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June 8, 2024

Noticing that nitrogen gas as an execution method is not (yet) proving so popular

This lengthy new CNN article, headlined "Execution by nitrogen hypoxia doesn’t seem headed for widespread adoption as bills fall short and nitrogen producers object," highlights that other states have not yet followed Alabama's path-breaking lead in a new execution method.  Here is how the article begins:

The day after Alabama carried out the first-known US execution using nitrogen gas, its attorney general sent a clear message to death penalty states that might want to follow suit: “Alabama has done it, and now so can you.”

Indeed, in the weeks immediately following the January execution of Kenneth Smith, it appeared a handful of states were listening, introducing bills that would adopt the method known as nitrogen hypoxia or a similar one.  Officials behind each framed the legislation as an alternative method that could help resume executions where they had long been stalled.

But months later — as the circumstances of Smith’s death continue to fuel debate about nitrogen hypoxia — it’s also increasingly unclear whether more states will, in earnest, follow Alabama in implementing the method, which involves replacing the air breathed by the condemned inmate with 100% nitrogen, depriving them of oxygen.  Oklahoma and Mississippi have also legalized nitrogen hypoxia, but Alabama, which plans to execute a second inmate with nitrogen gas this fall, is the sole state to have put someone to death using it.

Only one of the recently proposed state bills authorizing such a form of execution has been signed into law: Two were stuck before committees when their state legislatures adjourned this year, and a sponsor of the third acknowledged its future is uncertain.

June 8, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0)

"DPA Discounts"

The title of this post is the title of this new paper now available via SSRN authored by Todd Haugh and Mason McCartney. Here is its abstract:

There is a longstanding debate over the propriety of corporate deferred and nonprosecution agreements, those semi-private settlements entered into between prosecutors and companies under criminal investigation.  That debate is occurring in the shadow of the growing use of these DPAs and NPAs, a trend that recent DOJ policy changes suggest will only increase.  Regardless of where one stands on the debate, all agree that the fair, consistent, and transparent awarding and application of these agreements is paramount. 

Based on an empirical analysis of more than ten years of DPAs and NPAs used in Foreign Corrupt Practices Act cases, we find that the monetary penalties imposed on companies are consistently discounted below the low end of the fine range calculated pursuant to the Organizational Sentencing Guidelines, sometimes even below the monetary benefits companies received from their wrongdoing.  Further, the culpability score calculations made pursuant to the Guidelines, which are designed to calibrate a company's ultimate penalty with its level of wrongdoing, are not statistically significant in determining penalties.  Instead, it appears a hardened norm has developed at the DOJ of giving an almost uniform 25% discount off the low end of the fine range regardless of a company's culpability.  This norm is remarkably consistent despite wide variability in corporate behavior and the likely bargaining positions of prosecutors and corporate defendants.  These findings call into question the current oversight of DPAs and NPAs and, ultimately, their use in combatting corporate crime, thereby shedding new empirical light on what has become the primary means of holding our most high-profile corporate wrongdoers accountable.

June 8, 2024 in Federal Sentencing Guidelines, Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (55)

US Sentencing Commission starts releasing latest "Quick Facts" publications

I noticed that the US Sentencing Commission has started releasing a new set of its terrific "Quick Facts" publications with updates drawing on the USSC's full fiscal year 2023 data.  Long-time readers have long heard me praise the USSC for producing these convenient and informative short data documents, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format." Here are the newesr postings by the USSC on the "Quick Facts" page:

Offender Groups


There are any number of interesting factual nuggets in these documents that are fascinating, but I continue to be struck by how much of the federal caseload (and federal prison population) is consumed by drug cases and especially methamphetamine and various opioid. Crack cocaine and marijuana cases, which have long garnered so much attention, are now just a tiny piece of an otherwise still large federal drug war reality.

June 8, 2024 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

June 7, 2024

Rounding up some capital punishment stories from the week that was

Amid a busy week with lots of travel, I have not had a chance to cover any number of notable sentencing stories making headlines at the start of June.  I am hopeful that this weekend will provide me with some time to do a broader round-up of a broad array of sentencing news and commentary.  For now, I will be content to provided abridged coverage of some capital punishment pieces catching my eye:

From the AP, "Execution date set for Missouri inmate, even as he awaits hearing on claim of actual innocence"

From CNN, "He spent months visiting death row inmates and witnessed three executions. Here’s what he’s learned"

From HuffPost, "‘Rebel Nun’ Documentary Aims To Reinvigorate Push To Abolish Death Penalty"

From the New York Times, "A Death Row Prisoner Tells of Living Through a Botched Execution"

From the Phoenix New Times, "Rachel Mitchell: I’ll execute death row prisoner if Kris Mayes won’t"

From WION, "‘Doomsday’ triple-murder case: Chad Daybell sentenced to death for murder of wife and girlfriend’s 2 children"

June 7, 2024 in Death Penalty Reforms | Permalink | Comments (1)

June 6, 2024

"How Neuroscience Can Improve the Sentencing of Defendants with Autism Spectrum Disorder"

The title of this post is the title of this book chapter now available via SSRN authored by Colleen Berryessa and Carolina Caliman. Here is its abstract:

Defendants with Autism Spectrum Disorder (ASD) face a myriad of difficulties at every stage of the legal process-which not only can negatively affect their experiences in court but also the fairness, efficacy, and legitimacy of their outcomes at sentencing.  This chapter explores how advances in neuroscience can help positively impact the sentencing and aftercare of defendants with ASD in the United States, specifically focusing on the role of neuroscience in shaping more appropriate and prosocial legal decision-making during the sentencing proceedings of diagnosed defendants.

First, the chapter will discuss how neuroscience may aid legal decision-makers to better contextualize an ASD diagnosis and its neurodiversity during sentencing proceedings.  Then, it will explore how neuroscience can be used to cultivate better models of care and service innovations when developing and implementing sentencing accommodations for defendants with ASD.  Finally, the chapter will describe how neuroscience is being used to increase the education, awareness, and training of legal decision-makers, including judges, attorneys, and court personnel, on ASD and its forensic relevance to sentencing and other legal processes.

June 6, 2024 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (15)

US Sentencing Commission sets out broad, general request concerning proposed priorities for 2024 to 2025 amendment cycle

USSC-Seal_vFFLast Friday, the US Sentencing Commission released this interesting document, its "Federal Register Notice of Proposed 2024-2025 Priorities."  I had been waiting to get an "official" email from the sentencing commission describing the document before blogging about it, and late yesterday that email came with this heading: "A Request from Judge Carlton W. Reeves, Chair, U.S. Sentencing Commission."  Here is the text of the email, which serves to summarize the gist of the Federal Register Notice:

I’m writing to ask you for a small favor. Most summers, the Sentencing Commission announces the work we plan to prioritize over the coming year.  This summer, to mark the 40th anniversary of the Commission’s creation (and twenty years post Booker), we’re doing something different. We’re asking people – including you – to tell us what to do this year and in the years to come.

My request is this: please take five minutes of your time to tell the Commission how we can create a fairer, more just sentencing system.  Tell us how to revise the Guidelines.  Tell us what issues to study or what data to collect.  Tell us what workshops to conduct, what hearings to hold, what advisory groups to convene, or what ways the Commission can better serve you.  Or even just tell us what big picture issues you’d like us to tackle – or what technical problems you’d like us to look into.

Trust me, I know how busy daily lives are, so we’ve made it easy to give us your thoughts.

You can type a paragraph (or even a sentence or two!) into our Public Comment Submission Portal at: https://comment.ussc.gov.  If you want to write a letter, you can submit it through the Portal, too, or via snail mail to United States Sentencing Commission, One Columbus Circle, N.E., Suite 2-500, Washington, D.C. 20002-8002, Attention: Public Affairs – Priorities Comment.

It doesn’t matter how you speak to us. And it doesn’t matter how short or long your comment is.  What matters is that you speak to us.  Please encourage your colleagues to do the same.

One comment can make the difference. Remember: when you speak to the Commission … you will be heard.


Carlton W. Reeves

I am very pleased that the Commission, after two years of intricate work on a range of pressing issues, is now asking for help while seemingly being prepared to take a big picture look at the full sentencing system and the Commission's own work therein. Notably, the formal Federal Registar Notice frames this big picture inquiry in terms of key statutory provision of the Sentencing Reform Act. Here is how it substantively starts:

In light of the 40th anniversary of the Sentencing Reform Act of 1984, Pub. L. 98–473, 98 Stat. 1987 (1984), the Commission intends to focus on furthering the Commission’s statutory purposes and missions as set forth in the Sentencing Reform Act, including:

(1) Establishing “sentencing policies and practices for the Federal criminal justice system that . . . assure the meeting of the purposes of sentencing”—namely, rehabilitation, deterrence, just punishment, and incapacitation. 28 U.S.C. 991(b)(1)(A).

(2) Establishing “sentencing policies and practices for the Federal criminal justice system that . . . provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities.” 28 U.S.C. 991(b)(1)(B).

(3) Establishing “sentencing policies and practices for the Federal criminal justice system that . . . reflect, to the extent practicable, advancement of knowledge of human behavior as it relates to the criminal justice process.” 28 U.S.C. 991(b)(1)(C).

(4) “[M]easuring the degree to which the sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing.” 28 U.S.C. 991(b)(2).

There is a lot more to the USSC's official notice (in pdf form here), but the message from the Commission seems pretty clear: it is prepared to, and is perhaps even eager to, start (re)considering any and all aspected of the federal sentencing system.  Kudos to the USSC for starting off its next cycle of work this way.

June 6, 2024 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

June 5, 2024

"Donald Trump can still be president, but he could be barred from being a bartender, car salesman — or real estate developer"

The title of this post is the title of this new Prison Policy Initiative briefing authored by Brian Nam-Sonenstein. The subtitle of the briefing captures its themes: "The former president’s conviction spotlights how state policies make it hard for people with felony convictions to find good jobs." Here is how it starts:

Last week, former President Donald Trump was convicted of 34 felonies in New York — becoming the first former (and perhaps future) president to be convicted of a felony.  While the conviction will not prevent him from pursuing the presidency, he nonetheless joins over 19 million people in America with felony convictions.  Unlike the vast majority of people with this status, Trump’s immense wealth and power will likely insulate him from the struggles most will face in securing much less prestigious jobs.  That’s because many states permit if not outright facilitate bias against hiring people with records — especially roles that require professional licenses.

June 5, 2024 in Collateral consequences | Permalink | Comments (24)

Louisiana legislature passes law authorizing surgical castration as punishment for child sex crimes

As reported in this AP article, "Louisiana judges could order surgical castration for people convicted of sex crimes against young children under legislation approved Monday, and if Republican Gov. Jeff Landry signs it into law, the state apparently would be the first with such a punishment."  Here is more:

The GOP-controlled Legislature passed the bill giving judges the option to sentence someone to surgical castration after the person has been convicted of certain aggravated sex crimes — including rape, incest and molestation — against a child under 13.

A handful of states — including California, Florida and Texas — have laws in place allowing for chemical castration. In some of those states, offenders can opt for the surgical procedure if they prefer. Bu the National Conference of State Legislatures said it is unaware of any states that allow judges to impose surgical castration.

For more than 16 years, judges in Louisiana have been allowed to order those convicted of such crimes to receive chemical castration, though that punishment is rarely issued. Chemical castration uses medications that block testosterone production to decrease sex drive. Surgical castration is a much more invasive procedure....

Currently, there are 2,224 people imprisoned in Louisiana for sex crimes against children younger than 13. If the bill becomes law, it can only be applied to those who have convicted a crime that occurred on or after Aug. 1 of this year....

If an offender “fails to appear or refuses to undergo” surgical castration after a judge orders the procedure, they could be hit with “failure to comply” charge and face an additional three to five years in prison, based on the bill’s language. The legislation also stipulates that a medical expert must “determine whether that offender is an appropriate candidate” for the procedure before it’s carried out.

Louisiana’s current chemical castration law has been in place since 2008 but officials said from 2010 to 2019, they could only find one or two cases where it was used.

June 5, 2024 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences | Permalink | Comments (4)

"Murder Is Still Down A Lot As Summer Approaches"

The title of this post is the title of Jeff Asher's latest substack entry, in which he provides a detailed accounting of the latest homicide data that he helps track so effectively through this AH Datalytics' murder data page.   I recommend the lengthy substack posting in full, and here are snippets from the start and end:

[M]ultiple measures are pointing at a large decline in murder and gun violence occurring nationally in 2024. It’s late enough in the year now to believe such an outcome is likely to happen based on historical trends (though appreciating that an anomalous event could change things).

Murder is down around 18 to 19 percent (it’s -18.5 percent as I write on May 30) in more than 260 cities with available YTD data for 2024 compared to the same timeframe in 2023. Murder was down 20.5 percent in the sample of over 175 cities back then and it’s down 19.1 percent using those exact same cities now, so the level of decline has come down but just a bit in the last two months.

All of which means that murder is down a lot in 2024 relative to 2023.  It’s still too early to say just how much murder will decline in 2024, but it’s late enough in the year with a large enough sample to say that murder will likely fall considerably and perhaps historically so this year after a large decline in 2023.

It’s too early to say with much confidence what the change in murder will be in 2024 for any given city (your city might be -10 percent now but see an increase by the end of the year), but a sample of this size is fairly good at predicting the direction and scope of a crime change nationally even at this point of the year.  That said, of course something could happen to change the national trend, it would just be outside of the historical norm....

A preponderance of evidence points to a strong decline in gun violence and murder in the United States in 2024.  This assessment will soon be supplemented by the FBI’s quarterly data covering January through March so it is not solely reliant on the FBI’s data.  Rather than wondering whether murder will go up or down in 2024 (or if it's a NIBRS thing), the real analytic issues for the rest of the year are measuring the degree of the decline and seeing whether it can sustain at this level or begins to level off as the year marches on.

June 5, 2024 in National and State Crime Data | Permalink | Comments (9)

June 4, 2024

Rounding up some early commentary on the coming sentencing of Donald Trump

I have already seen an number of notable commentaries on the upcoming sentencing of Donald Trump, and I figured it worthwhile to round some of them up here:

From MSNBC authored by Frank Bowman, "The case for imprisoning Donald Trump: Trump’s status renders his offense far more serious and his behavior during the case indefensible, thus making a prison sentence more plausible."

From National Review authored by Jeffrey Blehar, "Is Judge Merchan Crazy Enough to Give Trump Jail Time?"

From the New York Times authored by Norman Eisen and Nancy Gertner, "Should Trump Be Sentenced to Prison? Two Opposing Views."

From the Washington Post authored by Ruth Marcus, "Will Trump do time in jail? Here’s how Justice Merchan should rule."

From the Washington Post authored by Jennifer Rubin, "The best argument to lock up Trump: Merchan must protect the judiciary"

Prior recent related posts:

June 4, 2024 in Celebrity sentencings, Procedure and Proof at Sentencing | Permalink | Comments (17)

"'Cruel and Unusual' in 1689, 1791, and 1868: Shifts in Incorporation"

The title of this post is the title of this notable article that I just came across on SSRN authored by Gregory Velloze.  Here is its abstract:

Recently, the Supreme Court has acknowledged the scholarly debate over whether to apply the historical understanding of the Bill of Rights as ratified in 1791 or as incorporated through the Fourteenth Amendment in 1868.  This acknowledgment raises two important issues with regards to the Cruel and Unusual Punishments Clause.  First, the Cruel and Unusual Punishments Clause was copied from the English Bill of Rights in 1689, generating a third, additional time period relevant to its historical understanding.  Second, the more textualist framework of the Cruel and Unusual Punishments Clause allows for more relatively bounded language and interpretation, which could remain unchanged through each time period.  And if the Eighth Amendment’s textual principles could remain intact, even while its expected applications changed over time, each incorporation would represent a shift in construction rather than in a shift in interpretation.  As such, the Cruel and Unusual Punishments Clause maintains its longstanding function of prohibiting punishments that are unjustifiably more severe (cruel) and contrary to the ordinary standards of law (unusual) despite changing expected applications against extralegal courts, federal overreach, and discrimination. 

June 4, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Another notable press release from Senator Kennedy about US Sentencing Commission decision-making

In this post from April, I highlighted a notable press release from Senator John Kennedy concerning a bill he introduced, titled the  "Consensus in Sentencing Act," which would require amendments to the US Sentencing Guidelines to receive five votes from the Commission’s seven voting members.  I mentioned at the time that I doubted this bill would get enacted anytime soon, if ever, but that the bill's very introduction highlighted that recent actions of the Commission are garnering notable attention.

Against that backdop, this new press release from Senator John Kennedy declares in its title "Kennedy confirms that Sentencing Commission will return to bipartisan agreement for changes to Sentencing Guidelines." Here is the main text:

Sen. John Kennedy (R-La.), a member of the Senate Judiciary Committee, met with Judge John Gleeson, a member of the U.S. Sentencing Commission, to discuss the unprecedented recent breakdown in bipartisan decision-making at the Commission.

In the meeting, Kennedy shared his concerns about the partisan path that the Commission has taken in recent years.  In a sharp break from its traditional bipartisan practices, the Commission has forced through several major policy changes to federal sentencing rules on a party-line basis.

Gleeson acknowledged the concerns raised about the Commission’s recent practices and confirmed that the Commission will return to making changes on a bipartisan basis.

“We’re talking about public safety and the rule of law here, and I’m very, very glad to hear that the Commission is returning to its history of making changes only when there’s bipartisan agreement. I look forward to seeing the fruits of this commitment,” said Kennedy.

I believe that US Sentencing Commissioner Gleeson is awaiting reconfirmation by the US Senate to serve another term on the USSC.  So I suppose it is not too unusual for Commissioner Gleeson to be meeting with Senator Kennedy, but I am unsure how a single commissioner (who is not the Chair) can fully predict the future actions of the full Commission.  But, for anyone following the (sentencing-nerd) drama of US Sentencing Commission decision-making, this latest press release reflects another interesting chapter in the story.

June 4, 2024 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

"Can State Supreme Courts Preserve — or Expand — Rights?"

The title of this post is the title of this very lengthy new New Yorker piece by Eyal Press.  The subtitle highlights its themes: "With a lopsided conservative majority on the U.S. Supreme Court, progressive activists are seeking legal opportunities in state constitutions."  Though covering lots of legal areas, the article discusses Eighth Amendment issues at various points.  Here is one excerpt of a piece worth reading in full:  

Between sessions at the N.Y.U. symposium [on state constitutional law], I went to a café to meet Kyle Barry, an advocate who hopes that a similar pattern might play out in the movement for criminal-justice reform.  Barry came to the conference from San Francisco, where he directs the State Law Research Initiative, a nonprofit organization whose mission is to limit extreme sentences and address inhumane prison conditions by strengthening state-constitutional rights.  Criminal-justice scholars have traditionally framed mass incarceration as a national phenomenon driven by such harsh federal legislation as the 1994 crime bill.  But, as the authors of a recent Iowa Law Review article note, “ninety percent of people confined in U.S. prisons are confined under state laws.”  Given this, the authors ask why state courts have been “missing from the debate” about how to curb excessive punishment regimes.

Barry’s organization hopes to address this gap.  He told me that state litigation was especially urgent because the Supreme Court has “completely abdicated” enforcing constitutional rights in the criminal-justice system, rubber-stamping extreme sentences that many other countries prohibit.  In most of Europe, he noted, the sentence of life without parole is unheard of.  In 2022, Canada’s Supreme Court ruled unanimously that such sentences were cruel and unconstitutional for offenders of any age.  In the U.S., as of 2020, sixty thousand people were serving what Barry calls “death in prison” sentences — more than in the rest of the world combined.  Although the Miller ruling forbade mandatory impositions of life without parole for juveniles, it didn’t ban them altogether.  And a more recent Supreme Court opinion, Jones v. Mississippi, written by Justice Brett Kavanaugh, relieved judges of having to establish that a juvenile is “permanently incorrigible” before issuing such a sentence.

In a scathing op-ed in the Washington Post, the legal scholar John Pfaff argued that the Jones ruling demonstrated that America was willing “to throw lives away.”  Yet Barry told me that he felt optimistic about the possibilities for state reform, naming Michigan, in addition to Washington, as a place where a high court had recently extended Miller to young adults.  Lauren McLane, the law professor fighting to reduce the sentence of Christopher Hicks, joined us at the café, dressed in a gray University of Wyoming sweatshirt. McLane and Barry had first communicated a few weeks earlier, after she’d read comments that he’d made on a Listserv about Commonwealth v. Mattis, a case in which the Supreme Judicial Court of Massachusetts banned life without parole for “emerging adults” — defined as anyone between eighteen and twenty-one.  The ruling, which was made in January, cited the ban on “cruel or unusual punishment” in the Massachusetts constitution, and also the principle that Eighth Amendment jurisprudence should be informed by “the evolving standards of decency that mark the progress of a maturing society” — a standard that the U.S. Supreme Court itself has endorsed.

June 4, 2024 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (21)

June 3, 2024

Notable new accounting of parole practices in South Carolina

In this post a couple of weeks ago, I flagged this Bolts article about parole practices in Virginia.  That detailed piece detailed bow parole grants have declined considerably in the Old Dominion State.  Now Bolts has a new piece focused on parole practices in the Palmetto State titled "Parole Plunges in South Carolina as Governor-Appointed Board Issues Denial After Denial."  I also recommend this piece in full, and here is how it gets started:

After appearing before the South Carolina Board of Paroles and Pardons more than 500 times in the past 35 years, lawyer Douglas Jennings announced last year that he had participated in his final hearing.  It had become routine for the board to reject his clients, regardless of how much he showed that they’d changed since their crime.  “I just couldn’t justify taking somebody’s money as a fee to appear before the parole board when I didn’t feel good about being able to produce the right results for them,” he told Bolts.

The panel, which Jennings has nicknamed “the rejection board”, has made it increasingly difficult for prisoners to win parole in South Carolina. In 2018, it released roughly four out every 10 people who applied.  The odds of release have declined since then: By 2022, the board only approved one out of every 10 petitions.  Last year, the board’s grant rate was seven percent.  This downward trend has continued into 2024. In the first four months of this year, the board approved only 5 percent of more than 900 parole applications, according to data provided by the board.

Declining parole rates in South Carolina are part of a national trend.  Parole, which permits early release for eligible prisoners who exhibit good behavior and have a low risk of committing another crime, has fallen across the country in recent years as parole boards have succumbed to political pressure and media narratives that stoke fears about crime. Between 2019 and 2022, grant rates plummeted in 18 out of 27 states surveyed by the the Prison Policy Initiative, a criminal justice reform research organization.  Often, this decline has directly stemmed from state officials’ desire to crack down on release, and to the professional and ideological backgrounds of the people they appoint to parole boards, as Bolts has reported recently about the parole boards in Alabama and Virginia.

June 3, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Supreme Court grants cert on yet another "crime of violence" case

Over at SCOTUSblog here, John Elwood in one of his indispensble "Relist Watch" posts jokingly described the Supreme Court's jurisprudence around violent predict offenses under federal law as an "apparent effort to create perpetual full employment for federal sentencing lawyers."  That effort got yet another boost this morning from this new SCOTUS order list granting cert in Delligatti v. United States, No. 23-825, which presents this question (drawn from this cert petition):

Under 18 U.S.C. §  924(c)(3)(A), a felony qualifies as a “crime of violence” if it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Courts have disagreed about how to apply use-of-force language to crimes that require proof of a victim’s bodily injury or death but can be committed by failing to take action.

In the decision below, the Second Circuit held that any crime requiring proof of death or bodily injury categorically involves the use of physical force, even if it can be committed through inaction—such as by failing to provide medicine to someone who is sick or by failing to feed a child....

The question presented is: Whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.

Though I would actually prefer SCOTUS to be talking up a lot more non-"crime of violence" sentencing cases, I get a strange kick out of the fact that the predicate crime definition issue here could engage generations of philosophers who have debated the moral distinctions between consequences resulting from action and inaction.  Though I doubt the famous trolley problem developed by Philippa Foot and Judith Jarvis Thomson will be central to any amicus briefs in Delligatti, the issue in this case is a reminder that even mind-numbing technicalities in criminal statutes necessarily raises an array of deep philosophical questions about law and life.

Editor's note: upon first blogging, I wrongly assumed Delligatti was an ACCA case, but it is not.  I think I have now properly corrected this post and I thank the commentor for kindly bringing my mistake to may attention.  (And, importantly, ACCA jurisprudence will alos be impacted by the eventual ruling in Delligatti.)

June 3, 2024 in Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (17)

June 2, 2024

Yet another account of yet more challenges implementing the First Step Act

This NBC News piece, headlined "Despite First Step Act, some federal inmates remain in prison extra months," provides another window into another set of challenges in implementing some of the release provision of the First Step Act.  Here are excerpts:

The Trump-era First Step Act has allowed thousands of nonviolent federal offenders to leave prison sooner, but advocates say they have reviewed numerous instances of inmates remaining behind bars longer than they should be — raising questions about ongoing implementation failures....

Walter Pavlo, president of the consulting firm Prisonology LLC, whose experts include former federal Bureau of Prisons case managers, wardens and sentence computation professionals, said he regularly sees cases of inmates who have remained in prison past the dates they should have been moved, with an underlying issue appearing to be a lack of capacity at halfway houses.

Across the country, the BOP says it contracts with about 160 halfway house locations offering more than 10,000 beds, although it’s unclear how often they are at maximum capacity and whether they can offer additional space. More than 8,200 inmates are in halfway houses, the agency says.

In response to whether the BOP tracks how many inmates may be incarcerated longer because of delays in transferring them, the agency said Thursday that such information is not collected.  “Every effort is made to review and adjust available resources within the community so individuals may utilize” time credits, the BOP said.  The agency added that it “makes every effort to place individuals who qualify for release under the First Step Act,” but that “some areas, specifically populated urban areas, are experiencing capacity concerns.”...

As the law has been implemented over the years, concerns have grown about whether time credits are being properly added up and applied as case managers log the information.  In 2022, as the BOP fine-tuned the time credits program, a new computer app was launched to automatically calculate those credits, although it initially suffered a technical glitch.  The BOP said Thursday that “credits are being calculated as required under the First Step Act.”

Pavlo said the issue now has moved beyond the calculation of the time credits to the agency’s responsibility to secure inmates a place outside of prison or in home confinement as part of their prerelease custody.

A few of many prior related posts:

June 2, 2024 in FIRST STEP Act and its implementation, Prisons and prisoners | Permalink | Comments (0)