabilitate and its potential criminogenic effects.  At the same time, many fiscal conservatives and taxpayer groups are critical of imprisonment’s high costs and supportive of finding cheaper alternatives.  Yet, despite this widespread support, the decarceration movement has made little real progress at getting offenders out of prison, in large part because community views, and thus political officials, are strongly committed to the importance of doing justice — giving offenders the punishment they deserve — and decarceration is commonly seen as inconsistent with that nonnegotiable principle.  Indeed, almost no one in the decarceration movement has attempted to formulate a large-scale decarceration plan that still provides for what the community would see as just punishment.

In this Article, we offer just such a plan by demonstrating that it is entirely possible to avoid the incarceration of most offenders through utilizing non-incarcerative sanctions that can carry a total punitive effect comparable to physical prison.  New technologies allow for imposing “electronic prison” sentences where authorities can monitor, control, and punish offenders in a cheaper and less damaging way than physical prison while still doing justice.  Further, the monitoring conditions provided in electronic prison allow for the imposition of a wide array of other non-incarcerative sanctions that were previously difficult or impossible to enforce.  Even while it justly punishes, electronic prison can dramatically increase an offender’s opportunities for training, treatment, education, and rehabilitation while avoiding the problems of unsupported families, socialization to criminality, and problematic reentry after physical incarceration.  And, from a public safety standpoint, electronic prison can reduce recidivism by eliminating the criminogenic effect of incarceration and also provides longer-term monitoring of offenders than an equivalently punitive shorter term of physical imprisonment.  Of course, one can imagine a variety of objections to an electronic prison system, ranging from claims it violates an offender’s rights to fears it may widen the net of carceral control. The Article provides a response to each.

Electronic prison is one of those rare policy proposals that should garner support from across the political spectrum due to effectively addressing the complaints against America’s incarceration system lodged by voices on the left, right, and center.  Whether one’s primary concern is decarcerating prisoners and providing offenders with needed treatment, training, counseling, and education, or one’s concern is reducing crime, imposing deserved punishment, or simply reducing government expenditures, implementing an electronic prison system would provide a dramatic improvement over America’s current incarceration policies.

A long accounting of Justice Thomas' long disaffinity for his key vote in Almendarez-Torres

In this post a couple months ago, I asked "Might Justice Thomas advocate for entirely eliminating the Apprendi's prior-conviction exception in Erlinger?".  That post discussed briefly, on the eve of a SCOTUS argument about the reach of jury trial rights, that Justice Thomas has argued 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."  But that concurrence came only a few years after Justice Thomas had been a key vote in Almendarez-Torres to allow prior conviction facts to be treated not as elements for constitutional purposes.

Law360 has this new lengthy commentary covering this ground much more thoroughly under the headline "Thomas' Long Quest To Undo A 'Grave Constitutional Error'."  This long essay merits a full read, and here is how it starts and finishes:

A quarter-century after Justice Clarence Thomas cast a pivotal vote against jury trial rights and rapidly regretted it, his relentless campaign to undo the controversial precedent is suddenly center stage with a serious shot at succeeding, as judges and lawyers increasingly deem the decision dubious and the U.S. Supreme Court chips away at its edges....

It's hard to say just how close Justice Thomas is to convincing four of his colleagues to overrule Almendarez-Torres. Justices Barrett and Gorsuch have appeared open to the idea, and Justice Gorsuch was joined by Justice Sotomayor in the Wooden concurrence, which spotlighted jury trial rights for "every fact essential to an individual's punishment."

During the Erlinger arguments, Justice Ketanji Brown Jackson asked, "If there is a history and tradition of fact-finding by the jury with respect to recidivism ... what is the basis, then, for the Almendarez-Torres carveout?"

However, Justice Samuel Alito appears unlikely to provide a helping hand, given that he has railed against the high court's 2000 decision in Apprendi, which said juries must evaluate facts that augment maximum penalties, except for the fact of a prior conviction. "Although Apprendi purported to rely on the original understanding of the jury trial right, there are strong reasons to question the court's analysis on that point," Justice Alito wrote in a solitary dissent when the high court decided Alleyne v. U.S. in 2013.

That skepticism apparently hasn't waned; at the Erlinger arguments, Justice Alito noted that "Almendarez-Torres is ... an established precedent of the court," and asked, "If we were to reexamine that, would it then be appropriate to reexamine the entire question that was opened up in Apprendi?"

So while Almendarez-Torres might be teetering, it could ultimately cheat death, as it has done for decades.  There's very little doubt, though, that as long as the precedent endures with Justice Thomas on the high court, he'll continue the campaign he commenced 24 years ago.

It's a campaign that's now familiar to followers of the Supreme Court's criminal law docket, including [Eric] Feigin, who, after finishing his opening statement at the Erlinger arguments, didn't seem very surprised by the first question from the bench.

"Wouldn't it be cleaner, though, to just simply overrule Almendarez-Torres?" Justice Thomas asked. After a brief pause, laughter filled the courtroom as Feigin replied, "I had a suspicion you might ask me that question, Justice Thomas."

"Proportionalities"

The title of this post is the title of this new essay authored by Youngjae Lee and published online in the Notre Dame Law Review Reflection. Here is its abstract:

“Proportionality” is ubiquitous.  The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history.  But that is not the only place where one encounters the concept of proportionality in law and ethics.  The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality.  Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of civilians.  Finally, constitutional theorists around the world outside the United States have been at work for decades on the principle of proportionality as a constitutional principle.  When so many different ideas come under the same label, confusion or at least ambiguity that could encourage confusion can easily creep in, which can lead to repeated mistakes and perpetuation and validation of erroneous thinking.  Accordingly, this Essay first discusses various ways in which the idea of proportionality is used in law and legal theory and documents and corrects certain misunderstandings and misleading arguments in the academic literature, particularly in the context of the Cruel and Unusual Punishments Clause of the Eighth Amendment of the United States Constitution.  This Essay then suggests that a better understanding of the term can yield new analytic and normative perspectives with which we might more effectively evaluate our current system of criminal law, policing, and punishment.

An abridged and overdue weekend round-up of recent stories and commentary

I have not had time to do a round-up post in a number of weeks, and I surely cannot here flag all the sentencing/corrections pieces that have caught my eye over that time.  But, to cover a lot of ground in a short space, here are some links to pieces of possible interest to readers on an array of topics.  As always, I welcome comments on which stories and commentaries may merit more attention:

From the AP, "Starting over: Women emerging from prison face formidable challenges to resuming their lives"

From The Appeal, "Biden’s Cannabis Pardons Made Progress. A Federal Expungement Statute Would Go Further."

From CBS News, "Louisiana man sentenced to 50 years in prison, physical castration for raping teen"

From The DP3 Substack (Death Penalty Policy Project), "DP3 Analysis: More Than 10% of U.S. Exonerations in 2023 Involved Wrongful Use or Threat of the Death Penalty"

From Fox News, "California crime reform gets 'unheard of' support from DAs, small businesses, progressive mayors"

From The Hill, "There’s nothing woke about ruling against sleep deprivation in prison"

From The Marshall Project, "They Killed Their Abusive Partners. Now Their Sentences Could Be Reconsidered."

From the Missouri Independent, "Mandatory minimum sentences are an old idea, but not a good one"

From the New York Times, "Black Prisoners Face Higher Rate of Botched Executions, Study Finds"

From Newsweek, "California Democrats Keep Being the Victims of Crime"

From NOLA.com, "New Orleans serial killer who targeted gay men granted parole after 46 years inside Angola"

From Prisons, Prosecutors, and the Politics of Punishment, "States’ Dismal Reaction to Covid in Prisons, Especially for the Elderly"

From Verdict, "Judges, Heretics, and Capital Punishment"

From The War Horse, "‘Consequences of War’–Veterans Incarcerated at Higher Rates and Face Longer Sentences"