Sentencing Law and Policy

Split Ninth Circuit panel declares federal felon-in-possession criminal law unconstitutional as applied to non-violent offenders after Bruen

Yesterday, a split Ninth Circuit panel handed down a major Second Amendment ruling in US v. Duarte, No. 22-50048 (9th Cir. May 9, 2024) (available here), to become the second circuit to find that the Supreme Court's Bruen ruling renders unconstitutional federal law's criminal prohibition in on gun possession by nonviolent felons.   The 60-page opinion for the court was authored by Judge Bea, and here is part of how it starts:

18 U.S.C. § 922(g)(1) makes it a crime for any person to possess a firearm if he has been convicted of an offense “punishable by imprisonment for a term exceeding one year.”  Steven Duarte, who has five prior non-violent state criminal convictions — all punishable for more than a year — was charged and convicted under § 922(g)(1) after police saw him toss a handgun out of the window of a moving car.  Duarte now challenges the constitutionality of his conviction.  He argues that, under the Supreme Court’s recent decision in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), § 922(g)(1) violates the Second Amendment as applied to him, a non-violent offender who has served his time in prison and reentered society.  We agree.

We reject the Government’s position that our pre-Bruen decision in United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010), forecloses Duarte’s Second Amendment challenge.  Vongxay is clearly irreconcilable with Bruen and therefore no longer controls because Vongxay held that § 922(g)(1) comported with the Second Amendment without applying the mode of analysis that Bruen later established and now requires courts to perform.  Bruen instructs us to assess all Second Amendment challenges through the dual lenses of text and history....

At step one of Bruen, we easily conclude that Duarte’s weapon, a handgun, is an “arm” within the meaning of the Second Amendment’s text and that Duarte’s “proposed course of conduct — carrying [a] handgun[] publicly for selfdefense”— falls within the Second Amendment’s plain language, two points the Government never disputes. Bruen, 597 U.S. at 32.  The Government argues only that “the people” in the Second Amendment excludes felons like Duarte because they are not members of the “virtuous” citizenry.  We do not share that view.  Bruen and Heller foreclose that argument because both recognized the “strong presumption” that the text of the Second Amendment confers an individual right to keep and bear arms that belongs to “all Americans,” not an “unspecified subset.” Bruen, 597 U.S. at 70 (quoting District of Columbia v. Heller, 554 U.S. 570, 581 (2008)). Our own analysis of the Second Amendment’s publicly understood meaning also confirms that the right to keep and bear arms was every citizen’s fundamental right....

At Bruen’s second step, we conclude that the Government has failed to prove that § 922(g)(1)’s categorical prohibition, as applied to Duarte, “is part of the historical tradition that delimits the outer bounds of the” Second Amendment right. Bruen, 597 U.S. at 19. The Government put forward no “well-established and representative historical analogue” that “impose[d] a comparable burden on the right of armed self-defense” that was “comparably justified” as compared to § 922(g)(1)’s sweeping, no-exception, lifelong ban. Id. at 29, 30. We therefore vacate Duarte’s conviction and reverse the district court’s judgment entering the same. 

The 10-page dissent authored by Judge Milan Smith concludes this way:

The majority reads Bruen, a Supreme Court decision reviewing New York’s gun licensing regime, as an invitation to uproot a longstanding prohibition on the possession of firearms by felons. Bruen extends no such invitation.  As Justice Alito cautioned, Bruen decides “nothing about who may lawfully possess a firearm.” Bruen, 597 U.S. at 72 (emphasis added).

One day — likely sooner, rather than later — the Supreme Court will address the constitutionality of § 922(g)(1) or otherwise provide clearer guidance on whether felons are protected by the Second Amendment. But it is not our role as circuit judges to anticipate how the Supreme Court will decide future cases.... Until we receive contrary definitive guidance from the Supreme Court, or from a panel of our court sitting en banc, we are bound by our decision in Vongxay.

I respectfully dissent and express the hope that our court will rehear this case en banc to correct the majority’s misapplication of Bruen.

The location and timing of this ruling is almost as interesting as its substance.  Many hundreds of § 922(g)(1) cases are prosecuted in this big circuit each year, so the echo effects of this ruling could prove profound (though I would guess not that many involve persons with only nonviolent priors).  And, we are likely only weeks away from the Supreme Court finally handing down an opinion in the Rahimi case to address the application of Bruen to a different section of § 922(g). 

Most folks reasonably expect the Rahimi ruling to provide more guidance on how the Bruen Second Amdndment test is to be applied to broad federal criminal gun control laws.  I would expect coming Rahimi opinion will lead to the Ninth Circuit reviewing this important Duarte ruling in some way, though whether that is in the form of en banc review or panel reconsideration might turn on what Rahimi actually says.

Should prosecutors be seeking waivers of all Fourth Amendment rights "for as long as 20 years" in plea deals?

The question in the title of this post is prompted by this notable new Bolts article wih this full headline: "'An Impossible Choice': Virginians Asked to Waive Constitutional Rights to Get a Plea Deal; Governor Glenn Youngkin vetoed a bill that would have barred prosecutors from making defendants waive protections against unreasonable police searches as a condition of pleas." Here are excerpts, with a little emphasis added in spots:

For Virginians facing criminal convictions with plea deals on the table, the unalienable constitutional rights they typically enjoy suddenly become negotiable. Under state law, prosecutors can ask people to sign away their Fourth Amendment protections against unreasonable search and seizure in exchange for reduced charges or sentencing. Black Virginians are much more likely than their white counterparts to get plea deals that waive these rights, which can open people up to random and invasive police searches long after they’ve resolved their cases.

In the capital city of Richmond, 96 percent of people who agreed to waive their Fourth Amendment rights in 2020 were people of color, data obtained by Bolts show. The city’s population was 45 percent Black and eight percent Hispanic. That same year in Lynchburg, Virginia, the second largest city, Black people accounted for 78 percent of all plea waivers signed, while they only made up 28 percent of the population.

The practice, known as a Fourth Amendment waiver, permits police to search a person, their home, or vehicle for a specified number of years after a conviction, even if they’ve completed their sentence of incarceration or parole, and regardless of proof they committed a crime.  People living under the waiver cannot challenge the legality of anything police find during a search.  Lengths of the waivers can stretch long beyond probationary periods — prosecutors have ordered some people to waive their Fourth Amendment rights for as long as 20 years, according to data obtained by Virginia advocacy group Justice Forward through public records requests and shared with Bolts.

Prosecutors say the waivers improve public safety. Colette McEachin, the commonwealth attorney for the city of Richmond since 2019, told Bolts the waivers are “very effective” in resolving cases and put people “on notice” once they’re released from incarceration. She also said the waivers prevent people from reacting violently to otherwise unlawful police searches. “They are aware that they’ve given up that right, because they had to sign an agreement that says that. Hopefully there will not be a dangerous situation where they are upset that law enforcement is searching them.”...

Across the country, roughly 95 percent of cases in state courts are resolved through plea bargains.  Prosecutors in some Virginia counties make the waiver a mandatory condition of a plea bargain, and people who choose not to accept them face the threat of a longer sentence after a trial.... Prosecutors can ask people to waive protections such as the right to a jury trial, the right to see evidence against them, or the right to erase their record later as a condition of a plea deal. Fourth Amendment waivers also happen across the U.S., in states including California, Georgia, and Idaho.

Virginia was slated to abolish the practice earlier this year, when legislators passed a bill along party lines that would have prohibited plea deals and court orders that “waive, release, or extinguish” defendants’ Fourth Amendment rights.  State Senator Saddam Azlan Salim, a Democrat who has backed criminal justice reform legislation in the past, was the sponsor. Supporters of the legislation cited concerns about prosecutors disproportionately leveraging the waivers against people of color.  Governor Glenn Youngkin, however, killed the legislation in March, vetoing it along with 21 other criminal justice-related bills, stating they “undermine public safety.”...

Typically, police must have a reasonable suspicion that someone committed a crime to stop and search them.  But once a person signs away their Fourth Amendment rights, police are allowed to stop them at random. There’s no way to track the full scope of how often police stop people with Fourth Amendment waivers because the searches typically aren’t logged unless police find something.  While Virginians on supervised release already agree to allow probation officers to randomly search their homes and vehicles, the Fourth Amendment waivers take these searches to the extreme; the search privileges outlined under the waivers go beyond what probation officers may search....

Ashley Shapiro, a public defender in Richmond who says her clients are often made to choose between accepting a waiver or a tougher sentence, argues that the waivers have provided a shield for police to illegally stop people. “Usually it’s that they stop people on the street for no reason and then get lucky that they happen to have a Fourth Amendment waiver,” she said.

The waivers are often wide-reaching.  A copy of a Richmond plea agreement including a waiver states a person waiving their rights “shall submit to search and seizure of his person, property, place of residence, vehicle and personal effects, at any time of day or night by any law enforcement officer with or without a search warrant, warrant of arrest or reasonable cause for a period of 3 years from the date of his release from active incarceration.”...

McEachin, the Richmond commonwealth attorney, said she looks at the facts of each case before deciding whether to ask for a waiver as part of a plea deal. In drug and gun cases, she said, asking a person to give up their Fourth Amendment protections is particularly important. “Those are the individuals who we want to be able to search in the future, if you’ve developed information that they have resumed criminal behavior,” she said.

When asked about the data showing that roughly 96 out of every 100 people with waivers in Richmond are people of color, McEachin insisted her office’s use of them is not racially discriminatory. “I think that probably most of the people who have been charged are African American, or brown or Latino,” she conceded, but continued, “I think that everybody who’s an adult always has difficult choices, and this probably is a difficult choice. But it is a difficult choice that that person has arrived at through their own actions.”

Use of the waivers often comes down to the discretion of individual prosecutors, and it varies across Virginia. Vikram Kapil, the head public defender for the southern counties of Halifax, Mecklenburg, and Lunenburg, said that only prosecutors in Lunenburg County try to include them in plea deals, especially for drug offenses. “We’re pushing back on it,” he said. “We generally say, ‘No, you shouldn’t do this.’ It’s tough telling someone who’s sitting in jail who isn’t able to go see their family and see their loved ones.”...

There was little opposition to the bill to abolish the waivers. The powerful Virginia Association of Commonwealth’s Attorneys was the only organization to come out against the legislation. “Fourth amendment waivers are a tool prosecutors may use for a few reasons, including for the benefit of the defendant and public safety,” Amanda Howie, administrator of the association, wrote in an email to Bolts.

Regularly readers likely know I am not a big fan of prosecutors using plea deals to secure broad waivers of future rights, though I usually focus my ire on federal efforts to demand waivers of rights to future appeals or other means to seek to block individuals' rights to access court reviews of prison sentences.  But broad waivers concerning all future Fourth Amendment rights, especially when they last beyond the terms of any formal sentence, strike me as the first step toward even more extreme efforts by government agents to insulate government power from any real accountability or scrutiny.  I wonder if prosecutors in Virgninia or elsewhere might soon just ask for blanket waivers of all constitutional and statutory rights.  Maybe we could just call them somethng like serfdom waivers, although I believe even serfs had some protected rights.

"The Blackstone Ratio, Modified"

The title of this post is the title of this new paper auhtored by Murat Mungan now available via SSRN. Here is its abstract:

In his discussion of evidentiary policies, Blackstone famously noted that "it is better that ten guilty persons escape than that one innocent suffer" (Blackstone 1769). The conventional wisdom among lawyers, judges as well as academics holds that accepting this statement as a maxim necessitates the adoption of pro-defendant evidentiary rules. It is also commonly believed that costs associated with false convictions being greater than failures to punish offenders due to the presence of punishment costs provides a utilitarian rationale for Blackstonian principles. After formalizing Blackstonian ratios (either as marginal rates of substitution or, alternatively, as the ratio between quantities of errors), I show these conventional views are incorrect. I then consider a simple modification of the Blackstone ratio which would make it more consistent with commonly held views about its implications and justifications.

Trigger warning for lawyers: there is a lot of math in this short paper.

Spotlighting how a change in federal Administrations could lead to a big change in federal capital punishment administration

Joe Biden campaigned on a pledge to work toward abolishing the death penalty, and the federal death penalty has been mostly (though not entirely) dormant during his time in office.  No federal executions and very few new federal capital cases have moved forward during his time in office.  (And while a President has almost no means to impact or even influence state capital practices, it is also notable that there have been relatively few state executions and state death sentences since 2021 as well.)  Though I doubt President Biden plans to make much of his capital punishment record in his re-election bid — especially because many in his base likley wish he would do more to advance abolition — I sense his approach to the death penalty would be largely the same if he were to get a second term in the Oval Office.

In contrast, and as highlighted by this new HuffPost piece, federal death penalty administration is surely likely to shift gears dramatically if we have another Trump Adminstration.  This piece's full headline highlights its coverage: "There's A GOP Plan For An Execution Spree If Trump Wins The White House: Buried on page 554 of the plan is a directive to execute every remaining person on federal death row — and dramatically expand the use of the death penalty."  Here are excerpts:

Trump, the GOP’s presumptive 2024 presidential nominee, has openly fantasized about executing drug dealers and human traffickers.  He reportedly suggested that officials who leak information to the press should be executed, too.  And behind the scenes, there’s a team of pro-Trump conservatives who are pushing for a second Trump term that involves even more state-sponsored killing than the first.

Last year, a coalition effort by conservative groups known as Project 2025 released an 887-page document that lays out policy goals and recommendations for each part of the federal government.  Buried on page 554 is a directive to execute every remaining federal death row prisoner — and to persuade the Supreme Court to expand the types of crimes that can be punished with death sentences.

Gene Hamilton, the author of the transition playbook’s Department of Justice chapter, wrote that the next conservative administration should “do everything possible to obtain finality” for every prisoner on federal death row, which currently includes 40 people.  “It should also pursue the death penalty for applicable crimes — particularly heinous crimes involving violence and sexual abuse of children — until Congress says otherwise through legislation,” he wrote.  In a footnote, Hamilton said that this could require the Supreme Court to overrule a previous case, “but the [Justice] department should place a priority on doing so.”

I have heard of Project 2025, but I am not at all sure how truly impactful its desired blueprints are regarding what we might expect from an actual Trump Administration.  After all, as noted in this post from July 2020, the "Biden-Sanders Unity Task Force" produced a big report calling for, among other items on a criminal-justice reform wish list, the future Biden Administration to: "abolish the death penalty at the federal level, and incentivize states to follow the federal government’s example."  Not only has that not happened, no formal steps have been taken by President Biden to make it happen.

Perhaps the most interesting part of this story relates to the possiblity that a future Trump Administration might seek to actively pursue or support the application of the death penalty in child rape cases.  Current Supreme Court Eighth Amendment doctrine, of course, holds that capital punishment for child rape is unconstitutional. See Kennedy v. Louisiana, 554 U.S. 407 (2008).  But Florida enacted a new capital child rape statute last year, and Tennessee legislators recently sent a similar bill to its Governor.   Given that three of the four Justices in dissent in Kennedy are still on the Court (Justices Thomas, Alito and the Chief), while none of the Justices in the Kennedy majority is on still on this Court, there is strong reason to suspect the current Supreme Court might well be prepared to reconder Kennedy at some point.  That possibility might become even that much more likely if the US Justice Department was actively advocating for Kennedy's reversal.

Split Supreme Court limits the extent of hearings required in civil forfeiture proceedings

The Supreme Court this moring issued a series of opinion in Culley v. Marshall, No. 22-585, concerning the process that is due in civil forfeiture proceedings.   This Culley ruling limits, by a 6-3 vote along the usual ideological lines, what is constitutionally required.  Justice Kavanaugh authored the opinion for the Court, which is relatively short and starts this way:

When police seize and then seek civil forfeiture of a car that was used to commit a drug offense, the Constitutionequires a timely forfeiture hearing. The question here is whether the Constitution also requires a separate preliminary hearing to determine whether the police may retain the car pending the forfeiture hearing. This Court’s precedents establish that the answer is no: The Constitution requires a timely forfeiture hearing; the Constitution does not also require a separate preliminary hearing.

Justice Gorsuch, joined by Justice Thomas, authored an extended concurrence that starts this way:

I agree with the Court that, at a minimum, the Due Process Clause requires a prompt hearing in civil forfeiture cases. Ante, at 5.  I agree that no legal authority presented to us indicates a prompt hearing must necessarily take the form Ms. Culley and Ms. Sutton suppose. Ante, at 6. I agree, too, that Mathews v. Eldridge, 424 U. S. 319 (1976), does not teach otherwise.  Ante, at 9.  Under its terms, judges balance “the private and governmental interests at stake,” Mathews, 424 U. S., at 340, to determine “what procedures the government must observe” when it seeks to withhold “benefits” “such as welfare or Social Security,” Nelson v. Colorado, 581 U. S. 128, 141 (2017) (ALITO, J., concurring in judgment).  That test does not control — and we do not afford any particular solicitude to “governmental interests” — in cases like this one where the government seeks to deprive an individual of her private property.  But if all that leads me to join today’s decision, I also agree with the dissent that this case leaves many larger questions unresolved about whether, and to what extent, contemporary civil forfeiture practices can be squared with the Constitution’s promise of due process.  I write separately to highlight some of them.

And Justice Sotomayor, joined by Justices Kagan and Jackson, authored an extended dissent that starts this way:

A police officer can seize your car if he claims it is connected to a crime committed by someone else. The police department can then keep the car for months or even years until the State ultimately seeks ownership of it through civil forfeiture. In most States, the resulting proceeds from the car’s sale go to the police department’s budget. Petitioners claim that the Due Process Clause requires a prompt, post-seizure opportunity for innocent car owners to argue to a judge why they should retain their cars pending that final forfeiture determination. When an officer has a financial incentive to hold onto a car and an owner pleads innocence, they argue, a retention hearing at least ensures that the officer has probable cause to connect the owner and the car to a crime.

Today, the Court holds that the Due Process Clause never requires that minimal safeguard. In doing so, it sweeps far more broadly than the narrow question presented and hamstrings lower courts from addressing myriad abuses of the civil forfeiture system. Because I would have decided only which due process test governs whether a retention hearing is required and left it to the lower courts to apply that test to different civil forfeiture schemes, I respectfully dissent.

A faculty meeting and other commitments my prevent me from having all the time I need to consume and comment on these opinions.  But this looks quite interesting and I hope to be able to share some thoughts before too long.

Split Oklahoma Court of Criminal Appeals grants state's request to add an extra month between scheduled executions

As reported in this local article, the "Oklahoma Court of Criminal Appeals has decided future executions will be set 90 days apart 'unless circumstances dictate modification'."  Here is more on an interesting ruling in response to an interesting request:

Oklahoma Attorney General Gentner Drummond had asked for more time to reduce the stress on the volunteer execution teams. He was joined in the request by Steven Harpe, the executive director of the Department of Corrections. "The present pace of executions, every 60 days, is too onerous and not sustainable," Harpe said.

The decision on 90-day intervals was announced Tuesday. It was not unanimous. Two of the five judges called for executions to remain at 60 days apart.  "Individuals in many professions face demanding and arduous duties as part of their job requirements," Judge Gary Lumpkin wrote in opposing more time. "Personnel in our military continuously face life and death situations but they step up each day and do their duty."

All five judges agreed, though, that executions will be set one at a time from now on instead of in phases. The state has a backlog because of a hiatus on lethal injections that lasted almost seven years. A dozen have been carried out since they resumed in 2021 at the Oklahoma State Penitentiary in McAlester. The latest was April 4.

Drummond and Harpe in January asked the court to go to 90-day intervals once the second phase of executions is completed in June.... Drummond last year called for a change to 60-day intervals to reduce the stress on staff and give more time for training. The Court of Criminal Appeals agreed, resetting seven executions.

The court acknowledged Tuesday that scheduling executions in phases has not worked.  Judges told the attorney general to timely notify them each time an inmate is executed, gets a stay or has a stay lifted so the next execution can be set.

Lumpkin on Tuesday pointed out the Department of Corrections carried out 18 executions in 2001, seven in 2002 and 14 in 2003. "It is time to realize the victims and their families must be remembered and the law established by the Oklahoma Legislature followed," he wrote. "As shown in 2001-2003 by the actions of DOC employees, they can step up to meet the challenges placed before them when proper leadership is provided."

UPDATE: A helpful reader helped me find my way to this report on the ruling that includes the full order from the Oklahoma Court of Criminal Appeals in In re The Setting of Execution Dates.

Notable pending cert petition asks Justices to resolve split over reach of appeal waivers in a notable setting

I recently noticed that an intriguing and distinctive federal case that I heard about some months ago was flagged here as a "Petition of the Week" over at  SCOTUSblog.  I recommend the full SCOTUSblog post for the case details, but here is the start and close of that post:

The vast majority of criminal cases — 98% of those in federal court, and 95% of those in state court — are resolved through plea bargains.  As a condition for pursuing a lesser conviction or shorter sentence, prosecutors may also require someone who pleads guilty to a crime to sign away their right to appeal.  This week, we highlight petitions that ask the court to consider, among other things, whether a plea deal with an explicit waiver of the right to appeal bars defendants from later asking a court to vacate their conviction if the conduct of which they were accused, it turns out, was not a crime at all....

In Khadr v. United States, Khadr asks the justices to grant review and reverse the D.C. Circuit’s ruling.  He argues that the courts of appeals are divided over whether criminal defendants can  ever waive their right to argue that their conviction was legally invalid by pleading guilty. Just as “[p]lea agreements based upon non-criminal conduct cannot” support a conviction, Khadr writes, nor do general waivers of appeal “bar appellants from seeking review of their convictions for conduct that is not criminal.”

The full cert petition in Khadr is available at this link, and here is how it presents the question that the Justices will consider at a conference later this month:

Plea agreements often include a general waiver of the right to appeal. Circuits are divided over whether the inclusion of such a term bars a defendant from bringing a direct appeal of a conviction, when a subsequent controlling judicial decision has held that the conduct to which the defendant pled guilty was not a crime.  The Second, Third, and Fourth Circuits hold that an appeal may proceed.  In the decision below, a divided panel of the D.C. Circuit joined the Seventh and Ninth Circuits in holding that it may not.

Does a plea agreement that includes a general appellate waiver foreclose a direct appeal when a defendant has pled guilty to conduct that was not criminal?

Rounding up a number of new prison stories and commentaries

We are only a few days into the work week, but I have already come across a number of notable new pieces about a number of notable prison issues.  I figured a round-up here would allow me to cover a lot of interesting ground:

From The Guardian, "Appetising, delicious food served up to prisoners? It works for the Nordic countries"

From The Hill, "Prison education programs ready to expand, but new Pell Grants slow to arrive"

From KTVU Fox 2, "FCI Dublin transfers complain of poor treatment, retaliation at other prisons"

From the Montgomery Advertiser, "Six incarcerated people sue Alabama leaders, alleging unconstitutional prison labor"

From NBC News, "Elizabeth Holmes sees more months trimmed from prison release date"

From the New York Times, "When Prison and Mental Illness Amount to a Death Sentence"

From Vox, "America’s prison system is turning into a de facto nursing home"

New report from Campaign for the Fair Sentencing of Youth details the state of juvenile LWOP sentences in the US

Via email, I learned of this new report from the Campaign for the Fair Sentencing of Youth titled "Unusual & Unequal: The Unfinished Business of Ending Life Without Parole for Children in the United States."  Because this group advocates for the abolition of juvenille LWOP sentences, this report primarily laments that there are still a few hundred persons convicted as juveniles serving this sentence, though it notes the fact that "over the past decade, ... the population of [juvenile offenders] serving [an LWOP] sentence decreas[ed] by 85%."  

The report include a lot of data about juve LWOP laws and the (re)sentencing of many offenders in the wake of the Supreme Court's major Eighth Amendment rulings in Miller and Montgomery.  I recommend the short report to anyone eager to understand the current state of juvenile LWOP sentencing.  The report concludes with the kind of advocacy that has been a hallmark of the Campaign for the Fair Sentencing of Youth:

A concentration of a few states have unevenly complied with Miller and the possibility of resentencing provided by Montgomery.  Some have refused to comply at all.

This uneven implementation of the Miller decision has a particularly profound impact on racial disparities among those serving JLWOP.  An analysis of those deemed worth protecting from JLWOP and those deemed fit for the sentence suggests that as long as JLWOP remains a sentencing option, it will be imposed in ways that produce arbitrary and racially discriminatory outcomes.  It will also be leveraged to legitimize the extreme sentences of children in other forms, that still fail to consider their unique capacity for positive change.

Miller and the ensuing procedures guiding JLWOP imposition have not been sufficient guardrails to combat these risks. States must go further to address these inequalities and recognize what science and common sense have clearly demonstrated: that children are categorically different from adults, less culpable, and should be provided opportunities to demonstrate their tremendous potential for positive growth and change.

A little calm before the coming SCOTUS storms?

The Supreme Court has about 8 weeks to issue over 40 opinions in cases argued this Term if it is going to wrap its work before the start of July (as is its yearly custom).  That means we could and should expect about five rulings per week, on average, though I expect we will get fewer than that number through May and perhaps a lot more the last few weeks of June.   The Court has announces that this Thursday (May 9) will be an opinion day, and suspect we may be three or more opinions on that day.  

As the legal world awaits big rulings from SCOTUS in a variety of legal arenas, here I always forcus on the Court's criminal justice work.  In that space, I count nearly a dozen notable criminal cases still pending, some constitutional and some statutory.  Though a number of these could be blockbusters, there are at least three constitutional cases that I am especially eager to see the Court's opinions.  In these three cases, based in part on oral argument, I am already pretty sure which party is likely to prevail, but just how the opinions are written could still prove really interesting:  

US v. Rahimi, No. 22-915 [Arg: 11.7.2023]

Erlinger v. US, No. 23-370 [Arg: 3.27.2024]

City of Grants Pass, Oregon v. Johnson, No. 23-175 [Arg: 4.22.2024]

In all of these cases, dealing with the Second, Sixth and Eighth Amendments, respectively, just how the Court gets to its results could matter a whole lot.  In addition, in all these cases, I am also interested in how particular Justices vote and what certain Justices might have to say along the way.

I strongly doubt we will get any of these rulings before the last few weeks of June (though I could imagine Erlinger coming a bit earlier).  In the meantime, there are more than a few other criminal cases that could prove important and interesting.  Indeed, that Culley v. Marshall, No. 22-585 (argued October 30) and Brown v. US, No. 22-6389 (argued November 27) have not yet been resolved has me wondering if intriguing opinions are in the works.

Any thoughts on these cases or others yu may be watching for, dear readers?  

New Prison Policy Initiative report details “Inmate Welfare Funds" used to cover "prison operations, staff salaries, benefits, and more"

The Prison Policy Initiative this morning released this new report titled "Shadow Budgets: How mass incarceration steals from the poor to give to the prison." This lengthy report subtitle details its findings and themes: "Revenues from communication fees, commissary purchases, disciplinary fines, and more flow into “Inmate Welfare Funds” meant to benefit incarcerated populations. However, our analysis of prison systems across the U.S. reveals that they are used more like slush funds that, in many cases, make society’s most vulnerable people pay for prison operations, staff salaries, benefits, and more." Here is how the report gets started:

Prisons and jails generate billions of dollars each year by charging incarcerated people and their communities steep prices for phone calls, video calls, e-messaging, money transfers, and commissary purchases.  A lot of that money goes back to corrections agencies in the form of kickbacks.  But what happens to it from there?  As it turns out, much of this money flows into special accounts called “Inmate Welfare Funds.”  These welfare funds are supposed to be used for non-essential purchases that collectively benefit the incarcerated population.  In reality, poorly written policies and lax oversight make welfare funds an irresistible target for corruption in jails and prisons: in many cases, corrections officials have wide discretion to use welfare funds as shadow budgets for subsidizing essential facility operations, staff salaries, vehicles, weapons, and more, instead of paying for such things out of their department’s more transparent and accountable general budget.

How do welfare funds get funded?  How is the money used, and who gets to decide?  We analyzed laws and policies governing welfare funds in all 50 state prison systems and the federal Bureau of Prisons to find out.  We identified at least 49 prison systems that have some form of welfare fund, though it’s likely that every system has one.  In most cases, they are funded through communications fees and store purchases, as we mentioned, as well as interest accrued on individual trust accounts.  Some prison systems also fund them with sums of money confiscated from people who escape custody, contraband, or disciplinary fines.

Although welfare funds are generally meant to be used for recreation equipment, entertainment, social and educational opportunities, and other non-essential benefits for the incarcerated population as a whole, prison policies frequently allow them to pay for facility construction and maintenance, hygiene products for indigent people, release-related costs and other goods and services that are supposed to come out of a department’s general budget.  Our analysis reveals that most policies are so vague that prison officials enjoy wide discretion to spend incarcerated peoples’ money as they please — sometimes spending it on luxury perks for staff.

"What is Penal Minimalism?"

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

This article provides an account of penal minimalism.  It argues that penal minimalism presents four core features. First, criminal law and the criminal legal system have a role to play in addressing culpable wrongful harm and other culpable wrongs.  Second, minimalism embraces human rights and liberal criminal law and criminal procedure rights and principles.  Third, minimalism requires that every person that is involved in or affected by the commission of culpable wrongful harm or culpable wrongs is treated as a fellow human being whose interests and well-being must be considered in deciding whether and how the criminal legal system should be used.  Fourth, minimalism embraces the last resort principle (or variations of it), which requires that criminal law and the criminal legal system should only be used as a last resort when no other social responses or public measures would suffice to adequately advance a legitimate goal, such as addressing harmful behavior.

The article also makes clear that these four features do not exhaust minimalist accounts and discussions.  Minimalist accounts can embrace a range of theories of punishment, policing, investigation, prosecution, adjudication, sentencing, and post-sentencing — though many theories about these issues are incompatible with minimalism. Minimalist accounts can also include other principles besides the four core features this article identifies, such as what this article calls the bidirectional accountability principle.  Minimalism can be combined with bureaucratic, communitarian, democratic, liberal, non-extreme versions of penal abolitionist, racial justice, reconstructivist, republican, and other accounts of criminal punishment, criminal law, and the criminal legal system.  Minimalism can also be combined with various theories of the state and of justice.  In this regard, there is not a single penal minimalism.  Rather, there are penal minimalisms.  And each and all of them have insights to contribute to discussions about how to make and strive for a fair penal system and a just society in the United States and beyond.

The latest encouraging violent crime data ... and differing takes on US crime realities

This past Friday, the Major Cities Chiefs Association released this accounting of violent crime for the first quarter on 2024 based on surveys of 68 cities in the US.  These data included homicide totals suggesting that, cumulatively, homicides have dropped nearly 20% in these cities at the start of 2024 compared to the same period in 2023 (which also experienced a homicide decline compared to 2022).  In addition, these data indicate (notable but lesser) declines in rape, robbery and aggravated assault. 

These data do not, of course, reflect the crime realities in every region on the US, and crime trends certainly could charge over the course of 2024.  Still, these data provide ever more reason to believe that COVID-era crime spikes in 2020 and 2021 have not become the new normal.  Indeed, the homicide rate to start 2024 based on the preliminary data would seem to be right now lower than the pre-pandemic homicide rate in US for 2019 and almost as low as the least lethal year in modern US history in 2014.  Again, these data are not complete and could change, but the broader violent crime data and trends are surely encouraging.  

Of course, crime data past and present always provide a basis for various crime takes, and here are three I have seen recently that are notable and notably different:

From the Brennan Center, "Violent Crime Is Falling Nationwide — Here’s How We Know"

From the City Journal, "Enduring Lawlessness in Our Cities: Crime continues to plague the American urban core at much higher levels than before the pandemic."

From External Processing, "Violence is Plummeting in the US!: And We Should Thank The Invisible Touch of Local Government"

UPDATE on 5/6: Here one more notable data take on crime that seemed worth adding to the discussion:

From Jeff-alytics, "Is The NIBRS Transition To Blame For Our Current Crime Trends?; Short answer: No. Longer answer: Also no."