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June 29, 2024

Taking early stock of the SCOTUS criminal docket (and diverse votes therein)

Though there is still one last criminal case pending before SCOTUS, Trump v. US, I do not think it is too early to take stock as to how the Supreme Court resolved the criminal cases on its docket this Term.  Of course, just figuring out which cases should count as the "criminal cases" can be contestable, as the Court addresssed a number of "criminal law adjacent" cases dealing with issues ranging from immigration consequences to civil forfeiture process to civil rights suits against law enforcement.  Below, I have listed cases  involving federal/state prosecutors up against criminal defendants (and I welcome comments about cases I should add to this list).

Argued OT23 SCOTUS cases with wins for government/prosecutors (total/notable votes in case)

Pulsifer v. US (federal case, 6-3 vote, Justice Kagan writing for Court, Justice Gorsuch writing dissent) 

US v. Rahimi (federal case, 8-1 vote, Chief Justice Roberts writing for Court, Justice Thomas writing dissent) 

Brown v. US (federal case, 6-3 vote, Justice Alito writing for Court, Justice Jackson (joined by Justice Gorsuch) writing dissent)

McIntosh v. US (federal case, 9-0 vote, Justice Sotomayor writing for Court) 

Diaz v. US (federal case, 6-3 vote, Justice Thomas writing for Court, Justice Gorsuch writing dissent)

Thornell v. Jones (habeas case, 6-3 vote, Justice Alito writing for Court, Justices Sotomayor and Jackson writing dissents)

City of Grants Pass, Oregon v. Johnson (state case, 6-3 vote, Justice Gorsuch writing for Court, Justice Sotomayor writing dissent)


Argued OT23 SCOTUS cases with wins for criminal defendants (total/notable votes in case)

McElrath v. Georgia (state case, 9-0 vote, Justice Jackson writing for Court, Justice Alito writing concurrence)

Smith v. Arizona (state case, 9-0 vote, Justice Kagan writing for Court, multiple concurrences)

Erlinger v. US (federal case, 6-3 vote, Justice Gorsuch writing for Court, Justices Kavanaugh and Jackson writing dissents)

Snyder v. US (federal case, 6-3 vote, Justice Kavanaugh writing for Court, Justice Jackson writing dissent)

Fischer v. US (federal case, 6-3 vote, Chief Justice Roberts writing for Court, Justice Barrett writing dissent) 

With the Trump ruling still on the way (which seems like it might be a partial win for the prosecution and the defense), we have a baker's dozen of criminal cases this Term.  A couple were small and relatively inconsequential (McElrath and McIntosh), and a couple seem certain to engender lots of future litigation (Rahimi and Smith).  Most intriguingly, only in a few cases (Grants Pass, Snyder and Thornell) did the Court divide along standard ideological lines, and one of those cases was a win for a federal defendant.  And we saw opinions from every Justice, with Justices Gorsuch and Jackson being especially vocal in this part of the docket.

The criminal docket made up nearly a quarter of the total SCOTUS docket in this Term (and more than a third of the full docket if we consider all the "criminal law adjacent" cases).  Sadly, with more than 20 cases on the docket for next Term, only three are criminal cases.  The Justices are sure to add some more criminal cases as the full OT24 docket fills out, but I fear it may be hard for next Terms it prove as dynamic and diverse as the one now winding down.  

June 29, 2024 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Rights, Reasons, and Culpability in Tort Law and Criminal Law"

The title of this post is the title of this new article authored by Gregory Antill now available via SSRN.  Here is its abstract:

This article considers how a mens rea regime growing out of principles of corrective or restorative justice, taken by many theorists to underly tort law, differs from the kind of mens rea regimes which arise in a system of criminal law grounded in more traditional retributivist, expressivist, or deterrence-based principles.  Recent scholarly proposals to import restorative and corrective justice approaches to criminal law are often motivated by the view that, by eschewing punitive punishments, such approaches are less harmful toward defendants.  This article argues, in contrast, that a more traditional “offender-centric” criminal law focused on the degree of blameworthiness of the defendant actually affords less culpable defendants more protection than would a victim-centric criminal law, modeled after tort law and grounded in principles of corrective or restorative justice.

June 29, 2024 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

June 28, 2024

Supreme Court, by 6-3 vote, limits reach of federal statute criminalizing obstructing official proceeeding in Jan 6 prosecution

With a notable configuration of Justices, the Supreme Court by a 6-3 vote further continued its recent tendency to give a federal criminal statute a limited reading through its decision today in Fischer v. US, No. 23-55 (S. Ct. June 28, 2024) (available here). Chief Justice Roberts authored the opinion for Court, which starts and ends this way:

The Sarbanes-Oxley Act of 2002 imposes criminal liability on anyone who corruptly “alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding.” 18 U.S.C. §1512(c)(1). The next subsection extends that prohibition to anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” §1512(c)(2). We consider whether this “otherwise” clause should be read in light of the limited reach of the specific provision that precedes it....

To prove a violation of Section 1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other things used in the proceeding, or attempted to do so.  See supra, at 9.  The judgment of the D. C. Circuit is therefore vacated, and the case is remanded for further proceedings consistent with this opinion. On remand, the D. C. Circuit may assess the sufficiency of Count Three of Fischer’s indictment in light of our interpretation of Section 1512(c)(2).

Justice Jackson authored a concurring opinion which has this paragraph to conclude its opening:

Notwithstanding the shocking circumstances involved in this case or the Government’s determination that they warrant prosecution, today, this Court’s task is to determine what conduct is proscribed by the criminal statute that has been invoked as the basis for the obstruction charge at issue here. I join in the Court’s opinion because I agree with the majority that §1512(c)(2) does not reach “‘all forms of obstructive conduct’” and is, instead, “limited by the preceding list of criminal violations” in §1512(c)(1). Ante, at 7–8. I write separately to explain why and how that interpretation of §1512(c) follows from the legislative purpose that this statute’s text embodies.

Justice Barrett authored a lengthy dissent, which was joined by Justices Sotomayor and Kagan. Here is how it starts:

Joseph Fischer allegedly joined a mob of rioters that breached the Capitol on January 6, 2021.  At the time, Congress was meeting in a joint session to certify the Electoral College results. The riot forced Congress to suspend the proceeding, delaying it for several hours.

The Court does not dispute that Congress’s joint session qualifies as an “official proceeding”; that rioters delayed the proceeding; or even that Fischer’s alleged conduct (which includes trespassing and a physical confrontation with law enforcement) was part of a successful effort to forcibly halt the certification of the election results.  Given these premises, the case that Fischer can be tried for “obstructing, influencing, or impeding an official proceeding” seems open and shut. So why does the Court hold otherwise?

Because it simply cannot believe that Congress meant what it said.  Section 1512(c)(2) is a very broad provision, and admittedly, events like January 6th were not its target. (Who could blame Congress for that failure of imagination?) But statutes often go further than the problem that inspired them, and under the rules of statutory interpretation, we stick to the text anyway.  The Court, abandoning that approach, does textual backflips to find some way — any way — to narrow the reach of subsection (c)(2).  I respectfully dissent.

June 28, 2024 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (39)

Supreme Court, by 6-3 vote, rejects Eighth Amendment defense to charging homeless in Grants Pass

The Supreme Court this morning handed down lengthy opinions City of Grants Pass v. US, No. 23-175 (S. Ct. June 28, 2024) (available here).  Justice Gorsuch authored the opinion for Court, which starts and ends this way:

Many cities across the American West face a homelessness crisis.  The causes are varied and complex, the appropriate public policy responses perhaps no less so. Like many local governments, the city of Grants Pass, Oregon, has pursued a multifaceted approach. Recently, it adopted various policies aimed at “protecting the rights, dignity[,] and private property of the homeless.” App. 152.  It appointed a “homeless community liaison” officer charged with ensuring the homeless receive information about “assistance programs and other resources” available to them through the city and its local shelter. Id., at 152–153; Brief for Grants Pass Gospel Rescue Mission as Amicus Curiae 2–3.  And it adopted certain restrictions against encampments on public property. App. 155–156.  The Ninth Circuit, however, held that the Eighth Amendment’s Cruel and Unusual Punishments Clause barred that last measure.  With support from States and cities across the country, Grants Pass urged this Court to review the Ninth Circuit’s decision. We take up that task now....

Yes, people will disagree over which policy responses are best; they may experiment with one set of approaches only to find later another set works better; they may find certain responses more appropriate for some communities than others. But in our democracy, that is their right. Nor can a handful of federal judges begin to “match” the collective wisdom the American people possess in deciding “how best to handle” a pressing social question like homelessness. Robinson, 370 U.S., at 689 (White, J., dissenting). The Constitution’s Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy. The judgment below is reversed, and the case is remanded for further proceedings consistent with this opinion. 

Justice Thomas authored a short concurring opinion to urge the overruling of the Robinson ruling that the majority was content to distinguish: "rather than let Robinson’s erroneous holding linger in the background of our Eighth Amendment jurisprudence, we should dispose of it once and for all."

Justice Sotomayor authored a lengthy dissent, which was joined by Justices Kagan and Jackson.  Here is a paragraph from the start of her opinion:

It is possible to acknowledge and balance the issues facing local governments, the humanity and dignity of homeless people, and our constitutional principles. Instead, the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested. The Constitution provides a baseline of rights for all Americans rich and poor, housed and unhoused. This Court must safeguard those rights even when, and perhaps especially when, doing so is uncomfortable or unpopular. Otherwise, “the words of the Constitution become little more than good advice.” Trop v. Dulles, 356 U.S. 86, 104 (1958) (plurality opinion).

June 28, 2024 in Sentences Reconsidered, Who Sentences | Permalink | Comments (28)

June 27, 2024

"Out of Step: U.S. Policy on Voting Rights in Global Perspective"

The title of this post is the title of this new report from The Sentencing Project, Human Rights Watch, and the American Civil Liberties Union which focuses on the significant numbers of US citizens denied the right to vote in the US based on criminal convictions.  Here is the start of the report's executive summary:

The United States is an outlier nation in that it strips voting rights from millions of citizens solely on the basis of a criminal conviction.  As of 2022, over 4.4 million people in the United States were disenfranchised due to a felony conviction.  This is due in part to over 50 years of U.S. mass incarceration, wherein the U.S. incarcerated population increased from about 360,000 people in the early 1970s to nearly 2 million in 2022.  While many U.S. states have scaled back their disenfranchisement provisions, a trend that has accelerated since 2017, the United States still lags behind most of the world in protecting the right to vote for people with criminal convictions.

The right to vote is a cornerstone of democratic, representative government that reflects the will of the people.  The international consensus on the importance of this right is demonstrated in part by the fact that it is protected in international human rights law.  A majority of the world’s nations either do not deny people the right to vote due to criminal convictions or deny the right only in relatively narrow and rare circumstances.

This report highlights key findings since 2006:

  • The United States remains out of step with the rest of the world in disenfranchising large numbers of people based on criminal convictions.  In part, this is due to a punitive criminal legal system resulting in one of the world’s highest incarceration rates.  As noted above, the country has disenfranchised, due to a felony conviction, over 4.4 million people who would otherwise be legally eligible to vote. This is also due to the laws in many US states that provide for broad disenfranchisement based on convictions.  For this report we examined the laws of the 136 countries around the world with populations of 1.5 million and above, and found the majority — 73 of the 136—never or rarely deny a person’s right to vote because of a conviction.  We also found that, even when it comes to the other 63 countries, where laws deny the right in broader sets of circumstances, the US is toward the restrictive end of the spectrum and disenfranchises, largely through US state law, a wider swath of people on the whole.

  • The United States continues to disenfranchise a wider swath of its citizens based on a felony conviction than most other countries, many U.S. jurisdictions have worked to expand voting rights to persons with criminal convictions since 2006.  Reforms in some jurisdictions within the United States and other countries have limited the loss of voting rights due to a criminal conviction. Among other types of reforms, most U.S. states no longer disenfranchise individuals permanently for life and many no longer disenfranchise individuals upon release from incarceration.  These reforms have occurred through a combination of legislative change, amendments to state constitutions, court victories, and executive action. In some cases, however, as in Florida, expansion of rights restoration has been met with subsequent retrenchment. 

June 27, 2024 in Collateral consequences, Reentry and community supervision | Permalink | Comments (1)

Oklahoma executes man 40 years(!?) after he raped and killed his young stepdaughter

As reported in this AP piece, "Oklahoma executed a man Thursday who was convicted of kidnapping, raping and killing his 7-year-old former stepdaughter in 1984.  Richard Rojem, 66, received a three-drug lethal injection at the Oklahoma State Penitentiary in McAlester and was declared dead at 10:16 a.m., prison officials said."    Here is more:

Rojem, who had been in prison since 1985, was the longest-serving inmate on Oklahoma’s death row....

Rojem was previously convicted of raping two teenage girls in Michigan, and prosecutors said he was angry at Layla Cummings because she reported that Rojem sexually abused her, leading to his divorce from the girl’s mother and his return to prison for violating his parole.

Rojem’s attorneys argued at a clemency hearing this month that DNA evidence taken from the girl’s fingernails did not link him to the crime.... Rojem, who testified at the hearing via a video link from prison, said he wasn’t responsible for the girl’s death. The panel voted 5-0 not to recommend to the governor that Rojem’s life be spared....

Prosecutors said there was plenty of evidence to convict Rojem, including a fingerprint that was discovered outside the girl’s apartment on a cup from a bar Rojem left just before the girl was kidnapped. A condom wrapper found near the girl’s body also was linked to a used condom found in Rojem’s bedroom, prosecutors said.

A Washita County jury convicted Rojem in 1985 after just 45 minutes of deliberations. His previous death sentences were twice overturned by appellate courts because of trial errors. A Custer County jury ultimately handed him his third death sentence in 2007.

Oklahoma, which has executed more inmates per capita than any other state in the nation since the death penalty was reinstated in 1976, has now carried out 13 executions since resuming lethal injections in October 2021 following a nearly six-year hiatus resulting from problems with executions in 2014 and 2015.

With no more executions scheduled in this US for a couple more weeks, the total number of executions nationwide for the first half of 2024 will be nine.

June 27, 2024 in Data on sentencing, Death Penalty Reforms | Permalink | Comments (4)

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

The Collateral Consequences Resource Center today released this new report by Margaret Love titled "Positive Credentials That Limit Risk: A Report on Certificates of Relief. Here is the start of the report's executive summary:

This report deals with a form of relief from the collateral consequences of a criminal 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 addition to a state’s reentry scheme, and serve as a bridge to more thorough forms of record relief like expungement.  We believe that, rather than competing as alternative forms of relief, certificates and expungement can operate as complementary parts of a structured system of serially available criminal record relief.

Yet it appears that certificates have been largely ignored in many states by courts that are empowered to dispense them, as well as by the advocacy community whose clients might benefit from them. State court systems have failed to collect, track, or aggregate basic data like the number of certificate applications, grants, and denials, a failure that makes it almost impossible to evaluate a certificate’s effectiveness in a given state.

At the same time, in a promising development, certificates are being used by prison and parole agencies to facilitate reentry for those exiting prison or completing supervision.

Given the perceived limits of 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 the state of executive pardoning.

June 27, 2024 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

How might crime and punishment issues arise in tonight's presidential debate?

Long-time readers are surely accustomed to my posts in past years that have me wishing, often in vain, that major political debates would extensively engage with a variety of serious criminal justice issues.  With the early first big debate involving both major party candidates in the 2024 Presidential Election taking place tonight, I guess I am a bit late to flag the array of crime and punishment issues I would like to hear the candidates address.

But, remarkably, I am almost certain that some crime and punishment issues will come up in some way tonight given that one candidate is awaiting New York state sentencing following his jury conviction on 34 felony counts and the other candidate is awaiting his son's federal sentencing following his jury conviction on 3 felony counts.  I do not know if the CNN moderator will have a direct question focused on the fact that both candidates could now be described as "justice-involved individuals," but I am certainly expecting these very personal crime and punishment issues to arise in some way tonight.

And, of course, there are a host of more traditional criminal justice policy issues that surely could — and I think should — be a focal point for debate discussion.  For a number of years, public polling has shown voters expressing focused concern about crime (and its connection to immigration policies).  In addition, efforts to change federal marijuana law and policy has become a big talking point for President Biden, and state-level reforms and polling suggest voters across the political spectrum are interested in this issue.  And all sorts of clemency practices and promises have been making news on the campaign trail for various reasons.

Once again, I know not to expect these issues to get the extent of attention that I would like to see at tonight's debate.  But I do think they will get some coverage, and I am looking forward to seeing how.  In the meantime, here are a few recent press pieces flagging some of these issues:

From Marijuana Moment, "Biden Vs. Trump On Marijuana: Where The Candidates Stand Heading Into The 2024 Election"

From The Marshall Project, "Trump and Biden Spar Over Crime Rates Ahead of Their Debate. What Do We Really Know?"

From Salon, "How Joe Biden should handle the issue of Hunter’s conviction at the debate"

From Vox, "Why do Americans always think crime is going up?"

June 27, 2024 in Campaign 2024 and sentencing issues, Who Sentences | Permalink | Comments (9)

June 26, 2024

"Guns, Judges, and Trump"

The title of this post is the title of this notabe new article authored by Rebecca Brown, Lee Epstein and Mitu Gulati. Here is its abstract:

This Essay reports data on the impact of Bruen and its predecessor, Heller, on gun rights cases.  Put mildly, the impact was significant, increasing not only the number of cases in the courts but also the partisanship displayed in the application of Bruen.  And that partisanship increase was particularly large on the part of Trump-appointed judges. The Supreme Court has now decided Rahimi, its first opportunity to apply Bruen.  While the Court's new decision blunted some of the sharpest concerns raised by Bruen, it did not eliminate the key concern, recommitting itself to a test that places considerable unguided discretion in judges, inviting partisan bias.  Thus, the revolution that the Court has wrought through Bruen and Heller seems only to have just begun.

June 26, 2024 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (2)

Texas completes execution for murder committed 23 years ago

As reported in this AP article, a "Texas man who admitted he kidnapped, sexually assaulted and fatally shot an 18-year-old woman in 2001 was executed Wednesday evening. Ramiro Gonzales, 41, was pronounced dead at 6:50 p.m. CDT following a chemical injection at the state penitentiary in Huntsville for the January 2001 killing of Bridget Townsend." Here is more:

Gonzales was repeatedly apologetic to the victim’s relatives in his last statement from the execution chamber. Just before he spoke, a spiritual adviser sang a prayer, resting her left hand on his chest....

Gonzales kidnapped Townsend from a rural home in Bandera County, northwest of San Antonio.  He later took her to his family’s ranch in neighboring Medina County, where he sexually assaulted her before killing her.  Her body wasn’t found until October 2002, when Gonzales led authorities to her remains in southwest Texas after he had received two life sentences for kidnapping and raping another woman.

The U.S. Supreme Court declined a defense plea to intervene about 1 and 1/2 hours before the scheduled execution start time.  The high court rejected arguments by Gonzales’ lawyers that he had taken responsibility for what he did and that a prosecution expert witness now says he was wrong in testifying that Gonzales would be a future danger to society....

Gonzales’ execution was the second this year in Texas and the eighth in the U.S.  On Thursday, Oklahoma is scheduled to execute Richard Rojem for the 1984 abduction, rape and killing of a 7-year-old girl.

June 26, 2024 in Death Penalty Reforms | Permalink | Comments (4)

Supreme Court, by 6-3 vote, rules federal criminal prohibition against bribes does not extend to gratuities

In one of two rulings handed down this morning, the Supreme Court continued its recent tendency to give a federal criminal statute a limited reading through its decision in Snyder v. US, No. 23-108 (S. Ct. June 26, 2024) (available here).  Justice Kavanaugh authored the opinion for Court, which starts this way:

Section 666 of Title 18 makes it a crime for state and local officials to “corruptly” solicit, accept, or agree to accept “anything of value from any person, intending to be influenced or rewarded” for an official act. § 666(a)(1)(B).  That law prohibits state and local officials from accepting bribes that are promised or given before the official act. Those bribes are punishable by up to 10 years’ imprisonment.

The question in this case is whether § 666 also makes it a crime for state and local officials to accept gratuities—for example, gift cards, lunches, plaques, books, framed photos, or the like — that may be given as a token of appreciation after the official act.  The answer is no.  State and local governments often regulate the gifts that state and local officials may accept. Section 666 does not supplement those state and local rules by subjecting 19 million state and local officials to up to 10 years in federal prison for accepting even commonplace gratuities.  Rather, § 666 leaves it to state and local governments to regulate gratuities to state and local officials.

Justice Gorsuch authored a short concurring opinion which starts this way:

Call it what you will. The Court today speaks of inferences from the word “corruptly,” the statute’s history and structure, and associated punishments. See ante, at 7. It discusses concerns of fair notice and federalism. Ibid. But the bottom line is that, for all those reasons, any fair reader of this statute would be left with a reasonable doubt about whether it covers the defendant’s charged conduct. And when that happens, judges are bound by the ancient rule of lenity to decide the case as the Court does today, not for the prosecutor but for the presumptively free individual.

Justice Jackson authored a lengthy dissent, which was joined by Justices Sotomayor and Kagan.  Here are excerpts from the start of her opinion:

James Snyder, a former Indiana mayor, was convicted by a jury of violating § 666 after he steered more than $1 million in city contracts to a local truck dealership, which turned around and cut him a $13,000 check.  He asks us to decide whether the language of § 666 criminalizes both bribes and gratuities, or just bribes. And he says the answer matters because bribes require an upfront agreement to take official actions for payment, and he never agreed beforehand to be paid the $13,000 from the dealership.

Snyder’s absurd and atextual reading of the statute is one only today’s Court could love.  Ignoring the plain text of § 666 — which, again, expressly targets officials who “corruptly” solicit, accept, or agree to accept payments “intending to be influenced or rewarded” — the Court concludes that the statute does not criminalize gratuities at all.  This is so, apparently, because “[s]tate and local governments often regulate the gifts that state and local officials may accept,” ante, at 1, which, according to the majority, means that § 666 cannot.

The Court’s reasoning elevates nonexistent federalism concerns over the plain text of this statute and is a quintessential example of the tail wagging the dog.

June 26, 2024 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (12)

June 25, 2024

Prison Policy Initiative reports on "States of Incarceration: The Global Context 2024"

The Prison Policy Initiative (PPI) today released this new report titled "States of Incarceration: The Global Context 2024." Like many PPI reports, the data and graphics tell a husge part of the story and must be reviewed in the original. Here I will just reprint part of the starting text:

The U.S. has the highest incarceration rate of any independent democracy on earth — worse, every single state incarcerates more people per capita than most nations.  In the global context, even “progressive” U.S. states like New York and Massachusetts appear as extreme as Louisiana and Mississippi in their use of prisons and jails.

The graphic above charts the incarceration rates of every U.S. state and territory alongside those of the other nations of the world.  Looking at each state in the global context reveals that, in every part of the country, incarceration is out of step with the rest of the world.

If we imagine every state as an independent nation, as in the graph above, every state appears extreme.  While El Salvador has an incarceration rate higher than any U.S. state, nine states have the next highest incarceration rates in the world, followed by Cuba.  Overall, 25 U.S. states and three nations (El Salvador, Cuba, and Rwanda) have incarceration rates even higher than the national incarceration rate of the United States. Massachusetts, the state with the lowest incarceration rate in the nation, would rank 30th in the world with an incarceration rate higher than Iran, Colombia, and all the founding NATO nations.

In fact, many of the countries that rank alongside the least punitive U.S. states, such as Turkmenistan, Belarus, Russia, and Azerbaijan, have authoritarian or dictatorial governments, but the U.S. — the land of the free — still incarcerates more people per capita than almost every other nation. Importantly, high incarceration rates have little impact on violence and crime.

June 25, 2024 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (3)

New post-Rahimi SG filing urges SCOTUS to "grant plenary review to resolve Section 922(g)(1)’s constitutionality"

In this post yesterday, I highlighted why the Supreme Court's Second Amendment ruling in US v. Rahimi (basics here), did not make it any easier to figure out if the most prosecuted federal criminal gun prohibition, 18 USC § 922(g)(1), is or is not constitutionally sound in many (most?) cases.  This provision, often described as "felon in possession," formally prohibits all sorts of firearm activity and possession for anyone and everyone  who has "been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year."  In the comments to the post, the discussion turned to some of the pending cases on this issue and speculated about what the Justices might do with these cases.

Helpfiully, a kind reader made sure I did not miss this new SCOTUS filing from US Solicitor General covering five pending cases challenging the constitutionality of the broad "felon in possession" prohibition.  Here is how this filing starts: 

These five cases present the question whether 18 U.S.C. 922(g)(1), the statute prohibiting a person from possessing a firearm if he has been convicted of “a crime punishable by imprisonment for a term exceeding one year,” ibid., violates the Second Amendment.  In each case, we asked this Court to hold the petition for a writ of certiorari pending its decision in United States v. Rahimi, No. 22-915 (June 21, 2024).  Now that the Court has decided Rahimi, we believe that it should grant plenary review to resolve Section 922(g)(1)’s constitutionality.  In particular, the Court should grant the petitions in Doss, Jackson, and either Range or Vincent; consolidate the granted cases for briefing and argument; and hold the remaining petitions pending the resolution of the granted cases.  If the Court chooses not to take that course, it should grant, vacate, and remand (GVR) in Range and deny certiorari in the remaining cases.

The rest of the filing makes the case for resolving this constitutional question in short order, and I was pleased to see this paragraph highlighting the same recent data from the US Sentencing Commission that I flagged in my post:

Although Rahimi undermines the reasoning of the decisions holding Section 922(g)(1) invalid, the present conflict is unlikely to resolve itself without further intervention by this Court. And the costs of deferring this Court’s review would be substantial: Disagreement about Section 922(g)(1)’s constitutionality has already had widespread and disruptive effects. Out of the approximately 64,000 criminal cases reported to the Sentencing Commission in Fiscal Year 2022, more than 7600 involved convictions under Section 922(g)(1). See U.S. Sentencing Comm’n, Quick Facts: 18 U.S.C. § 922(g) Firearms Offenses 1.  Those convictions accounted for nearly 12% of all federal criminal cases.  See ibid. Uncertainty about the statute’s constitutionality thus affects a significant proportion of the federal criminal docket.

Based on part on the vague (and sometimes contradictory) language in Rahimi, I agree wholeheartedly that "the present conflict is unlikely to resolve itself without further intervention" by the Supreme Court. For a variety of reasons, I am fearful that SCOTUS will GVR all these cases and try to keep dodging this issue. But it was obvious to me from the day Bruen was decided (see my post here from two years ago) that an originalist turn in Second Amendment jurisprudence served to make all broad felon-in-possession criminal statutes constitutionally suspect.  SCOTUS has let this critical post-Bruen issue — which impacts roughly one in every six (non-immigration) federal propecutions as well as the Second Amendment rights of up to 10% of the US population — develop (and fester) long enough.  The Justices will have to grant cert on this issue evetually, why not now?

A few (of many) prior related posts (recent and past):

June 25, 2024 in Gun policy and sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (34)

CCJ releases big new report, "Better Crime Data, Better Crime Policy"

The Council on Criminal Justice (CCJ) continues its important and timely work on modern crime realities with the release of this new report from its Crime Trends Working Group, titled "Better Crime Data, Better Crime Policy."   I received a emailed press release about the report this morning, and here it text from that email serving as a helpful summary:

Despite recent improvements, national crime data fall short of what the country needs to sufficiently understand, control, and prevent crime, the Council on Criminal Justice Crime Trends Working Group said today in a report outlining a roadmap for improvement.  Calling for urgent action, the report, Better Crime Data, Better Crime Policy, presents a set of recommendations to strengthen the nation’s crime data infrastructure and better equip policymakers with timely, accurate, and usable data essential to effectively address community violence and other crime. 

Composed of 16 expert producers and consumers of crime data from law enforcement, state and local government, public health, academia and the advocacy community, the Working Group said that unlike readily available data on inflation and unemployment trends, national crime data lag by many months.  That delay hinders government and community leaders as they seek to spot emerging crime issues and deploy appropriate interventions, a problem that has become more serious in recent years as the internet, social media, and other technologies have fostered the rapid spread of new types of crime.  

In addition, the lack of real-time national data — which crimes are rising, which are falling, and by how much — can distort public perceptions of trends and prompt changes to strategies and policies based on anecdote rather than evidence, the report said.... 

The Working Group proposed action in multiple areas by federal, state, and local agencies, focusing on improvements to the timeliness, accuracy, completeness, and usability of crime data. Key recommendations in the report include:  

  • In partnership with the FBI, the CDC, and other federal agencies, the Bureau of Justice Statistics (BJS) should publish a comprehensive annual compendium of crime in the U.S., starting in 2025, that simultaneously reports law enforcement and victimization survey data and includes cybercrime, hate crime, securities fraud, and other important types of crime. 
  • BJS should begin next year publishing monthly crime statistics from a nationally representative sample of cities, similar to how the Bureau of Labor Statistics releases employment statistics on the first Friday of every month. 
  • The FBI should develop a plan to increase the number of law enforcement agencies reporting to the National Incident-Based Reporting System (NIBRS) to cover 90% of the U.S. population by the end of 2025 and 98% by the end of 2027, matching the level of coverage prior to the switch to NIBRS. States not already reporting monthly should enact or strengthen laws requiring local law enforcement agencies to report NIBRS-compliant crime data to state UCR programs on a monthly basis. 
  • The CDC should improve the health surveillance systems that collect information on violent deaths and firearms assaults and injuries by directing the National Center for Health Statistics to develop a plan to address the systematic miscoding of firearms assaults and injuries in hospital discharge coding.
  • Congress should provide BJS with funds to establish a National Justice Data Analysis Center that would define national best practices for law enforcement agencies to visualize and share data, provide training and technical assistance to help agencies deploy data to improve crime analysis and prevention, and enhance crime trends data science. 

To implement its recommendations, the Working Group recommended that Congress increase BJS appropriations to $75 million for FY2025, scaling up to $93 million in FY2026. In addition, the Group made several one-time and annual funding recommendations for other federal agencies, including the FBI, the Bureau of Justice Assistance (BJA), and the Centers for Disease Control and Prevention (CDC). 

June 25, 2024 in National and State Crime Data, Who Sentences | Permalink | Comments (0)

Federal prosecutors finalize plea deal to resolve charges (and to enable release) of Julian Assange

This Washington Post article reports on a notable and unusual federal plea deal in the works for a notable and unusual federal defendant, and the full headline details the basics: "WikiLeaks founder Julian Assange expected to plead guilty to felony charge: After serving five years in a British prison, a new court filing indicates Assange is preparing to plead guilty to a single U.S. charge and will be allowed to return to his home country of Australia."  Here is how the article starts with links to some key documents:

Julian Assange, the founder of the anti-secrecy site WikiLeaks, has reached a tentative deal to plead guilty to one count of violating the Espionage Act for his role in obtaining and publishing classified military and diplomatic documents from 2009 to 2011, according to court filings.

The plea deal would end a long-running legal saga and a transatlantic tug-of-war that pitted national security against press freedom.

He is expected to be sentenced on Wednesday in the Northern Mariana Islands, according to a letter filed by the Justice Department in the remote U.S. jurisdiction Monday evening. He will then return to his home country of Australia, the letter says, indicating he will be sentenced to the 62 months he has already spent behind bars in a London prison.

A criminal information filed alongside the letter says Assange “knowingly and unlawfully conspired” with Chelsea Manning to “receive and obtain documents … connected with the national defense” and “communicate” that information to “persons not entitled to receive” it. Manning, then a young Army intelligence analyst in Iraq, was convicted of violating the Espionage Act and other laws at a court-martial in 2013.

“This period of our lives, I’m confident now, has come to an end,” his wife and attorney Stella Assange said in a video statement filmed last Wednesday and released after the court documents were filed. “Julian will be free.”

Assange, whose snow-white hair became recognizable worldwide, was a polarizing figure. Supporters saw him as a courageous journalist whistleblower of government misdeeds, but his detractors saw a pompous self-promoter interested primarily in fame and oblivious to the harm his leaks might cause.

A commentor here wonders about what could happen if the federal judge were to reject this plea deal. I doubt that is likely, but one never knows.

Also notable are news report that Assange's wife has already started discussing seeking a federal pardon for her husband. I believe Donald Trump talked about considering a pardon for Assage both while he was president and more recently on the campaign trail.

June 25, 2024 in Celebrity sentencings, Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (11)

June 24, 2024

Buckeye expedited clemency ideas now flowering even more robustly in the Garden State

Long-time readers shoudl be somewhat familiar with the extraordinary work of Governor Mike DeWine here in Ohio through the great Expedited Pardon Project.  I am, of course, biased in my praise for Ohio's EPP effort in part because The Ohio State University's Drug Enforcement and Policy Center (DEPC) has been playing a significant role helping the Governor's clemency work through this ground-breaking program, and we not long ago celebrated at OSU the many pardons that Gov DeWine has already granted.  I have in thsi space and elsehwhere asserted that other Governors should follow the lead and clemency achievements of Ohio Gov DeWine, and a few months ago I posted here about comments by New Jersey Governor Phil Murphy suggesting he was working on a new clemency initiative.

Against that backdrop, I was incredibly excited last week to be forwarded this official press release, fully headlined "Governor Murphy Launches Historic Clemency Initiative: Executive Order Includes Standards for Expedited Consideration and Establishes Advisory Board to Provide Objective Review of Pardons and Commutations."  Here is how the lengthy release gets started:

Governor Phil Murphy today outlined his plans to issue pardons and commutations using best practices that include expedited consideration for certain clemency applications.

Executive Order No. 362, which Governor Murphy signed today, sets out certain categories of pending or future clemency applications that will receive expedited review during the Murphy Administration. For example, individuals may receive expedited consideration for pardons for certain non-violent convictions if they have remained free from justice system involvement for sufficient time. Other examples of those receiving expedited consideration include individuals who are serving sentences that reflect an excessive trial penalty, and victims of domestic or sexual violence or sex trafficking who are incarcerated for committing a crime against the perpetrator. The fundamental goal underlying this initiative is to provide relief from inequities that have existed and been perpetuated in the criminal legal system.

The Executive Order also establishes a Clemency Advisory Board, which will be responsible for reviewing each clemency application and making recommendations to the Governor.  The board will be the first of its kind in state history and will ensure that the Governor’s decisions regarding pardons and commutations are informed by the advice of individuals with diverse experiences and expertise relating to criminal justice and clemency.

“As we celebrate Juneteenth and reflect on our nation’s ongoing journey toward racial justice for Black and Brown Americans, I am proud to sign this Executive Order to help address inequities and unfairness in our system of justice in New Jersey,” said Governor Murphy. “This new clemency initiative is a cornerstone of our Administration’s efforts to make New Jersey the State of Second Chances. Today, we pledge to take a responsible and equity-driven approach to pardons and commutations that will prioritize the most compelling cases.”

The full executive order includes all sorts of notable details about the reasons for and structure of this notable new clemency intiative.  And, excitingly, the Garden State effort grows beyong the Buckeye State model.  In Ohio, the expedited clemency process is only for pardon applicants, while in New Jersey it appears even persons seeking commutations while serving a prison term or while on supervision can apply.

Kudos to NJ Governor Murphy for finally attending to his clemency responsibilities (though I will note that Oho Gov DeWine got his program at the start of his tenure, rather than towards its close).  I hope the great ideas of expanded and expedited clemency programs continues to flower in more an more states.

June 24, 2024 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

After Rahimi, can Donald Trump legally possess a gun? How about Hunter Biden?

For criminal law practitioners, as well as for those who take constitutional gun rights seriously, the provision of federal criminal gun control that was upheld by the Supreme Court in US v. Rahimi, 18 USC § 922(g)(8) (basics here), is not really a matter of frequent concern.  As noted in this new Quick Facts publication from the US Sentencing Commission, the vast majority of federal criminal gun control prosecutions involve persons who "were convicted under 18 U.S.C. § 922(g) because of a prior felony conviction."  Of just over 8000 persons sentenced in federal court for illegally posessing a gun in Fiscal Year 2023, well over 7000 were in violation of federal 18 USC § 922(g)(1) for having a firearm after having "been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year."

Of course, just in the last few months, a couple of high profile individuals have "been convicted [of] a crime punishable by imprisonment for a term exceeding one year."  Because both former President Donald Trump and son-of-the-current-President Hunter Biden have now both been convicted of felonies, they would be committing a new federal felony crime if they now or in the future were to "possess ... any firearm or ammunition."  (There is perhaps an irony that one of Hunter Biden's felony convictions involves another different (suspect?) provision of 18 USC § 922(g), but he also was convicted of two other crimes that trigger the criminal gun possession prohibition of § 922(g)(1).)   So, to comply with federal statutory criminal law, Donald Trump and Hunter Biden should make sure they do not now or in the future posssess any firearm or ammunition. 

But what about their Second Amendment rights?  Notably, at least two circuit courts and a number of district courts have read the Supreme Court's landmark Bruen opinion to lead to the conclusion that the federal criminal felon-in-possession law is unconstitutional when applied to nonviolent, nondangerous offenders.  Both Donald Trump and Hunter Biden could surely make a claim that they are nonviolent, nondangerous offenders, so can they also claim they have a constitutional legal right to possess a gun regardless of federal statutory law? 

Of course, this past Friday, the Supreme Court in Rahimi explained how Second Amendment law is now supposed to work, and so Donald Trump and Hunter Biden (and their legal teams) have new guidance as to the scope and limits of their gun rights.  But, from my read of key language in Rahimi, I am still scratching my head on this important front.  Here, I believe, is much of the key operative language from the Court's Rahimi opinion:

Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms....   From the earliest days of the common law, firearm regulations have included provisions barring people from misusing weapons to harm or menace others....

Taken together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed....

While we do not suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse, see Heller, 554 U. S., at 626, we note that Section 922(g)(8) applies only once a court has found that the defendant “represents a credible threat to the physical safety” of another....

Heller never established a categorical rule that the Constitution prohibits regulations that forbid firearm possession in the home.  In fact, our opinion stated that many such prohibitions, like those on the possession of firearms by “felons and the mentally ill,” are “presumptively lawful.”...

Section 922(g)(8) ... presumes, like the surety laws before it, that the Second Amendment right may only be burdened once a defendant has been found to pose a credible threat to the physical safety of others.... [O]ur Nation’s tradition of firearm regulation distinguishes citizens who have been found to pose a credible threat to the physical safety of others from those who have not....  Our tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others....

Finally, in holding that Section 922(g)(8) is constitutional as applied to Rahimi, we reject the Government’s contention that Rahimi may be disarmed simply because he is not “responsible.” Brief for United States 6; see Tr. of Oral Arg. 8–11. “Responsible” is a vague term. It is unclear what such a rule would entail. Nor does such a line derive from our case law....

[W]e 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.

I do not believe Donald Trump or Hunter Biden "poses a clear threat of physical violence to another," and § 922(g)(1) notably serves to permanently disarm anyone with a felony conviction.  Further, the federal government has, since Bruen, generally argued for the constitutionality of 922(g)(1) based on the notion that only "responsible" individuals have Second Amendment rights.  The Rahimi court directly and expressly rejected that notion.  But still, as we saw before in Second Amendment cases like Heller and McDonald, the Court in the Rahimi seems to still embrace dicta that can be read to suggest that the very broad criminal prohibition set forth in 18 USC § 922(g)(1) is still constitutional.  

So, to repeat the question in the title of this post: After Rahimi, can Donald Trump legally possess a gun? How about Hunter Biden? 

June 24, 2024 in Collateral consequences, Offense Characteristics, Second Amendment issues, Who Sentences | Permalink | Comments (15)

US Supreme Court grants cert on seven new cases, none of which directly involve criminal law issues

The US Supreme Court, which is expected to finish issuing its final rulings of the current Term in the coming days, issued this new order list this morning.  The order list starts with eight GVRs, mostly as a follow-up to recent civil rulings.  (I expect in some additional forthcoming order lists we will be getting quite a number of GVRs following up all the recent SCOTUS criminal case action of the past couple weeks.)

The Supreme Court's latest order list has seven new certiorari grants, though it appears from a quick scan that none of them involve criminal law issues.  Though I am always bummed when the Justices do not add new criminal law cases to the SCOTUS docket, I am now going to be inclined to always view that reality as a reinforcement of my theory that the more conservative current Justices are somewhat fearful about where their originalist inclinations might take them in the constitutitional criminal procedure cases that used to be a mainstay of the Court's docket.  (I mused at some length on this front in this recent post.)  

By my count from this SCOTUSblog list, the Supeme Court now has granted cert in 23 cases for its next Term, and it seems only three of those cases are criminal cases.  Glossip, a high-profile capital case, seems sure to get a lot of attention when the start of the new Term approaches, and maybe a lot more criminal cases will be added to the Court's docket in the weeks and months to come.  But, based on current patterns, I fear the next SCOTUS Term could be quite the snoozer for criminal law fans.

Prior recent related post:

June 24, 2024 in Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

June 23, 2024

Helpful review of pending state constitutional litigation over LWOP sentencing for felony murder

This recent State Court Report entry provides a relatively short and quite helpful review of past debates and some present litigation surrounding felony murder.  The full headling of the piece serves as a useful summary: "State Supreme Courts May Abolish Life Without Parole For 'Felony Murder': People serving life in prison in Colorado, Michigan, and Pennsylvania for murder — even though they never meant to kill anyone — are arguing their sentences are unconstitutionally cruel."  I recommend the piece in full for full context, and here are some excerpts (with links from the original):

[T]he felony murder rule, long-ago abolished in England but still alive in 48 states, has persisted as one of American criminal law’s cruelest features.  Shattering norms of criminal liability, felony murder severely punishes people for deaths that they neither caused nor intended to cause, but that in some way flowed from their actions, with the connection often tenuous to the point of nonexistent....

A recent Pulitzer Prize-winning New Yorker article, for example, tells the story of a man who was miles away and handcuffed when his accomplice in some car burglaries accidentally struck and killed two cyclists as he fled from police. Yet the handcuffed man was convicted of murder and sentenced to mandatory life without parole. His obvious and undisputed distance from the killings — both geographically and with regard to his intent — reduced neither his charges nor, given its mandatory nature, his sentence....

Even more than other facets of criminal law, the rule targets the vulnerable and historically marginalized, exacerbating already deep inequities in our criminal legal system. Felony murder yields massive racial disparities, and is often wielded against people who are suffering from addiction (such as if they share drugs with a friend who overdoses), survivors of domestic abuse (including when women are coerced into criminal conduct by abusive men), and young people (who are often punished for the conduct of adults and authority figures or their friends)....

In the coming months, Colorado, Michigan, and Pennsylvania will decide [state constitutional claims] that challenge life without parole sentences for felony murder.

In Pennsylvania, 70 percent of the more than 1,100 people serving life without parole for felony murder are Black.  One of them, Derek Lee, has petitioned the Pennsylvania Supreme Court to rule that his mandatory life sentence violates the state constitution’s ban on “cruel” punishments.  Lee argues that Pennsylvania’s constitution must be construed both independently from and more broadly than the Eighth Amendment, and that the complete disconnect between felony murder and any legitimate penological purpose renders his life sentence unconstitutional.  In amicus briefings, his claim has unusually broad support from, among others, former prosecutors, the Philadelphia District Attorney’s Office, Pennsylvania Gov. Josh Shapiro, and former state Department of Corrections officials who argue that “life without parole sentences for felony murders are financially insensible” and that “many or even most lifers could be released without incident to their communities.”

Meanwhile, another man convicted of felony murder has made similar arguments to the Colorado Supreme Court, with one key addition.  In 2018, when Wayne Sellers was convicted, state law mandated a life without parole sentence.  But Colorado changed the law in 2021, and reduced the sentence for future felony murder convictions to a range of 16 to 48 years — affording both greater leniency and sentencing discretion.  The change did not apply to Sellers, who now asks the state high court to rule that his sentence is unconstitutional.  During oral arguments [last week], some justices appeared hesitant to “substitute [their] judgment for the legislature[’s]” — despite the court’s previous acknowledgment that sentencing reforms are a key indicator of the state’s evolving standards of decency that are central to a constitutional excessive punishment claim.

Finally, the Michigan Supreme Court — which recently surpassed federal case law to prohibit mandatory life without parole sentences for 18 year olds — has asked for briefs on whether “mandatory life without parole for felony murder” violates the state constitutional ban on cruel or unusual punishments.  That case is brought by Edwin Langston, a now-elderly man who in 1976 was held responsible for a murder committed by someone else during a robbery, and for which Langston was not even present.

There remain strong arguments that the Eighth Amendment forbids consigning people to die in prison based on felony murder convictions, even if the current U.S. Supreme Court majority is unlikely to embrace them.  But state constitutional law provides a path to justice that doesn’t require reconciling inconsistent and flawed precedent upholding extreme prison terms for modest crimes.  State supreme courts that take their constitutional obligations seriously should do what both common decency and the law demands: ban life without parole for felony murder.

June 23, 2024 in Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)