Sentencing Law and Policy

"Can a prosecutor, even a progressive or reform-minded one, really help dismantle mass incarceration?"

The title of this post is the subtitle of this new piece at Inquest, titled "The Prosecutor Paradox," authored by Premal Dharia, James Forman, Jr. and Maria Hawilo. The piece starts with this "Editors’ Note":

This article is excerpted from Dismantling Mass Incarceration.  In the anthology, the essay introduces the section on the role that prosecutors play in mass incarceration — and could potentially play in ending it.  Other sections examine the role of police, public defenders, judges, prisons themselves, and “aftermath,” or the lifetime punishments that continue after release from prison.  The essays referenced here are included in this section of the book.

And the piece substantively begins and ends this way:

In the popular imagination, lawyers argue each side of an issue, while the judge or jury makes the decision.  But when we worked as public defenders, we learned that prosecutors were often the true power brokers:  They chose what charges to bring, how much discovery material to provide, and whether to offer a plea bargain. And we believed they often used their authority for ill, standing as barriers between our clients and justice....

In the Inquest forum discussion for which this essay serves as opening, we invited contributors to reflect on the role that prosecutors might play in ending mass incarceration.  We encouraged them in particular to consider the following questions: Is addressing the role of prosecutors among the most effective means of dismantling mass incarceration?  If so, is electing reform-minded prosecutors a productive path or does it merely entrench and legitimize the system that produced the problem in the first place?  Instead of elevating and supporting progressive prosecutors, should we work to limit the power of prosecutors altogether?  Or can we pursue multiple paths at once?

Supreme Court, by an 8-1 vote, rejects Second Amendment challenge to § 922(g)(8)

The Supreme Court this morning in US v. Rahimi, No. 22-915 (S. Ct. June 21, 2024) (available here), reversed a Fifth Circuit ruling that the Second Amendment was violated by a federal criminal law that prohibits any persons under a domestic violence restraining order from possessing a gun. Chief Justice Roberts authored a relatively short opinion for the Court and it starts and ends this way:

A federal statute prohibits an individual subject to a domestic violence restraining order from possessing a firearm if that order includes a finding that he “represents a credible threat to the physical safety of [an] intimate partner,” or a child of the partner or individual. 18 U.S.C. §922(g)(8). Respondent Zackey Rahimi is subject to such an order. The question is whether this provision may be enforced against him consistent with the Second Amendment....

In Heller, McDonald, and Bruen, this Court did not “undertake an exhaustive historical analysis . . . of the full scope of the Second Amendment.” Bruen, 597 U. S., at 31.  Nor do we do so today.  Rather, we conclude only this: An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.

The judgment of the Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

Lengthy concurrences -- one by Justice Sotomayor joined by Justice Kagan and separate ones by Justice Gorsuch, by Justices Kavanaugh, by Justice Barrett and by Justice Jackson -- provide a whole lot more for Second Amendment folks to sort through. And Justice Thomas has a lengthy dissent that is of note in part because he was the author of th landmark Bruen decision.

I am certain a lot of other folks who are expert in the Second Amendment (as well as those who are not) will have a lot to say about Rahimi.  But the closing "only this" statement in the opinion for the Court leads me to think that litigation over the Second Amendment is not going to get much easier for lower courts after this ruling. 

Supreme Court, by unanimous vote, expands (and tweaks?) application of the Confrontation Clause

The Supreme Court this morning in Smith v. Arizona, No. 22-899 (S. Ct. June 21, 2024) (available here), voted unanimously to vacate a state conviction because the defendant did not have his Sixth Amendment rights of confrontation properly respected. Justice Kagan authored the opinion for the COurt, and it starts this way:

The Sixth Amendment’s Confrontation Clause guarantees a criminal defendant the right to confront the witnesses against him. The Clause bars the admission at trial of “testimonial statements” of an absent witness unless she is “unavailable to testify, and the defendant ha[s] had a prior opportunity” to cross-examine her.  Crawford v. Washington, 541 U.S. 36, 53–54 (2004). And that prohibition applies in full to forensic evidence. So a prosecutor cannot introduce an absent laboratory analyst’s testimonial out-ofcourt statements to prove the results of forensic testing. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 307, 329 (2009).

The question presented here concerns the application of those principles to a case in which an expert witness restates an absent lab analyst’s factual assertions to support his own opinion testimony.  This Court has held that the Confrontation Clause’s requirements apply only when the prosecution uses out-of-court statements for “the truth of the matter asserted.” Crawford, 541 U.S., at 60, n. 9. Some state courts, including the court below, have held that this condition is not met when an expert recites another analyst’s statements as the basis for his opinion. Today, we reject that view.  When an expert conveys an absent analyst’s statements in support of his opinion, and the statements provide that support only if true, then the statements come into evidence for their truth. As this dispute illustrates, that will generally be the case when an expert relays an absent lab analyst’s statements as part of offering his opinion.  And if those statements are testimonial too — an issue we briefly address but do not resolve as to this case— the Confrontation Clause will bar their admission.

Because the Confrontation Clause does not apply at sentencing and I have never been able to figure it out, I am not sure how big a ruling this is. I sense from the two concurrences that this area of law is going to continue to be messy, but perhaps others can speak to the nature of the mess to expect after Mr. Smith can to SCOTUS jurisprudence.

Supreme Court, by unique 6-3 vote, decided Apprendi rights apply to certain ACCA findings

Among the many reasons I find the Apprendi/Blakely line of cases so fascinating is that the jurisprudence here, as Forest Gump might but it, is "like a box of chocolates ... you never know what you're gonna get."  The Supreme Court's lengthy ruling this morning in Erlinger v. US, No. 23-370 (S. Ct. June 21, 2024) (available here), highlights this reality through this remarkable line-up of Justices:

GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, SOTOMAYOR, KAGAN, and BARRETT, JJ., joined. ROBERTS, C. J., and THOMAS, J., filed concurring opinions. KAVANAUGH, J., filed a dissenting opinion, in which ALITO, J., joined, and in which JACKSON, J., joined except as to Part III. JACKSON, J., filed a dissenting opinion.

Got that? Here is how Justice Gorsuch's opinion for the Court starts and ends:

This case concerns the Armed Career Criminal Act (ACCA) and the Fifth and Sixth Amendments. ACCA imposes lengthy mandatory prison terms on certain defendants who have previously committed three violent felonies or serious drug offenses on separate occasions.  The question we face is whether a judge may decide that a defendant’s past offenses were committed on separate occasions under a preponderance-of-the-evidence standard, or whether the Fifth and Sixth Amendments require a unanimous jury to make that determination beyond a reasonable doubt....

The jury trial may have “never been efficient.” Apprendi, 530 U. S., at 498 (Scalia, J., concurring).  It may require assembling a group of the defendant’s peers to resolve unanimously even seemingly straightforward factual questions under a daunting reasonable doubt standard.  Avoiding the prejudice associated with the introduction of evidence of past crimes may require careful attention, too.  But the right to a jury trial “has always been” an important part of what keeps this Nation “free.” Ibid.  Because the Fifth and Sixth Amendments do not tolerate the denial of that right in this case, the judgment of the Court of Appeals for the Seventh Circuit is vacated, and the matter is remanded for further proceedings consistent with this opinion.

The concurring opinions are short, and the dissenting opinions are long, and Justice Jackson's views on these issues in her solo dissent merit mention in this first post:

Today, the Court concludes that Apprendi v. New Jersey, 530 U.S. 466 (2000), must be read [so that] facts that relate to a defendant’s prior crimes cannot be determined by judges but instead must be found by juries. I disagree for several reasons, including my overarching view that Apprendi was wrongly decided. Like many jurists and other observers before me, I do not believe that Congress exceeds its constitutional authority when it empowers judges to make factual determinations related to punishment and directs that a particular sentencing result follow from such findings.

I recognize, of course, that Apprendi is a binding precedent of this Court, and one that “has now defined the relevant legal regime” for nearly a quarter century. Alleyne v. United States, 570 U.S. 99, 122 (2013) (Breyer, J., concurring in part and concurring in judgment).  Given that reality, untangling the knots Apprendi has tied is probably infeasible at this point in our Court’s jurisprudential journey.  But considering the flaws inherent in Apprendi’s approach, I cannot join today’s effort to further extend Apprendi’s holding, particularly when there is a well-established recidivism exception to the Apprendi rule that applies to the circumstances of the case before us now.

When thinking about issues like acquitted conduct and other matters, I have been (wrongly) assuming that Justice Jackson would likley be a vote for expanding Apprendi rights and that Justice Barrett would likley be a vote for limiting Apprendi rights. That they are on opposite sides here is so interesting, and reinforces yet again my view that the "true originalists" are going to be, in lots of settings, keen on expending crimianl defendant rights against the government (discussed a bit here).

"Tolling Justice"

The title of this post is the title of this new paper authored by Anjelica Hendricks available via SSRN.  Here is its abstract:

Police officers commit crimes. All too often, however, they are not prosecuted.  For decades, the conventional explanation has been that unprosecuted police crimes are the product of human choices: prosecutors who shield the police, unions that immunize their members from accountability, and police themselves for refusing to condemn their colleagues.  Though these explanations play a role in the phenomenon, they are incomplete.

This Article shows that there is another reason why police officers frequently escape criminal accountability: statutes of limitations.  Using a hand-built, original dataset of 838 likely police crimes, I find that statutes of limitations prevented prosecutors from bringing charges based on 642 of those crimes — a rate of 76.6%.  These crimes were not minor offenses: in many instances, officers tortured suspects, committed perjury, tampered with evidence, and sexually abused witnesses.  Shockingly, after committing these offenses, many unprosecuted officers remain in positions of power, as leaders of police agencies and even judges.

After presenting this evidence, the Article grapples with the question whether statutes of limitation should shield police in this way.  Although statutes of limitation are reasonably understood to protect certain fairness and legitimacy values associated with procedural justice, I argue that those very values should counsel against applying statutes of limitation to insulate police wrongdoing.

Furthermore, society has developed criminal law to address what we believe to be particularly egregious acts. When police commit crimes, there is expressive value in treating them as such.  Fortunately, although statutes of limitations currently work to shield the police, they are amendable.  They exist at the mercy of legislatures who have seen fit to amend statutes of limitations previously in the interests of justice.  The Article accordingly concludes by describing the political economy of reform.

Supreme Court, by 6-3 vote, rejects claim that mental state expert testimony violated FRE 704(b)

The Supreme Court this morning handed down a short opinion in Diaz v. United States, No. 23-14 (S. Ct. June 20, 2024) (available here).  Justice Thimas authored the opinion for the Court, which starts this way:

Federal Rule of Evidence 704(b) prohibits expert witnesses from stating opinions “about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.”  In this drug-trafficking prosecution, petitioner argued that she lacked the mental state required to convict because she was unaware that drugs were concealed in her car when she drove it across the United States-Mexico border.  At trial, the Government’s expert witness opined that most drug couriers know that they are transporting drugs.  Because the expert witness did not state an opinion about whether petitioner herself had a particular mental state, we conclude that the testimony did not violate Rule 704(b).  We therefore affirm.

Justice Jackson authored a concurrence which explains and stresses that "the type of mental-state evidence that Rule 704(b) permits can prove essential not only for prosecutors, but for defendants as well."

Justice Gorsuch authored a dissent joined by Justices Sotomayor and Kagan that starts this way:

Federal Rule of Evidence 704(b) prohibits an expert witness from offering an opinion “about whether the defendant did or did not have [the] mental state” needed to convict her of a crime.  “Those matters,” the Rule instructs, “are for the trier of fact alone.” Following the government’s lead, the Court today carves a new path around that command. There’s no Rule 704(b) problem, the Court holds, as long as the government’s expert limits himself to testifying that most people like the defendant have the mental state required to secure a conviction.

The upshot?  The government comes away with a powerful new tool in its pocket.  Prosecutors can now put an expert on the stand — someone who apparently has the convenient ability to read minds — and let him hold forth on what “most” people like the defendant think when they commit a legally proscribed act.  Then, the government need do no more than urge the jury to find that the defendant is like “most” people and convict.  What authority exists for allowing that kind of charade in federal criminal trials is anybody’s guess, but certainly it cannot be found in Rule 704.

Via per curiam (with lots of separate opinions), SCOTUS reverses Fifth Circuit's approach to retaliatory arrest claim

The Supreme Court this morning handed down a short per curiam opinion today in Gonzalez v. Trevino, No. 22-1025 (S. Ct. June 20, 2024) (available here). That opinion runs less than five full pages and starts this way:

In Nieves v. Bartlett, 587 U.S. 391, 402 (2019), this Court held that, as a general rule, a plaintiff bringing a retaliatory-arrest claim “must plead and prove the absence of probable cause for the arrest.”  At the same time, we recognized a narrow exception to that rule.  The existence of probable cause does not defeat a plaintiff ’s claim if he produces “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Id., at 407.  We granted certiorari in this case to consider whether the Fifth Circuit properly applied these principles.  It did not.  We therefore vacate that court’s judgment and remand for proceedings consistent with this opinion.

Three Justices (Alito, Kavanaugh and Jackson) authored concurring opinons of various lengths, and Justice Thomas authored a solo dissent.

Supreme Court, by 6-3 vote, clarifies (a bit) the rules for § 1983 malicious-prosecution claims

The Supreme Court this morning handed down a short opinion in Chiaverini v. City of Napoleon, No. 23-50 (S. Ct. June 20, 2024) (available here). Justice Kagan authored the opinion for the Court, which starts this way:

This case involves what is often called a Fourth Amendment malicious-prosecution claim under 42 U.S.C. §1983.  To succeed on such a claim, a plaintiff must show that a government official charged him without probable cause, leading to an unreasonable seizure of his person.  See Thompson v. Clark, 596 U.S. 36, 43, and n. 2 (2022).  The question presented here arises when the official brings multiple charges, only one of which lacks probable cause. Do the valid charges insulate the official from a Fourth Amendment malicious-prosecution claim relating to the invalid charge? The answer is no: The valid charges do not create a categorical bar. We leave for another day the follow-on question of how to determine in those circumstances whether the baseless charge caused the requisite seizure.

Justice Thomas authored a short dissent that was joined by Justice Alito and starts this way:

Jascha Chiaverini sued several city officials for damages under 42 U.S.C. §1983. He alleged that they violated his Fourth Amendment rights by subjecting him to a malicious prosecution. I continue to adhere to my belief that a “malicious prosecution claim cannot be based on the Fourth Amendment.”  Manuel v. Joliet, 580 U.S. 357, 378 (2017) (ALITO, J., joined by THOMAS, J., dissenting).  Accordingly, I would affirm the dismissal of Chiaverini’s claim.

Justice Gorsuch authored an even shorter dissent that starts this way:

Section 1983 performs vital work by permitting individuals to vindicate their constitutional rights in federal court. But it does not authorize this Court to expound new rights of its own creation.  As this Court has put it, §1983 does not turn the Constitution into a “‘“font of tort law.”’” Albright v. Oliver, 510 U.S. 266, 284 (1994) (Kennedy, J., concurring in judgment) (quoting Parratt v. Taylor, 451 U.S. 527, 544 (1981)).

Not quite original(ist) musings on SCOTUS showing little interest in constitutional criminal procedure cases

In this post over at Crime & Consequences noting the Supreme Court's latest criminal statutory case cert grant (flgged here), Kent Scheidegger closes with this notable lament:  

The high court’s apparent lack of interest in the constitutional criminal procedure cases that once made up a large part of its docket is frustrating.  With a solid majority finally in place who are dedicated to the real Constitution that the people actually adopted, there are large piles of pseudo-constitutional barriers to justice that could be corrected.  Yet the majority doesn’t seem to be much interested.

A variation of this frustration often echoes in Orin Kerr's (bemused?) hand-wringing about the fact that the Supreme Court is completing "three straight Terms of deciding no Fourth Amendment cases."  And I certainly have been heard to express disappointment about the Justices' failure to take up consitutional questions related to acquitted conduct and other suspect sentencing practices.  

Because the current Court may not experience changes in membership for at least a few more years, there is every reason to expect its recent cert granting (and cert denial) tendencies will continue for some time.  So Kent and Orin and I and others interested in constitutional criminal procedure cases should probably expect our collective frustrations to continue.  But just why has this historically large part of the Supreme Court's docket in recent years experienced such shrinkage? 

Kent's reference to "the real Constitution," as well as cases still pending before the Justices this Term and the interesting First Amendment case in Vidal v. Elster last week, prompts me to muse with some originalist (though not likley original) thoughts on this front.  As the Vidal case highlights, even Justices who embrace originalist approaches to interpreting the Constitution can reach different conclusions in hard cases.  To borrow a notable passage from Justice Barrett's opinion, there are various "judge-made tests" used by avowed originalists, and the current Justcies may be unqiuely worried that in constitutional criminal procedure cases different Justices may reach different results due to which "judge-made tests" they adopt and how they apply that test. 

A variation of this story defines modern Second Amendment jurisprudence, especially since the Justices in Bruen made up a new originalist test for assessing the constitutionality of gun restrictions.  For two years, we have seen considerable uncertainty and variation in judicial determinations about an array of federal and state gun prohibitions, and the Justices were urged by the US Solicitor General to clean up some of the constitutional messiness via the Rahimi case.   That we still await a ruling in Rahimi suggests the Court is not finding it easy to clarify its originalist Second Amendment.  Meanwhile, at least a half-dozen other federal gun prohibitions are confounding lower courts (with more in the states), all of which the Rahimi ruling seems unlikley to conclusively resolve. 

Why am I not expecting Rahimi to conclusively clarify originalist Second Amendment jurisprudence?  Because two other cases still on the current SCOTUS docket, Smith v. Arizona (dealing with the Confrontation Clause) and Erlinger v. US (dealing with the Jury Trial right), are the continuing echoes of game-changing originalist constitutional criminal procedure rulings from 20 years ago.  In the same Term, Justice Scalia brought originalism to new prominence via Crawford and Blakely, and I am not the only academic who has made a career trying to sort through the proper way to apply an originalist Sixth Amendment to all the intricacied of modern criminal justice decision-making.  That Sixth Amendment jurisprudence has been messy and confusing since Crawford and Blakely does not mean these cases were wrongly decided or misguided (indeed, my love and admiration for the Blakely ruling endures).  But, while none of the current Justices save Justice Thomas were even on the Court when Crawford and Blakely were decided, they have surely taken note of the steady stream of cert petitions highlighting the challenges of applying an originalist jurisprudence in these spaces.

I could go on and on by noting, for example, the ambivalence of many Justices to how Justice Scalia in Jones and Justice Gorsuch in Carpenter seemed inclined to "originalize" Fourth Amendment jurisprudence.  Also notable, but still unclear, is whether the pending Grants Pass case might lead the current Court to take an originalist Eighth Amendment turn.  The oral argument did not really hint at that possibility, but one never knows. 

Against that backdrop, I will speculated that those Justices who may be most consistently interested in originalist approaches to the Constitution are also the ones who realize how truly hard and contestable originalist doctrines can prove to be, especially for criminal procedure issues in which there is a lot of text, and a lot of history, and a lot of tradition to sort through and (re)interpret.  And the whole Court surely realizes that once its jurisprudence takes a robust originalist turn (see, eg, Blakely, Bruen, Crawford and surely others), it is alwfully hard to turn back.  And, again with recent experiences in mind, an originalist turn in this arena often will entail that criminal defendant of all sorts start looking to make new arguments of all sort that the originalist turn can and should mean even more rights and protections than existing doctrines provide.

Of course, as we get new SCOTUS rulings this week and next, my thinking about originalism and constitutional criminal procedure and the SCOTUS docket may change.  But for now, I fear that Kent and Orin and others may need to be content with a whole bunch of statutory cases and immunity claims. 

US Sentencing Commission releases latest "compassionate release" data through March 2024

The US Sentencing Commission today updates some of its data on sentence reduction motions on this webpage, particularly though this new Compassionate Release Data Report running through the second quarter of USSC Fiscal Year 2024 (meaning through the end of March 2024).   Notably, the latest data run includes information for nearly six months after the Commission's new "sentence reduction" guideline became law, and nearly a year after the Commission submitted this guideline to Congress.

As I have noted before, the long-term data going back to the height of the COVID pandemic period reveals, unsurprisingly, that we now see many fewer sentence reduction motions filed or granted than in years past.  Though there are month-to-month variations, it would be roughly accurate to say recent months see, on average, a few dozen compassionate release motions granted and a couple hundred  motions denied nationwide.  And the number of motions resolved and the grant rates from various districts remain quite different within and among circuits.

There are all sorts of other interesting data points in this new report relating to both the crimes and backgrounds of defendants bringing these motions and getting sentence reductions.  Especially because there are so many elements to sentence reduction motions and so much discretion in the hands of district judges when considering these motions, I continue to find these data stories fascinating, and I am hopeful researchers (and the USSC) will keep exploring how this part of the First Step Act continue to function.

New Prison Policy Initiative briefing explores impact of Dobbs on women under community supervision

I often say to students (and sometimes highlight here) that every big legal story has some kind of sentencing echoes.  This new Prison Policy Initiative briefing makes that point with respect to the Supreme Court's Dobbs ruling two years ago.  The full title and subtitle of this briefing summarizes its coverage: "Two years after the end of Roe v. Wade, most women on probation and parole have to ask permission to travel for abortion care.  Since the 2022 Dobbs decision, 21 states have restricted abortions earlier than the Roe v. Wade standard. Now, more of the 800,000 women on probation and parole must seek abortion care out-of-state — but for many, whether they can get there depends on an officer’s decision." 

Here is an excerpt from the briefing's discussion of its key findings:

To understand how this post-Dobbs landscape impacts women under the U.S.'s massive system of community supervision, we examined standard supervision conditions in each state, along with the number of women who must comply with them. We find that the one-two punch of abortion and supervision restrictions impacts an estimated 4 out of 5 womem (82%) on probation or parole nationwide.  That means that for the vast majority of people under community supervision, the ability to seek abortion care out-of-state is left not to the pregnant person, but to the discretion of a correctional authority, typically their probation or parole officer.

Specifically, we find that, excluding federal probation and post-release supervision, 82% of women on probation and 85% of women on parole live in states that (1) either completely ban abortion or restrict it based on gestational age and (2) list travel restrictions as a standard condition of supervision.

"Illegitimate Choices: A Minimalist(?) Approach to Consent and Waiver in Criminal Cases"

The title of this post is the title of this new paper authored by Christopher Slobogin and Kate Weisburd now available via SSRN. Here is its abstract:

Current doctrine justifies many government searches, interrogations, and deprivations of liberty on the ground that the target of the action “voluntarily” agreed to it or waived applicable rights.  The standard critiques of this doctrine — that these choices are often or always coerced, the result of an unconstitutional condition, or inherently shaped by race, gender, and class — have usually been given short shrift by the courts, leading one of us to question whether the practice of using consent and waiver to deprive someone of basic rights and liberties should be abolished. In the meantime, we jointly wondered if there is a more immediate “minimalist” path forward, drawing on the Supreme Court’s own jurisprudence. 

This article takes the position that in many situations the voluntariness of a person’s choice need not be an issue, because the option the government proffers to that person is legally illegitimate.  Specifically, the “illegitimate choice” test we propose would make concerns about the validity of a person’s choice legally irrelevant in three situations: (1) when Supreme Court caselaw, properly construed, has made it so; (2) when the benefit the government offers is premised on acceptance of a condition that is not narrowly tailored to a compelling interest; or (3) when the benefit the government offers is itself unconstitutional. This approach would call into question searches based on the third-party doctrine, promises of leniency during interrogations, many types of pretrial and post-conviction dispositional conditions, certain waivers associated with plea bargaining, some types of special needs searches, and consent searches conducted in the absence of suspicion. In all of these situations, the illegitimate choice test would avoid difficulties with determining whether a choice is coerced or voluntary, while still maintaining consent as a viable option at other criminal justice decision-points.

SCOTUS grants cert to address fraudulent inducement theory of federal criminal fraud

As explained here at SCOTUSblog, the Justice via a new order list has filled in a bit more of its still light docket for next Term:

The justices on Monday morning added four new cases to their docket for the 2024-25 term. In a list of orders from the justices’ private conference last week, the court agreed to tackle issues ranging from the burden of proof for an employer hoping to rely on an exemption from the Fair Labor Standards Act to the pleading standards for cases under the Private Securities Litigation Reform Act.

One of the four cases taken up by SCOTUS today is a criminal fraud case: Kousisis v. US.  Here is how the cert petition in this case presented  the questions to the Court:

The circuits are split 6-5 on the validity of the fraudulent inducement theory of mail and wire fraud. The Questions Presented are:

Whether deception to induce a commercial exchange can constitute mail or wire fraud, even if inflicting economic harm on the alleged victim was not the object of the scheme.

Whether a sovereign’s statutory, regulatory, or policy interest is a property interest when compliance is a material term of payment for goods or services.

Whether all contract rights are “property.”

Maryland Governor to issue mass pardons for low-level marijuana offenses estimated to cover over 175,000 convictions

As reported in this Washington Post piece, "Maryland Gov. Wes Moore will issue a mass pardon of more than 175,000 marijuana convictions Monday morning, one of the nation’s most sweeping acts of clemency involving a drug now in widespread recreational use."  Here is more about this high-profile clemency effort:

The pardons will forgive low-level marijuana possession charges for an estimated 100,000 people in what the Democratic governor said is a step to heal decades of social and economic injustice that disproportionately harms Black and Brown people. Moore noted criminal records have been used to deny housing, employment and education, holding people and their families back long after their sentences have been served.

“I’m ecstatic that we have a real opportunity with what I’m signing to right a lot of historical wrongs,” Moore said in an interview. “If you want to be able to create inclusive economic growth, it means you have to start removing these barriers that continue to disproportionately sit on communities of color.”

Moore called the scope of his pardons “the most far-reaching and aggressive” executive action among officials nationwide who have sought to unwind criminal justice inequities with the growing legalization of marijuana. Nine other states and multiple cities have pardoned hundreds of thousands of old marijuana convictions in recent years, according to the National Organization for the Reform of Marijuana Laws....

The pardons, timed to coincide with Wednesday’s Juneteenth holiday, a day that has come to symbolize the end of slavery in the United States, come from a rising star in the Democratic Party and the lone Black governor of a U.S. state whose ascent is built on the promise to “leave no one behind.”...

Maryland’s pardon action rivals only Massachusetts, where the governor and an executive council together issued a blanket pardon in March expected to affect hundreds of thousands of people....

Maryland officials said the pardons, which would also apply to people who are dead, will not result in releasing anyone from incarceration because none are imprisoned. Misdemeanor cannabis charges yield short sentences and prosecutions for misdemeanor criminal possession have stopped, as possessing small amounts of the drug is legal statewide.

Moore’s pardon action will automatically forgive every misdemeanor marijuana possession charge the Maryland judiciary could locate in the state’s electronic court records system, along with every misdemeanor paraphernalia charge tied to use or possession of marijuana. Maryland is the only state to pardon such paraphernalia charges, state officials said.

Celebrating Father's Day rounding up sentencing stories regarding two high-profile fathers awaiting sentencing

An exiting finish to the US Open, some nice gifts, and calls with my dad and from my children all contributed to a very enjoyable Father's Day for me.  But at least two high-profile fathers  must have spent at least a moment or two today having to worry about their upcoming sentencings.  In light of that reality, I figured I would flag a few recent sentencing pieces catching my eye regarding these two fathers:

On sentencing Donald Trump:

From ABC News, "Will Trump go to prison for felony hush money conviction? Experts are split"

From CNBC, "Will Donald Trump go to jail? Here’s what to expect from the former president’s sentencing"

From Rolling Stone, "The Legal Case for Sentencing Trump to Prison"

From the Washington Examiner, "Bannon warns Trump will be sentenced to ‘multiple years in prison’ despite experts saying otherwise"

 

On sentencing Hunter Biden:

From CNN, "Hunter Biden next faces sentencing in gun case"

From the Daily Mail, "What are the sentences other people have received for Hunter's crimes?"

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

From Set for Sentencing, "Hunter Biden Conviction - What To Expect at Sentencing"