Sentencing Law and Policy

Recent active discussions regarding Ohio's dormant death penalty

I have long viewed Ohio as a fascinating death penalty state, though that view is surely influenced by the fact I teach and write about capital punishment here in the Buckeye State.  Especially for a state outside the deep south, Ohio has long had a active death system: Ohio juries have imposed a relatively large number of death sentences and Ohio was behind only a few states in the total number of executions for the first dozen of so years starting the 21st century.  

But lots of litigation over execution methods and a range of other factors have contrubuted to a significant reduction in recent years in the (a) the size of Ohio's death row, (b) the number of new death sentences, and (c) completed executions in Ohio.  Of particular note, there has not been an execution in Ohio since summer 2018, and it certainly seems that current Ohio Governor Mike DeWine is  disinclined to preside over any executions while he is in office (which will be through 2026).  But the dormant capital punishment reality has not precluded active capital punishment discussions, as highlights by these recent stories:

From DPIC, "Ohio Legislative Black Caucus Identifies Death Penalty as a Legislative Priority Due to Legacy of Racial Violence and Bias"

From Fox News, "Ohio sheriff fed up with crime stemming from border crisis calls for death penalty renewal"

From Ohio Capital Journal, "Backers believe nitrogen hypoxia can jumpstart Ohio’s stalled capital punishment system""

From Spectrum News, "Gov. DeWine delays 3 more executions"

From WCMH, "Move to abolish Ohio’s death penalty renewed"

From WKRC, "Ohio considers 2 new death penalty bills that would either end executions or restart them"

Part 2 of "Drugs on the Docket" podcast on fake stash-house stings now available

In this post from last week, I highlighted that the Drug Enforcement and Policy Center at The Ohio State University had just started releasing episodes from Season Two of the "Drugs on the Docket" podcast.  (All of the first season's episodes are all still available via Apple Podcasts and YouTube.)  As noted in the prior pose, this first episode to kick-off Seanson Two was actually part of a extended discussion that was so chock full of content that it became a two-part series.  And, as detailed on this podcast webpage, today brings the release of the second episode of this new season. which is described this way:

Season 2 Episode 2 – Compassionate release for stash house sting clients with Alison Siegler and Erica Zunkel (Part 2 of 2)

Host Hannah Miller and co-host Douglas Berman, executive director of the Drug Enforcement and Policy Center, continue their conversation with Alison Siegler and Erica Zunkel.  Part 2 covers how the University of Chicago Law School’s Federal Criminal Justice Clinic pushed the boundaries of criminal defense and leveraged the First Step Act to secure compassionate release for stash house sting defendants who were not part of the clinic’s “criminal class action” litigation.

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.

As I mentioend before, the many remarkable legal and policy stories that surround the fake stash-house stings continue to amaze me.   I remain extremely grateful to have been part of efforts to capture a small parts of amazing stories via these podcasts.  I once again encourage everyone to have a listen.

Prior recent related post:

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

US Sentencing Commission releases big report on "Methamphetamine Trafficking Offenses in the Federal Criminal Justice System"

Via email, I received news of this big new report from the US Sentencing Commission titled "Methamphetamine Trafficking Offenses in the Federal Criminal Justice System."  This 66-page report provides lots of important facts and figure about the drug offense that is now the basis for the most and most severe federal drug sentences in recent years.  This USSC webpage has an overview and key findings from the report and this USSC news release provide a helpful summary:

A new U.S. Sentencing Commission study found substantial increases in both the prevalence of federal methamphetamine trafficking sentences, and the purity levels of methamphetamine trafficked in the United States.

Over the past 20 years, the number of individuals sentenced federally for methamphetamine trafficking has risen by 168 percent, with methamphetamine now accounting for nearly half (49%) of all federal drug trafficking cases.

The study also revealed that the methamphetamine tested in fiscal year 2022 was on average over 90% pure with a median purity of 98%.  Furthermore, the methamphetamine tested was uniformly highly pure regardless of whether it was sentenced as methamphetamine mixture (91% pure on average), methamphetamine actual (93%) or Ice (98%).  By comparison, in 2000, the Drug Enforcement Administration reported that methamphetamine purity ranged from 10% to 80% depending on location.

Methamphetamine is one of only five controlled substances where purity affects federal statutory and guideline penalties, resulting in higher penalties when purity levels are confirmed by laboratory testing.  By federal statute, it takes ten times as much mixture compared to actual methamphetamine to trigger mandatory minimum penalties.

Because methamphetamine penalties are based in part on purity, penalty exposure and sentencing outcomes are impacted by confirmed purity levels.  The Commission’s study found that testing practices varied across the nation and that testing rates across judicial circuits were inconsistent — ranging from under 60% to over 80% of the time.  Notably, methamphetamine seized in southwest border districts was more likely to undergo laboratory testing (85%) than in non-border districts (70%).

Methamphetamine trafficking sentences averaged 91 months in fiscal year 2022, the longest among the major federal drug trafficking offenses, including fentanyl (65 months) and heroin (66 months). In addition, methamphetamine trafficking offenses carried mandatory minimum penalties more often (74%) than all other drug trafficking offenses (57%).

The Sentencing Project releases report titled "Incarceration and Crime: A Weak Relationship"

The Sentencing Project this morning released this new 18-page research brief titled “Incarceration & Crime: A Weak Relationship.” The report assembles a variety of data and research in keeping with the report's thesis that there is only a weak relationship between incarceration and crime.  Here are a couple of passages from the body of the report:

Scholars examining state imprisonment trends during the period of extreme growth conclude that incarceration contributed only modestly to the crime drop.  They find that in the 1990s mass incarceration accounted for as much as 35% or as little as 6% of the crime drop.  These estimates depend on the type of crime under investigation as well as the methodology and assumptions used by analysts.  Since the turn of the century, mass incarceration appears to have made almost no contribution to the crime drop.  Reviewing the four-decade period when incarceration levels increased without any consistent relationship with crime rates, the National Research Council has concluded that “the increase in incarceration may have caused a decrease in crime, but the magnitude of the reduction is highly uncertain and the results of most studies suggest it was unlikely to have been large.”...

As some lawmakers pivot to widen the reach of the criminal legal system in response to public concern, recent state trends illustrate that less imprisonment often happens alongside improvements to community safety.  Over a nine year period (2013-2022), 46 states reduced the footprint of their prison population while experiencing crime declines.  In some states, these declines were substantial.

Notable Washington Post "Abused by the badge" investigation includes notable data on sentencing outcomes

The Washington Post today released a series of remarkable pieces as part of an investigative series it calls "Abused by the badge."  The subheadline of this main piece summarizes the main themes: "A Washington Post investigation found hundreds of law enforcement officers in the United States have sexually exploited kids. Many avoid prison time."  Here are additional links to the newest pieces in the series:

• "An officer sexually abused a teen in his police car. How will he be punished?"
• "How The Post investigated police officers accused of sexually abusing kids"
• "Read the responses from convicted police officers and their agencies"

This Reason piece about the Post's findings helpfully summarizes some of the key sentencing stories:

The investigation revealed a staggering lack of accountability for officers who sexually abuse minors — finding not only that convicted officers often received paltry sentences, but that police departments sometimes rehired officers with child sex abuse convictions.

The Post's analysis looked at thousands of court filings, as well as The Henry A. Wallace Police Crime Database, the county's most comprehensive database of police arrests.  The authors found that, between 2005 and 2022, around 17,700 police officers were charged with crimes — and 1 in 10 of those were charged with a crime involving the sexual abuse of minors.

The crimes officers were charged with varied, though most charges were for a few specific offenses. According to the Post's analysis, 39 percent of officers charged with child sexual abuse crimes were charged with rape.  Twenty percent were charged with crimes related to child sexual abuse material (another term for child pornography) and 19 percent were charged with forcible fondling.

Eighty-three percent of charged officers were convicted.  However, only 61 percent of convicted officers received prison time.  Fifteen percent received local jail sentences, and a striking 24 percent received sentences as light as probation, fines, and community service.  But even those imprisoned received relatively light sentences. Half were sentenced to less than five years in jail.

Why did so many officers seem to get off easy for heinous sex crimes?  According to the Post, it comes down to how prosecutors and judges treat police officers. "Prosecutors have broad discretion in the types of charges they bring, the plea bargains they offer and the cases they are willing to take to trial," the Post's analysis reads. "Judges play a critical role at sentencing hearings in determining what punishment officers deserve."

Because there is no national data about sentencing outcomes in cases involving other types of persons sexually abusing minors, it is impossible to compare the outcomes detailed by the Post for officers to other sets of offenders.  But the Post's suggestion that these officer offenders are being treated relatively leniently seems sound.  And many might reasonably argue that secual abuse of a minor committed my an officer ought to lead to even harsher punishment than would be given to other offenders, especially if the officer used his position to facilitate the crime.

"The White House isn’t ruling out a potential commutation for Hunter Biden after his conviction"

The title of this post is the headline of this notable new AP article.  Here is how it begins: 

The White House is not ruling out a potential commutation for Hunter Biden, the president’s son who was convicted on three federal gun crimes and is set to be sentenced by a judge in the coming months.  “As we all know, the sentencing hasn’t even been scheduled yet,” White House press secretary Karine Jean-Pierre told reporters Wednesday on Air Force One as President Joe Biden traveled to the Group of Seven summit in Italy.

She said she has not spoken to the president about the issue since the verdict was delivered Tuesday. Biden definitively ruled out pardoning his son during an ABC News interview last week. “He was very clear, very upfront, obviously very definitive,” Jean-Pierre said of the president’s remarks about a potential pardon.  But on a commutation, “I just don’t have anything beyond that.”

A pardon is an expression of forgiveness of a criminal offense that restores some rights, such as voting, that a person loses upon conviction. Meanwhile, a commutation reduces a sentence but leaves the conviction intact.

The position from the White House is a shift from what it said in September, when Jean-Pierre was asked whether the president would “pardon or commute his son if he’s convicted.” The press secretary responded at the time that “I’ve answered this question before. It was asked of me not too long ago, a couple of weeks ago. And I was very clear, and I said no.”

Update on June 13:  This AP article reports on comments made by President Biden on this topic.  It startes this way: "President Joe Biden said Thursday that he will not use his presidential powers to lessen the eventual sentence that his son Hunter will receive for his federal felony conviction on gun crimes."

Rounding up some early accounts of how Hunter Biden will be sentenced

I have already seen a handful of commentaries mapping out the dynamics of the federal sentencing of Hunter Biden following his conviction on three felonies.  This New York Times piece, headlined "Will Hunter Biden Go to Jail? Here’s What His Sentence Could Look Like," provides these useful particulars:

According to the most recent manual published by the United States Sentencing Commission, which sets recommended sentencing guidelines, someone in Mr. Biden’s position would typically face 15 to 21 months’ imprisonment for offenses related to the unlawful receipt, possession, or transportation of firearms.

From 2019 to 2023, just 52 defendants were sentenced in a similar category as Mr. Biden, and 92 percent were sentenced to serve prison time with a median prison term of 15 months, according to the commission’s data. Around 8 percent of people in that category received probation or a fine.

But judges frequently depart from the suggested guidelines when handing down a sentence and may reduce the time spent in prison in light of the particular circumstances unique to each case.

And here are a few other press pieces discussing some sentencing issues at some length:

From CBS News, "Is Hunter Biden going to prison? What to know about the possible sentence after his conviction"

From PBS News Hour, "What federal guidelines suggest for Hunter Biden’s sentencing"

From the New York Post, "Hunter Biden judge once gave stiff sentence in similar gun case"

From USA Today, "What's next for Hunter Biden? Sentencing, likely appeal and looming trial on tax charges"

Missouri completes execution of double murderer who proclaimed his innocence

As detaile in this AP article, a "man convicted of killing his former lover and her husband in what prosecutors described as a fit of rage was executed Tuesday evening in Missouri."  Here is more:

David Hosier, 69, was pronounced dead at 6:11 p.m. following a single-dose injection of the sedative pentobarbital at the state prison in Bonne Terre. Hosier was convicted of the 2009 killings of Angela and Rodney Gilpin in the state capital of Jefferson City.

Hosier turned his head a couple of times and breathed hard twice as the drug was administered. All movement stopped within seconds, even as his spiritual adviser seated next to him, the Rev. Jeff Hood, continued to pray.

Investigators said Hosier had a romantic relationship with Angela Gilpin and was angry with her for breaking it off and reconciling with her husband.  Hosier maintained until the end that he was innocent and shouldn’t have been convicted on circumstantial evidence.

The way was cleared Monday when Gov. Mike Parson declined to grant clemency, citing Hosier’s “lack of remorse.” Parson, a Republican and former county sheriff, has overseen 10 executions since taking office in 2018. Hosier’s lawyers said no court appeals were pending in the hours before the scheduled execution....

In previous interviews with The Associated Press, Hosier acknowledged having an affair with Angela Gilpin that she ended before getting back with her husband.  In September 2009, the two were fatally shot near the doorway to their apartment....

Hosier was the seventh person executed in the U.S. this year and the second in Missouri.  Brian Dorsey was executed in April for killing his cousin and her husband in 2006.  Missouri is scheduled to execute another man, Marcellus Williams, on Sept. 24, even though Williams is still awaiting a hearing on his claim of innocence in the 1998 stabbing death of Lisha Gayle.

BJS releases small accounting with "Preliminary Data Release - Jails (2023)"

THe Bureau of Justice Statistics sent me a couple emails today making sure I saw it published online here its latest data on jail populations in the US.  Here is the text that starts the report:

The Bureau of Justice Statistics provides key jail statistics prior to release of the annual jails report.  The statistics below include the number of persons held in local jails, by inmate demographics and conviction status; the number of admissions to jail; and jail incarceration rates, from 2013 to 2023.

Statistics from 2023, the latest data year, are preliminary and may be updated once BJS publishes the final data in Jail Inmates in 2023 – Statistical Tables, which is scheduled for release in late 2024.  

Key findings

• At midyear 2023, local jails held 664,200 persons in custody, similar to the year before (663,100).
• Jails reported 7.6 million admissions from July 1, 2022 to June 30, 2023.  While this represents a 4% increase over the 7.3 million admissions the year before, annual admissions were 35% lower than 10 years ago (11.7 million).
• Local jails held 95,100 females at midyear 2023, accounting for 14% of the confined population.
• At midyear 2023, 70% of the jail population (467,600) was unconvicted and awaiting court action on a current charge or being held in jail for other reasons.  The remaining 30% (196,600) was convicted and either serving a sentence or awaiting sentencing on a conviction.

Notable new Second Circuit opinion limits grounds for granting 3582(c)(1)(A) sentence reduction

A helpful reader made sure I did not miss a notable new opinion today from a Second Circuit panel reversing a notable sentence reduction under 18 U.S.C. § 3582(c)(1)(A).  The 28-page ruling in US v. Fernandez, No. 22-3122 (2d Cir. June 11, 2024) (available here), gets started this way:

This appeal raises questions as to which claims and arguments a district court is permitted to consider as “extraordinary and compelling reasons” in support of a motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A), commonly known as a motion for “compassionate release.” Defendant-Appellee Joe Fernandez, then imprisoned in a federal penitentiary, filed this compassionate-release motion seeking a reduction of the mandatory life sentence he was serving for his conviction of murder for hire, in violation of 18 U.S.C. § 1958.

Patrick Darge had hired Fernandez as a “backup shooter” in a scheme to murder two Mexican drug cartel members who had come to New York City to collect payment for more than 270 kilograms of cocaine the cartel had sold to local drug trafficker Jeffrey Minaya.  While Darge (and several other codefendants implicated in the scheme) pleaded guilty to various narcotics, firearms, and murder charges and cooperated with the government, Fernandez went to trial and was convicted.

In 2021, Fernandez filed the instant motion for compassionate release in the district court arguing, in relevant part, that two “extraordinary and compelling reasons” warranted his release: (1) his potential innocence in light of the questionable credibility of Darge, the government’s key witness at trial, and (2) the significantly lower sentences imposed on Fernandez’s co-defendants.  The United States District Court for the Southern District of New York (Alvin K. Hellerstein, Judge) granted the motion on these grounds, reduced Fernandez’s sentence to time served, and ordered his release.

The government appealed, arguing that the district court abused its discretion because potential innocence is never a permissible “extraordinary and compelling reason[]” for a sentence reduction within the meaning of 18 U.S.C. § 3582(c)(1)(A), and that Fernandez’s sentencing disparity is not an “extraordinary and compelling reason[]” for a sentence reduction on the facts of this case.  We agree with the government that a compassionate release motion is not the proper vehicle for litigating the issues Fernandez has raised, irrespective of whether his mandatory life sentence is unjust. We therefore reverse the judgment of the district court.

The discussion of sentencing disparity as a legal basis for possible sentence reduction is quite nuanced, and it includes a lengthy footnote starting with this sentence: "We cannot foreclose the possibility that significant sentencing disparities, even between a defendant who went to trial and a co-defendant who pleaded guilty and cooperated, might, in some unusual circumstances, warrant a finding of 'extraordinary and compelling' reasons to grant a sentence reduction."   In addition, the innocence discussion is also dynamic.  But, nuances aside, this ruling would seem to greatly hinder claims of actual innocence or general co-defendant sentencing dispartity as a basis for seeking a sentece reduction.

What facts should matter (and not matter) most at federal sentencing after Hunter Biden is convicted by jury on three felony counts?

These are heady times for historic sentencing proceedings.  As New York state actors are working through the process of preparing for former President Donad Trump's state sentencing after his conviction last month on 34 state felony counts following a lengthy trial, we know now that federal actors need to start working through the process of preparing for current President Joe Biden's son, Hunter, to be federally sentenced after his conviction today on three federal felony counts following a short trial.  Here are the basics via the New York Times' latest live update:

A jury in Wilmington, Del., on Tuesday found Hunter Biden, President Biden’s long-troubled son, guilty of three felony counts of lying on a federal firearms application in 2018, a grievous personal blow to the Biden family as his father enters the final months of a brutal re-election campaign.  He could face up to 25 years in prison, but first-time offenders who did not use their weapons to commit a violent crime typically receive no jail time....

Here’s what else to know:

A sentencing date was not set: The judge in the case, Maryellen Noreika, did not set a date for sentencing, but said it would typically be about 120 days after the verdict — that’s early October, or about a month before the election. Although the maximum possible sentence Mr. Biden faces is more than two decades behind bars and $750,000 in fines, federal sentencing guidelines call for a fraction of that penalty.

No pardons are coming: President Biden has said he will not pardon his son.  The president kept his distance from the trial and was out of office on Oct. 12, 2018, when Hunter Biden asserted he was drug-free on a background check at a time when he was addicted to crack cocaine.

His legal troubles are not over: The Delaware case, brought by the special counsel David C. Weiss, is widely regarded as the least serious of the two federal indictments against Hunter Biden brought last year.  He still faces serious tax charges in Los Angeles stemming from his failure to pay the government during a yearslong crack, alcohol and spending binge; the trial is scheduled to start in September.

I have not yet sought to work through the likely (advisory) guideline calculations for Hunter Biden, but I have already seen reports that the estimated guideline range would be for over a year of federal prison time.  Even after the Supreme Court made the guidelines advisory, federal judges are duty bound to still consider them at sentencing along with the other sentencing factors detailed by Congress in 18 USC § 3553(a).

But, of course, many of the instructions in 3553(a) are quite vague -- eg, judges must consider the "nature and circumstances of the offense and the history and characteristics of the defendant."  That vague phrase and others in federal sentencing law prompt the question in the title of this post.  Should Judge Noreika give particular weight to, or make a focused effort to limit her consideration of, Hunter Biden's struggles with addiction at the time of his offenses?  His indictments on various other alleged crimes and other alleged misbehaviors?  The wide range of unique consequences associated with being the son of a president?

Flagging challenge to Arizona's suspect application of Miller juve LWOP limis

Adam Liptak has this new piece at the New York Times detailing a pending Supreme Court challenge to how Arizona had dealt with Miller's Eighth Amendment limit on juve LWOP sentences. Here is the piece's full headline: "In Arizona, Life Sentences for Juveniles Test Supreme Court Precedents: The justices will soon decide whether to hear a case that could affect more than two dozen youths sentenced to die in prison." Here is an excerpt:

The new case involves Lonnie Bassett, who was convicted of two murders committed when he was 16. When he was sentenced in 2006, Arizona law did not give the judge the option of sentencing him to anything but life in prison without the possibility of parole.

In a unanimous opinion last year, the Arizona Supreme Court did not dispute that. But it said an idiosyncratic feature of the state law, allowing judges to choose between “natural life” without the possibility of release in any fashion and life without parole but with the theoretical possibility of clemency from the governor, rendered it constitutional.

Rejecting the usual understanding of the governing precedent, the court said, “Miller and its progeny do not specifically require the availability of parole when sentencing a juvenile offender.”

Lawyers for Mr. Bassett asked the U.S. Supreme Court to intervene, saying that his case could determine the fates of more than two dozen other juvenile offenders. The case, they wrote, “presents exceptionally significant questions about gamesmanship and the supremacy of federal law.”

FBI reports remarkable crime drop to begin 2024

This official FBI press release reports on the basics of today's release here of the FBI's Quarterly Uniform Crime Report (Q1). Here is the great news:

The Quarterly Uniform Crime Report (Q1), January-March, 2024, provides a preliminary look at crime trends for January through March 2024 compared to January through March 2023.  A comparison of data from agencies that voluntarily submitted at least two or more common months of data for January through March 2023 and 2024 indicates reported violent crime decreased by 15.2 percent.  Murder decreased by 26.4 percent, rape decreased by 25.7 percent, robbery decreased by 17.8 percent, and aggravated assault decreased by 12.5 percent.  Reported property crime also decreased by 15.1 percent.

Jeff Asher in this substack post at Jeff-alytics provides this important context:

The FBI released data for the first quarter of 2024 today reporting a massive decline in crime across the board in the first quarter of 2024 compared to the first quarter of 2023.  The data release only covers three months of data and around 77 percent of the nation’s population, and it is extremely preliminary with agencies having months to report new incidents and correct problems.  In other words, crime almost certainly declined nationally in the first three months of 2024 compared to the first three months of 2023, but the FBI’s data is almost certainly overstating that decline.,,,

Overall, my impression is that the trend direction shown in the FBI data through the first quarter is likely correct but that the overall percent changes are almost certainly overstated by a good bit. Violent and property crime are probably not down 15 percent nationally (which would be far and away the largest one year decline ever recorded in both categories), but they are likely down a healthy amount.  Murder is down a ton, probably historically so at this point in the year, but probably not 25 percent nationally.

As SCOTUS heads into homestrech, any prediction for any criminal justice "sleeper" opinions?

A relatively boring new order list from the Supreme Court this morning has lead my mind to wandering and wondering about what rulings the Justices will issue this Thursday and in the weeks to come.   The Justices still have nearly 30 cases to resolve, which means an average of nearly ten per week over the next three weeks if they hope to wrap up the Term by the end of June.  I would guess we should expect, maybe, five rulings this week, then closer to ten next week and then a final big closing batch the last week of June.  But that's a lot to get done in a short period, and maybe the Justices will need a few days into July to wrap it all up.

Whatever the particulars of the fin-de-terme pacing by SCOTUS, we know a whole bunch of major rulings are coming soon on criminal and non-criminal issues.  "Major" non-criminal rulings are coming on topics ranging from abortion to federal agency powers to social media moderation to federal tax authority.  "Major" criminal rulings are coming in topics ranging from presidential criminal immunity to key Jan 6 charges to Second Amendment and Eighth Amendment limits on criminal statutes.  And, of course, there are a number of "minor" cases still pending, and I wanted to flag a few that, depending on how the Justices rule, could certainly turn into "major" cases. 

As the title of this post reveals, I think of "minor" cases that turn into "major" cases as "sleepers," and I would categorize one of my favorite sentencing cases, Blakely v. Washington, as a sleeper.  (The Blakely precursor, Apprendi v, New Jersey, likely ought also be considered a sleeper, but the follow-up of US v. Booker certainly was not flying below the radar before it was decided.)  And perhaps the Sixth Amendment is a sleeper amendment, as the two cases on my current sleeper list are Sixth Amendment matters (with thanks to SCOTUSblog for links/descrptions):

Smith v. Arizona, No. 22-899 [Arg: 1.10.2024]

Issue(s): Whether the confrontation clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a nontestifying forensic analyst, on the grounds that (a) the testifying expert offers some independent opinion and the analyst’s statements are offered not for their truth but to explain the expert’s opinion, and (b) the defendant did not independently seek to subpoena the analyst.

 

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

Issue(s): Whether the Constitution requires a jury trial and proof beyond a reasonable doubt to find that a defendant’s prior convictions were “committed on occasions different from one another,” as is necessary to impose an enhanced sentence under the Armed Career Criminal Act.

There are a number of other lower-profile criminal cases which could prove quite interesting for various reasons, eg, Diaz v. U.S., No. 23-14 and Snyder v. U.S., No. 23-108, but Smith and Erlinger seem to me like the cases getting relatively less attention for which a "big" SCOTUS ruling could end up having a surprisingly big impact.

I am certain my ivory tower realities (and my particular interest in sentencing topics) influences my sleeper list.  I'd be eager to hear others' views in the comments, either about other possible criminal justice sleeper cases or about any of the higher-profie criminal cases (eg, Rahimi, Fischer, Grants Pass, Trump) that they think might produce an opinion that defies expectations.

A big (but still abridged) Sunday round-up of lots of (non-capital) stories major and minor

In this post a few days ago, I flagged a handful of notable capital sentencing stories making headlines at the start of June. I also noted that I hoped to find time to do a broader round-up of a broader array of sentencing news and commentary.  A little extra time allowws me the chance to note these pieces (which are still not all those of note in recent days):

From the AP, "Trump’s case casts a spotlight on movement to restore voting rights to those convicted of felonies"

From The Atlantic, "Why California Is Swinging Right on Crime"

From Empower Mississippi, "Prosecutorial Overreach: Not Just a Trump Problem"

From Forbes, "Federal Prisoner’s Dilemma, Cell Phone Or Not"

From KRCA, "Gov. Newsom, Democratic leaders are trying to negotiate Prop 47 reform off the November ballot"

From PennLive, "Value of human body parts becomes sentencing issue in federal trafficking case"

From Politico, "‘Cooking someone to death’: Southern states resist calls to add air conditioning to prisons"

From Real Clear Politics, "Restoring Confidence in DOJ Requires Accountability, New Leadership"

From Reason, "Federal Supervised Release Is a Wasteful Mess. A Bipartisan Bill in Congress Is Trying To Fix That."

From Rolling Stone, "Feds Closed a Prison Notorious for Abuse. Things Only Got Worse"

From NBC News, "Trump probation interview set for Monday after hush money conviction"

From the New York Times, "Alvin Bragg’s Next Decision on Trump Presents a Political Quandary"

From the Washington Examiner, "Sentencing reform should bring accountability and redemption"

"Positive Credentials That Limit Risk: A Report on Certificates of Relief"

The title of this post is the title of this notable new report produced by the Collateral Consequences Resource Centerand authored by Margaret Love and Nick Sibilla.  Here is the start of the report's abstract:

This report deals with a form of relief from the collateral consequences of a conviction that is less far-reaching than expungement or other forms of record clearing, but is potentially available to more people at an earlier point in time. These so-called “certificates of relief” do not limit public access to a person’s record, but they may be effective in reducing many conviction-related disadvantages in the workplace, including by providing employers and others with protection against the risk of being sued for negligence.

At least as long as expungement and sealing remain unavailable to many people with a felony conviction record, or are available only after lengthy waiting periods, certificates of relief can provide an important boost to a state’s reentry scheme, and serve as a bridge to more thorough forms of record relief.  Yet it appears that certificates have been largely ignored in many states by the courts that are empowered to dispense them, as well as by the advocacy community whose clients might benefit from them.  At the same time, they are beginning to be widely used by prison and parole agencies to encourage employment opportunities and otherwise facilitate reentry for those exiting prison or completing supervision.

Given the limits many perceive in record clearing as a comprehensive reentry strategy, social science researchers have become interested in studying the effect of laws that aim to increase the positive information about individuals with a criminal record to counter the negative effect of the record itself.  This report is intended to support these research efforts by describing the state of the law relating to certificates of relief in the 21 states that now offer them.  A follow-up study will look at pardons. We hope to stimulate interest in a type of criminal record relief that has been neglected in recent years as background screening has become widespread.

We hope that this report will stimulate public interest in a type of relief that has been neglected in recent years as background screening has become widespread, and suggest ways to make it more widely available. Our goal is to encourage a view of certificates and expungement as complementary parts of a single structured system of serially available criminal record relief.