Sentencing Law and Policy

Could Donald Trump, as felon dispossessed of guns, (further) impact Second Amendment jurisprudence?

I believe Donald Trump does not formally become a convicted felon until judgment is entered following his sentencing next month.  But it is not too early to think about some of the collateral consequences of his conviction.   Today I got to thinking about the fact that Trump, as a convicted felon, needs to soon become dispossessed of any firearms due to federal law (and also state laws) making it a serious crime for a felon to possess a gun.  This HuffPost piece, headlined "Donald Trump, Convicted Felon, Just Lost His Gun Rights," discusses these issues, and it notes that Trump has said that he owns and carries guns:

Trump rarely discusses his personal use of firearms.  But in a 2012 interview, he told The Washington Times that he held a concealed carry license in New York and owned two handguns — a .45-caliber H&K and a .38-caliber Smith & Wesson. Trump told French Magazine Valeurs Actuelles four years later, “I always carry a weapon on me.”

Not discussed by HuffPost piece is the fact that two federal circuit courts and some federal district courts have decided that the federal felon-in-possession criminal law, 18 USC § 922(g)(1), is unconstitutional as applied to non-violent offenders after the Supreme Court's landmark Second Amendment Bruen ruling.  And, of course, the Supreme Court is actively considering the reach and application of its Bruen ruling in the Rahimi cases concerning another § 922(g) prohibition on certain justice-involved persons possessing guns.  But it is unlikley the Rahimi case will clearly resolve the constitutionality of § 922(g)(1).

Donald Trump has already had a profound impact on Second Amendment jurosprudence because he appointed three Justices to the Supreme Court who had a key role in the Court's 2022 Bruen ruling.  But I cannot help but wonder if Trump's status as a non-violent felon subject to § 922(g)(1) might possibly add momentum to the developing Second Amendment jurisprudence that limits who can be forever dispossessed of firearms.  (A notable 2009 article on these issues, titled "Why Can't Martha Stewart Have a Gun?," detailed the lack of longstanding constitutional history supporting a ban on non-violent felons possessing firearms.  Perhaps it is time for an updated new title for this work:"Why Can't Donald Trump Have a Gun?".)

Prior recent related posts:

• Some sentencing basics after former President Donald Trump's convictions on 34 felony New York counts 
• Will Donald Trump make a statement on his behalf at his upcoming sentencing?

"Congress Must Abolish Acquitted Conduct Sentencing"

The title of this post is the title of this new Law 360 commentary authored by Marc Levin and Martín Sabelli. I recommend the ful piece, and here are snippets:

As shocking as this might be, federal law allows judges to impose a sentence based on acquitted conduct if the jury has convicted on at least one count.

Why? Because juries decide guilt or innocence using a reasonable doubt standard, and judges impose sentences based on a "more likely than not" standard.... Does this scenario seem even remotely close to what the framers intended by trial by jury, or what most of us believe is fair?

Allowing judges to impose severe sentences where juries have acquitted defendants undermines the fundamental principles of trial by jury, innocent until proven guilty, due process, double jeopardy and reasonable doubt — the heart of the Fifth and Sixth Amendments. Shifting this power from juries to judges also opens the door for individual biases, because the inherent diversity of a jury operates as a check on individual biases.

Unsurprisingly, this practice has been criticized by advocates across the political spectrum. While federal courts have allowed the practice, as our prisons have overflowed, some state courts have held the practice unconstitutional. Also, a host of prominent jurists, including Justices Antonin Scalia, Ruth Bader Ginsburg and Clarence Thomas, have criticized the practice.

Can we fix this problem and restore trial by jury as intended by the framers? On April 17, the U.S. Sentencing Commission — a body charged with revising sentencing rules — imposed some limits on the use of acquitted conduct in sentencing. While these changes are a welcome improvement, they still leave the door open to considering acquitted conduct in sentencing in many circumstances.

We need to go further. Congress should give life to the individual rights embedded in the Fifth and Sixth Amendments by eliminating the practice altogether.

In a positive step, a coalition of Democrats and Republicans introduced a bill to end this practice last year. The bipartisan bill, called the Prohibiting Punishment of Acquitted Conduct Act, would prohibit federal judges from considering conduct for which an individual was acquitted, unless consideration of the conduct would reduce the sentence. An identical bill passed the U.S. House of Representatives in the last Congress by a vote of 405 to 12. The bill recently passed the House Judiciary Committee unanimously. The Senate should now pass this bipartisan bill....

Jury trials — and respect for jury verdicts — protect each of us, our families and our communities. Unjust technicalities like sentencing for acquitted conduct undermine the role of juries and our bedrock founding principle that people should not be punished until proven guilty.

Part 1 of "Drugs on the Docket" podcasts on fake stash-house stings now available

In this post earlier this week, I previewed that the Drug Enforcement and Policy Center at The Ohio State University was about to start releasing episodes from Season Two of the "Drugs on the Docket" podcast.  Excitingly, as detailed on this podcast webpage, today brought the release of the first episode of this new season.  (And all of the first season's episodes are all still  available via Apple Podcasts and YouTube.)  This first episode to kick-off Seanson 2 is actually part of a extended discussion that was so chock full of content that it became a two-part series described this way at the podcast webpage:

Season 2 Episode 1 – Stash house stings with Alison Siegler and Erica Zunkel (Part 1 of 2)

Host Hannah Miller and co-host Douglas Berman, executive director of the Drug Enforcement and Policy Center, kick off Season 2 with guests Alison Siegler and Erica Zunkel from the University of Chicago.  Part 1 of this two-part episode focuses on clients ensnared in undercover stash house sting operations carried out by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and how the Federal Criminal Justice Clinic at the University of Chicago Law School sought to prove that the ATF violated the 14th Amendment Equal Protection Clause by discriminating on the basis of race when selecting its targets.

Alison Siegler is Clinical Professor of Law and Founding Director of the Federal Criminal Justice Clinic at the University of Chicago Law School; Erica Zunkel is Clinical Professor of Law at the University of Chicago Law School and teaches in the school’s Criminal and Juvenile Justice Clinic.

The many remarkable legal and policy stories that surround the fake stash-house stings continue to amaze me, and I am extremely grateful to have been part of this effort to tell parts of the story via these podcasts.  I encourage everyone to have a listen.

Will Donald Trump make a statement on his behalf at his upcoming sentencing?

Though Donald Trump just prior to trial stated that he would testify at his his New York state criminal trial, he ultimately decided  not to take the stand.  That choice was greatly influenced, I suspect, by the fact that taking the stand at trial would have subjected him to cross-examiniation by the prosecution and the risk of additional legal troubles if he were not entirely truthful when giving sworn testimony under oath.

But with the New York criminal jury trial concluded and Trump's sentencing on 34 felony counts now scheduled for July 11, what Trump can say on his own behalf takes on a different posture.  Specifically, New York criminal procedure law provides that before sentencing, the court must hear not only from the prosecution and defense attorneys, but the "defendant also has the right to make a statement personally in his or her own behalf."  I presume this personal statement in the courtroom prior to sentencing does not have to be provided under oath, nor is it subject to cross-examination.  In other words, Trump will have an opportunity to make a statement in the courtroom at his sentencing that is not subject to some legal and strategic consequences that likely led him to decide not to testify during his trial.

That said, any statement by Trump at his sentencing still could be full of legal risks.  In some cases, defense attorneys counsel their clients not to make any significant statements at sentencing if fearful that statement might rub the sentencing judge the wrong way.  And, in light of Trump's many out-of-court comments about his legal predicament, I could not help but thinking of this legendary passage from the late Judge Marvin Frankel's legendary book, Criminal Sentences: Law Without Order: 

[During] a casual anecdote over cocktails in a rare conversation among judges touching the subject of sentencing,  Judge X ... told of a defendant for whom the judge, after reading the presentence report, had decided tentatively upon a sentence of four years' imprisonment.  At the sentencing hearing in the courtroom, after hearing counsel, Judge X invited the defendant to exercise his right to address the court in his own behalf.  The defendant took a sheaf of papers from his pocket and proceeded to read from them, excoriating the judge, the "kangaroo court" in which he'd been tried, and the legal establishment in general.  Completing the story, Judge X said, "I listened without interrupting.  Finally, when he said he was through, I simply gave the son of a bitch five years instead of the four." 

I think it will be quite interesting to see if Trump decides to exercise his right under New York law "to make a statement personally" prior to his sentencing.  The predicted strategic costs/benefits for testifying at trial led to nearly all legal pundits predicting Trump would not take the stand, and they proved right.  But with the calculations and context different in a sentencing proceeding, I am not quite sure what to expect.   

Alabama executes by lethal injection double murderer 20 years after his crime

As reported in this AP piece, an "Alabama man received a lethal injection Thursday for the killing of an elderly couple in 2004, the first inmate put to death by the state since it became the first in the nation to execute an inmate using nitrogen gas months ago." Here is more:

Jamie Ray Mills, 50, was pronounced dead at 6:26 p.m. after a three-drug injection at the William C. Holman Correctional Faciilty in southwest Alabama, authorities said.  Lethal injection remains Alabama’s default method of execution unless an inmate requests nitrogen gas or the electric chair to carry out the death sentence.

Mills was convicted of capital murder at trial in the killings of Floyd Hill, 87, and his wife Vera, 72. Prosecutors said the victims were attacked with a hammer, machete and a tire tool at their home in a small community about 80 miles northwest of Birmingham.

Hours earlier, the U.S. Supreme Court declined without comment to block Thursday’s execution.  Attorneys for Mills, who maintained his innocence at his 2007 trial, had argued that newly obtained evidence showed the prosecution lied about having a plea agreement with Mills’ wife to spare her from seeking the death penalty against her if she testified against her husband. They also argued Alabama has a history of problematic executions.

Some sentencing basics after former President Donald Trump's convictions on 34 felony New York counts

I am not an expert on New York sentencing law and practice, though I expect a whole lot of folks will soon be opining on these topics now that former President Donald Trump has been convicted by a jury on 34 New York felony counts.  This CBS News piece seems to review some sentencing basics pretty well:

Trump was convicted by the jury Thursday on 34 felony counts for falsifying business records to conceal a $130,000 payment to adult film star Stormy Daniels to buy her silence before the 2016 presidential election.  The jury in Manhattan returned a guilty verdict after a trial that stretched six weeks and featured more than 20 witnesses.

Each of the 34 felony charges carries up to a $5,000 fine and four-year prison sentence.  But whether Trump will go to prison is another question — one that's up to the judge at sentencing.  The judge set a July 11 date for sentencing following the jury's verdict on Thursday.

The timing is in line with similar white-collar felony cases, where sentencing often takes place anywhere from three to eight weeks after conviction, according to Dan Horwitz, a defense lawyer who formerly prosecuted white-collar cases for the Manhattan District Attorney's office.  The sentencing will happen four days before the start of the Republican National Convention.

The minimum sentence for falsifying business records in the first degree is zero, so Trump could receive probation or conditional discharge, a sentence of no jail or up to four years for each offense.  Trump would likely be ordered to serve the prison time concurrently for each count, so up to four years, total.

"The judge could sentence him to anything between zero and the max," Horwitz said. "So he could sentence him to a period of months in jail, he could sentence him to a period of weeks in jail, he could sentence him to a sentence where he is required, for example, to go to jail every weekend for a period of time and then serve the rest of the sentence on probation."

In an analysis of comparable cases brought by the Manhattan district attorney's office, Norm Eisen, who has written a book about Trump's 2020 election-related federal indictment and served as special counsel in the first impeachment of the former president, found that about 10% resulted in imprisonment.  But the circumstances surrounding the case make any across-the-board comparison difficult.

Trump could also be sentenced to home detention, where he would wear an ankle bracelet and be monitored rather than going to jail.  Horwitz suggested that a home detention sentence, which walks a middle ground between no punishment and a stint in state prison, might be the most likely outcome.  It would also satisfy Trump's unusual security and political situation.

A home detention sentence would also make it possible for Trump to continue campaigning — albeit virtually — with the ability to hold news conferences and remain active on social media....

There are a number of factors that the court can take into consideration for sentencing, including the nature and extent of the conduct, who was hurt, whether there are victims, and acceptance of responsibility, Horwitz said.  Trump has repeatedly denied any guilt in the case....

A defendant's conduct during the trial may also play a role, so Trump's repeated violation of Merchan's gag order may be a significant factor in his sentencing. During the trial, Trump was accused over a dozen times of violating a gag order preventing him from making public comments about likely witnesses, jurors, attorneys and court staff involved in the case.

Whatever Trump's formal sentence, he is certain to endure any number of formal and informal collateral consequences as a result of his convictions.  This Politico article flags an interesting one in its headline: "There’s a real possibility Trump can’t vote in November."

Though I suspect lots of folks may be eager to discuss lots of issues beyond the specifics of Trump's upcoming NY sentencing, I would be eager to hear as much discussion of sentencing law and practice as possible in the comments.  I say that in part because there are so many interesting and intricate sentencing issues that arise in this historic and controversial case.  For example, should state prosecutors assert that, and should Merchan consider, Trump's other alleged criminal behaviors as detailed in three other pending criminal indictments are aggravating factors calling for a more severe sentence?    

BJS releases two big new (and dated) reports on 2022 correctional populations and probation/parole populations

Via email, I learned that the Justcie Department's Bureau of Justice Statistics today released these two big new data reports: "Correctional Populations in the United States, 2022 – Statistical Tables" and "Probation and Parole in the United States, 2022." Here is how BJS describes these reports:

[The correctional populations] report summarizes data on populations supervised by probation or parole agencies and those incarcerated in state or federal prisons or in the custody of local jails from 2012 to 2022. It also includes tables on sex and race or ethnicity of persons supervised by correctional systems. BJS has published statistics on correctional populations since 1985....

[The probation and parole] report provides data on adult U.S. residents under correctional supervision in the community. It includes characteristics of this population, such as sex, race or ethnicity, and most serious offense. The report details how people move onto and off community supervision, such as completing their term of supervision, being incarcerated, absconding, or other unsatisfactory outcomes while in the community. It is the 31st in a series that began in 1981.

Though it is alwaus a bit disappointing that these great data reports are already nearly 18 months behind present day realities, the BJS always deserves thanks for the great, rigorous job it does collecting and publishing these complicated data.

By 6-3 vote, SCOTUS rejects Ninth Circuit reversal of Arizona death sentence in Thornell v. Jones

In its one criminal decision among three new opinions handed down by the Supreme Court this morning, the Justices by a 6-3 vote reversed a Ninth Circuit ruling in the capital case of in Thornell v. Jones, No. 22-982 (S. Ct. May 30, 2024) (available here).  Justice Alito authored the opinion for the Court, which starts and ends this way:

In this case, we review a decision of the Ninth Circuit ordering the resentencing of a defendant who, in order to steal a gun collection, committed three gruesome killings, including the cold-blooded murder of a 7-year-old girl.  The Ninth Circuit held that the defendant’s Sixth Amendment right to the effective assistance of counsel was violated during the sentencing phase of his capital trial.  In reaching this conclusion, the Ninth Circuit substantially departed from the well-established standard articulated by this Court in Strickland v. Washington, 466 U. S. 668 (1984).  Among other things, the Ninth Circuit all but ignored the strong aggravating circumstances in this case. As a result, we must reverse the judgment below....

When a capital defendant claims that he was prejudiced at sentencing because counsel failed to present available mitigating evidence, a court must decide whether it is reasonably likely that the additional evidence would have avoided a death sentence.  This analysis requires an evaluation of the strength of all the evidence and a comparison of the weight of aggravating and mitigating factors.  The Ninth Circuit did not heed that instruction; rather, it downplayed the serious aggravating factors present here and overstated the strength of mitigating evidence that differed very little from the evidence presented at sentencing. Had the Ninth Circuit engaged in the analysis required by Strickland, it would have had no choice but to affirm the decision of the District Court denying habeas relief.  We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

Interestingly, Justuce Sotomayor's dissenting opinion (which was joined by Justice Kagan), agrees with the majority that the Ninth Circuit erred in its ineffective assistance prejudice inquiry, but she dissent because she "would vacate the judgment below and remand for the Ninth Circuit to consider the full record in the first instance."

In contrast, Justice Jackson dissents on the merits, and here opinion starts this way:

In its search for legal error in this capital habeas case, the Court makes many mistakes of its own, including misreading the Ninth Circuit’s opinion. I write separately to emphasize a particular misstep: the Court’s conclusion that “the Ninth Circuit all but ignored the strong aggravating circumstances in this case.” Ante, at 1. In my view, the Ninth Circuit’s analysis satisfied its obligations under Strickland v. Washington, 466 U.S. 668 (1984).

"Hidden Takings and the Communal Burden of Punishment"

The title of this post is the title of this new paper available on SSRN authored by G. Alex Sinha and Janani Umamaheswar.  Here is its abstract:

The American criminal legal system is notorious for subjecting those it imprisons to harsh conditions of confinement. Legal scholars are well aware of this feature of the system, and they contend regularly with its implications.  Unlike criminologists and other social scientists, however, legal scholars are much less engaged with the significance of harsh conditions of confinement for people outside the system.  Perhaps this is not surprising.  The legal implications of conditions of confinement might seem generally restricted to the people confined.  We argue to the contrary.  More specifically, we claim that harsh conditions of confinement in the American criminal legal system may violate the constitutional rights of free people in the community — specifically, the families of incarcerated people.  To make this argument, we draw on eight months of observations of a support group for family members of incarcerated people, along with 27 in-depth interviews with such family members.  We marshal their narratives to illuminate the challenges that family members face in ensuring their incarcerated loved ones’ access to necessities, like nutrition, physical safety, and post-release housing.

We find that, in the face of governmental neglect of imprisoned populations, family members experience genuine coercion to contribute money and labor to backstop the state’s carceral burden.  In doing so, they become critical to the attainment of broadly beneficial objectives of the system, like desistance from crime and successful reintegration upon release.  We translate the narratives of these participants into constitutional language, concluding that they are experiencing takings that should be cognizable under the Fifth Amendment’s Takings Clause.  The Takings Clause provides that “private property [shall not] be taken for public use, without just compensation.”  But unlike traditional or regulatory takings, the extraction of property from the loved ones of incarcerated people occurs under extreme social or moral pressure rather than pursuant to legal directives.  To capture the experience of the participants in this study, we therefore introduce and defend the concept of “hidden takings” — certain governmental seizures of private property that are effected by subjecting property owners to excessively coercive, extra-legal pressure. We then show that hidden takings fit comfortably both within the current caselaw on takings, as well as within numerous and varied theoretical accounts of what takings law should achieve.  In some respects, in fact, the case for recognizing hidden takings is stronger than the case for recognizing traditional or regulatory ones.  Notably, we find that both originalist and critical perspectives are also conducive to acknowledging hidden takings.

Local prosecutor drops all criminal charges against No. 1 golfer Scottie Scheffler

I noted in my post here two weeks ago after World No. 1 golfer Scottie Scheffler was arrested during a traffic misunderstanding that I was puzzled he was charged with four criminal offenses, including the serious felony charge of second-degree assault.  Today, a local prosecutor dropped all these charges, stating in court the evidence from the enounter did "not satisfy the elements of any criminal offenses."  Here are more details from this ESPN piece:

Criminal charges have been dropped against world No. 1 golfer Scottie Scheffler after the Jefferson County Attorney's Office in Louisville, Kentucky, said it would not pursue the case that stemmed from a traffic incident outside the PGA Championship earlier this month.

Jefferson County Attorney Mike O'Connell asked for the charges to be dismissed with prejudice -- meaning they can't be filed again in the future -- during a court hearing Wednesday.

"Based upon the totality of the evidence, my office cannot move forward in the prosecution of the charges filed against Mr. Scheffler," O'Connell said. "Mr. Scheffler's characterization that this was a 'big misunderstanding' is corroborated by the evidence. The evidence we reviewed supports the conclusion that Detective [Bryan] Gillis was concerned for public safety at the scene when he initiated contact with Mr. Scheffler. However, Mr. Scheffler's actions and the evidence surrounding their exchange during this misunderstanding do not satisfy the elements of any criminal offenses."...

Scheffler's attorney, Steve Romines, had previously said his client would plead not guilty and wasn't interested in a plea deal. "I am prepared to litigate as needed and the case will be dismissed, or we will go to trial because Scottie did absolutely nothing wrong," Romines said.

Interestingly, today also brought this new story based on a new video in which "Scottie Scheffler admitted to cops 'I should have stopped' before accusing 'over-aggressive' Detective Bryan Gillis of 'hitting me with his flashlight.'" 

Thrilled for start to Season 2 of "Drugs on the Docket" podcast

Around this time last year in this post, I flagged that the Drug Enforcement and Policy Center at The Ohio State University had just released Season One of a new podcast, "Drugs on the Docket."  All six full episodes of this first season, each running under an hour, were released at once (and are all still  available via Apple Podcasts and YouTube).  In fall of last year, the Drugs on the Docket team released, every couple weeks, some bonus "mini-episodes" which followed up on various Season 1 topics (which included the evolution of the crack cocaine sentencing, SCOTUS cases like Ruan v. US and Whren v. US, federal mandatory minimums, and much more).

Since the fall, the DEPC team has been hard at work putting together Season 2 of Drugs on the Docket, which will premire late this week.  Here is how the podcast is described via this podcast webpage along with a preview of the first episode of the new season:

Drugs on the Docket is a production of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University.  Each episode explores how U.S. court rulings — primarily those handed down from the Supreme Court — impact drug law and policy and continue to shape the War on Drugs.... The series, hosted by Hannah Miller, invites guests with expertise in criminal justice, drug policy, and drug enforcement to help us break down the sometimes complex and always interesting stories behind today’s drug law landscape.

Drugs on the Docket is produced by DEPC’s Service Engagement Project Manager Hannah Miller and Public Engagement Specialist Holly Griffin.  DEPC Executive Director Douglas A. Berman is our editorial advisor.  Music by Joe DeWitt.

The Drugs on the Docket podcast is back with Season 2!  This time around, we'll release an episode every two weeks. Episodes unpack ATF sting operations, the history of US drug policies and constitutional law, the revival of the U.S. Sentencing Commission, compassionate release and the 2018 First Step Act, the role of law enforcement in harm reduction, the relationship between stigma and substance use, and more.

Season 2 Episode 1 – Stash house stings with Alison Siegler and Erica Zunkel (Part 1 of 2)

Host Hannah Miller and co-host Douglas Berman, executive director of the Drug Enforcement and Policy Center, kick off Season 2 with guests Alison Siegler and Erica Zunkel from the University of Chicago.  Part 1 of this two-part episode focuses on clients ensnared in undercover stash house sting operations carried out by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and how the Federal Criminal Justice Clinic at the University of Chicago Law School sought to prove that the ATF violated the 14th Amendment Equal Protection Clause by discriminating on the basis of race when selecting its targets.

Alison Siegler is Clinical Professor of Law and Founding Director of the Federal Criminal Justice Clinic at the University of Chicago Law School; Erica Zunkel is Clinical Professor of Law at the University of Chicago Law School and teaches in the school’s Criminal and Juvenile Justice Clinic.

Release date: Friday, May 31, 2024  

As I have said before, in my (admittedly biased) view, the curated discussions in this "Drugs on the Docket" podcast are all quite interesting and informative.  As I have also said before, because I am eager to see this podcast continue to develop and audience (and also because my colleagues at DEPC have worked extremely hard to put this content together), I am sure to keep using this space to encourage everyone to check out new Season 2 (and old Season 1) in the coming weeks.  

Amnesty International reporting that in 2023 executions globally "soar to highest number in almost a decade"

The anti-death penalty group Amnesty International reports here on the "DEATH PENALTY 2023: Death sentences and Executions." Here is part of the start of the report online:

Executions soared to their highest number in almost a decade in 2023 with a sharp rise across the Middle East, Amnesty International said today as it released its annual report on the global use of the death penalty.

A total of 1,153 executions took place in 2023, which does not include the thousands believed to have been carried out in China, marking an increase of more than 30% from 2022. It was the highest figure recorded by Amnesty International since 2015, when 1,634 people were known to have been executed. Despite this increase, the number of countries that carried out executions reached the lowest figure on record with Amnesty International.

“The huge spike in recorded executions was primarily down to Iran. The Iranian authorities showed complete disregard for human life and ramped up executions for drug-related offences, further highlighting the discriminatory impact of the death penalty on Iran’s most marginalized and impoverished communities,” said Agnès Callamard, Amnesty International’s Secretary General.

“Despite the setbacks that we have seen this year, particularly in the Middle East, countries that are still carrying out executions are increasingly isolated. Our campaigning against this abhorrent punishment works. We will continue until we have put an end to the death penalty.”

The five countries with the highest number of executions in 2023 were China, Iran, Saudi Arabia, Somalia and the USA. Iran alone accounted for 74% of all recorded executions while Saudi Arabia accounted for 15%. Somalia and the USA carried out an increased number of executions in 2023.

There was a 20% increase in the number of death sentences handed out globally in 2023, taking the total to 2,428.

Justice Gorsuch dissents from cert denial in case contesting SCOTUS precedent allowing six-member criminal juries

Today's order list from the Supreme Court has one (non-criminal) grant of certiorari as well as one opinion dissenting from a (criminal) denial of certiorari.  This opinion, in Cunningham v. Florida, No. 23–5171, was authored by Justice Gorsuch, and jury-trial fans will want to read all three pages.  Here is how it starts and ends:

“For almost all of this Nation’s history and centuries before that, the right to trial by jury for serious criminal offenses meant the right to a trial before 12 members of the community.” Khorrami v. Arizona, 598 U.S. ___, ___ (2022) (GORSUCH, J., dissenting from denial of certiorari) (slip op., at 9).  Acutely concerned with individuals and their liberty, the framers of our Constitution sought to preserve this right for future generations.  See id., at ___–___ (slip op., at 2–3); Art. III, §2, cl. 3; Amdt. 6. Yet today, a small number of States refuse to honor its promise. Consider this case: A Florida court sent Natoya Cunningham to prison for eight years on the say of just six people.

Florida does what the Constitution forbids because of us.  In Williams v. Florida, this Court in 1970 issued a revolutionary decision approving for the first time the use of 6member panels in criminal cases. 399 U.S. 78, 103. In doing so, the Court turned its back on the original meaning of the Constitution, centuries of historical practice, and a “battery of this Court’s precedents.” Khorrami, 598 U. S., at ___ (slip op., at 6)....

Respectfully, we should have granted review in Ms. Cunningham’s case to reconsider Williams. In the years since that decision, our cases have insisted, repeatedly, that the right to trial by jury should mean no less today, and afford no fewer protections for individual liberty, than it did at the Nation’s founding.  See, e.g., Apprendi v. New Jersey, 530 U.S. 466 (2000); Ramos v. Louisiana, 590 U. S. 83 (2020).  Repeatedly, too, our cases have warned of the dangers posed by the gradual “‘erosion’” of the jury trial right.  Apprendi, 530 U.S., at 483 (quoting Jones v. United States, 526 U.S. 227, 248 (1999)). Yet when called upon today to address our own role in eroding that right, we decline to do so. Worse still, in the last two years we have now twice turned away thoughtful petitions asking us to correct ourmistake in Williams.  See Khorrami, 598 U.S., at ___ (slip op., at 10).

If there are not yet four votes on this Court to take up the question whether Williams should be overruled, I can only hope someday there will be. In the meantime, nothing prevents the people of Florida and other affected States from revising their jury practices to ensure no government in this country may send a person to prison without the unanimous assent of 12 of his peers.  If we will not presently shoulder the burden of correcting our own mistake, they have the power to do so. For, no less than this Court, the American people serve as guardians of our enduring Constitution.

A last call for papers: Federal Sentencing Reporter issue on "Booker at 20"

In this prior post a couple of months ago, I set out the full call for papers for a forthcoming (early 2025) issue of the Federal Sentencing Reporter in which we will note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created by the Supreme Court's ruling in Booker.  As noted there and in subsequent posts, the "soft" deadline for receiving drafts for this FSR issue is this week (though we may have a bit of flexibility).  For full effect, here is a full reprint of the original call:

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 relatively light use of citations.  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.

Any suggestions for whom else Donald Trump might pledge to free from federal prison "on day one" back in the Oval Office?

A few months ago, Donald Trump pledged on Truth Social that among his "first acts as your next President will be to ... Free the January 6 Hostages being wrongfully imprisoned!"   And, in a speech last night, as covered in this post, Trump sought to garner support from a libertarian crowd by announcing "If you vote for me, on day one I will commute the sentence of Ross Ulbricht, to a sentence of time served."

These clemency pledges got me to thinking that notable political contingents, or maybe even just a few key folks in a key swing state, might be able to cajole Trump into pledging to use his clemency pen a particular way.  Former NFL star Antonio Brown seemingly figured this out already, as this Fox News piece highlights he has been praising and pitching Trump on clemency fronts.  For example, given that supporters of Marilyn Mosby have so far had no success getting Joe Biden to grant her clemency, perhaps they ought to make a run at getting Trump to pledge clemency for her.   

The Mosby (tongue-in-cheek) idea aside, I do not think it would be foolish at all for Trump to seek to garner attention and favor from certain voters through clemency pledges.  Many criminal justice reform advocates have been quite disappointed that Joe Biden has not used his clemency pen more robustly and broadly.  Polling data suggests that young people and people of color are especially interested in criminal justice reform, and astute clemency pledges could make these important voting blocks take notice.

So, dear readers, any (specific or general) suggestions for whom else Donald Trump might pledge to free from federal prison "on day one" back in the Oval Office?

Homicides still way down as weather (and crime politics) heats up in 2024

A few days ago, I received an alert from my local paper about this article reporting that "data from the Columbus Division of Police showed that the city is experiencing some of the lowest levels of violence in a decade."  According to this press piece, the biggest city in Ohio has recorded only 18 murders in this calendar year, compared to 41 at this time last year.  The article also flagged that a number of other cities have also seen significant homicide declines.  

Conveniently and encouragingly, Jeff Asher posted yesterday this new substack entry detailing that Columbus, Ohio is not alone in experiencing a significant homicide decline to start 2024.  Folks should read his full posting for lots more context and details, but here are some highlights:

[M]urder is down around 20 percent in 2024 in more than 180 cities with available data this year compared to a comparable timeframe last year (as of the moment of this piece's publication).  Murder is down 20.5 percent in 183 cities with available data through at least January, down 20.2 percent in 174 cities with data through at least February, and down 20.8 percent in 59 cities with data through at least March 20....

We could still see, and perhaps should expect to see the sample's murder decline to regress towards a more normal rate of decline as the year goes on.  It's only April and there is a ton of time left in 2024 for these figures to regress, but murder is down roughly twice as much with a sample that’s twice as large as what we had last year at this time.... Murder is down more than 30 percent at the moment in Washington DC, New Orleans, Las Vegas, Cleveland, Milwaukee, Detroit, Columbus, Nashville, Philadelphia, and I could keep going....

It's not just murder data in cities pointing to a large decline.  Shooting data from the Gun Violence Archive shows a decline of around 12 percent in terms of shooting victims through March compared to 2023.  This matches the trend of declining shootings in 20 of the 25 cities with available shooting data through at least February this year. 

As readers may recall from prior posts, 2023 brought a considerable (perhaps historic) decline in homicides in the US compared to 2022 (which saw a small decline in homicides after very significant increases in homicides throughout the US in 2020 and 2021).  And my check today at the latest AH Datalytics' collection of homicide data for 2024 from 250+ US cities shows now an 18.8% cumulative decline(!) in murders across the nation's cities through more than the first third of 2024.  And a number of big cities are showing even bigger 2024 declines from police reports: Washington DC and Milwaukee homicides are down around 25%; Cleveland, Dallas and Phoenix homicides are down nearly 30%; Baltimore, Columbus, New Orleans and Philadelphia homicides are down more than 40%.

I am not sure criminologists have a clear story for why we are not seeing historicthe  homicide declines, but the many hundreds of fewer murders to start 2024 is certainly something to celebrate and to hope continue.  (I noted in a prior post that the 2023 and 2024 declines in homicide come at a time of relatively low use of the death penalty and relatively lower rates of incarceration by US standards.)  Of course, these remarkable homicide numbers could change in the months ahead, and the hotter weather of summer months historically bring an uptick in homicides.

Also sure to heat up this summer are crime politics.  I flagged in this post yesterday a recent Politico article quoting aides of President Biden suggesting the Pesident was planning to embrace tougher approaches on crime and immigration.  And today bring this lengthy New York Times piece headlined "Even as Violent Crime Drops, Lawlessness Rises as an Election Issue."  Here is a small excerpt:

Homicide rates are tumbling from pandemic highs in most cities, funding for law enforcement is rising, and tensions between the police and communities of color, while still significant, are no longer at a boiling point. But property crime, carjackings and smash-and-grab burglaries are up, adding to a sense of lawlessness, amplified on social media and local online message boards.

Mr. Trump is re-upping his blunt, visceral appeal to voter anxieties. He declared recently that “crime is rampant and out of control like never before,” promised to shoot shoplifters, embraced the “back the blue” slogan against liberal changes to police departments — and even falsely accused the F.B.I. of fabricating positive crime data to bolster Mr. Biden.

Mr. Biden, in response, is taking a more low-key approach.  He has spotlighted improving violent crime rates, promoted vast increases in funding to law enforcement under his watch and pointed to an aggressive push on gun control, as well as a revived effort to hold local departments accountable for discriminatory and dangerous policing practices in Black and brown neighborhoods.