Sentencing Law and Policy

Highlighting an era of federal sentencing with "hits" from the Federal Sentencing Reporter

The visionary work of founding editors Daniel J. Freed and Marc L. Miller launched the Federal Sentencing Reporter back in summer 1988 when the federal sentencing guidelines were just starting to be used in federal courts and when the very constitutionality of the Sentencing Reform Act coming under Supreme Court review.  Three dozen years later, the current FSR managing editors (Steve Chanenson and I) have wrapped up FSR's Volume 36 with a republishing of past FSR articles organized around a “greatest hits” theme in a super-sized issue titled "Four Decades of the Great American Sentencing Songbook." 

For both old and new followers of federal sentencing laws and practice, I am hopeful this collection can serve as an invogorating reminder of all the ideas and issues wrapped up in modern sentencing reform history.  And this issue also captures a transition moment in FSR history as Steve and I explain in our short introductory essay.  Here are excerpts from its start and end:

Sentencing is the soundtrack of the criminal law. Sometimes it garners all the attention, starting at the beginning of a criminal prosecution as lawyers and the general public consider what punishments are possible and likely based on alleged wrongdoing.  When other issues garner attention, sentencing concerns are always part of the backbeat — always humming in the minds of criminal justice actors, even if in the background — setting the atmosphere for action in and out of the courtroom.

With this issue closing out volume 36 of the Federal Sentencing Reporter, the managing editors are in the mood for reflection.  This reflective mood is inspired by a coming change in FSR operations.  Since its founding in 1988, the journal has been ably published by the University of California Press, primarily in partnership with the Vera Institute of Justice.  Now, starting with the next volume, FSR will have a new publisher as part of a new arrangement with The Ohio State University, which stepped into Vera’s shoes at the start of this calendar year.  Like all transitions, this presents an opportunity for taking stock.

This issue of FSR looks back — incompletely, by necessity — at the transformative decades of federal sentencing after the Sentencing Reform Act and three dozen years of FSR reporting on the broader landscape of sentencing and punishment....

We have organized the reprinted pieces that follow around a kind of FSR’s "greatest hits" theme, in part to connote and acknowledge that a wide range of people, seen and unseen, have contributed in myriad ways to the long-running Federal Sentencing Reporter band.  As the first reprinted pieces highlight, our show got off to an extraordinary start thanks to the visionary work of founding editors Daniel J. Freed and Marc L. Miller.  For more than a third of a century, our exceptional contributors have kept the FSR beat alive, and we are confident the journal will continue to thrive for decades to come.  We hope you enjoy this push of the replay button for the final FSR issue published by the wonderful producers of this sentencing experience at the University of California Press.

Noting recent clemency grants and broader clemency record of Michigan Gov Whitmer

This new local press article, headlined "Whitmer grants clemency to 5, including two first-degree murder convicts, but not DeLisle," caught my attention in part because the Governor of Michigan is among a number of prominent Democratic officials getting extra attention amid debate over President Joe Biden's seemingly uncertain status as a presidential candidate.  Helpfully, this new press piece discusses Gov Whitmer's recent clemency work in the context of broader clemency records in Michigan:

Michigan Gov. Gretchen Whitmer has pardoned two individuals and commuted the sentences of three others, including two inmates who were convicted of first-degree murder and would otherwise spend the rest of their lives in prison.... 

In a Wednesday statement, Whitmer said the clemency designations were based on recommendations from the Michigan Parole Board.  "By granting clemency to five individuals who have taken accountability for their actions, we will offer them a fair shot to build a good life in Michigan," Whitmer said.

Both the governor and Lt. Gov. Garlin Gilchrist said the clemency decisions are part of an effort to give people in the criminal justice system a second chance. They noted other measures include recent expansions of "Clean Slate" legislation meant to wipe nonviolent offenses off people's records and intervention programs in the court system to connect people to mental health aid, substance abuse support and job resources....

Hundreds of individuals request a pardon or commutation each year through applications submitted to the Michigan Parole Board, which reviews those applications, sometimes grants hearings and then makes a recommendation to the governor. The governor grants several of the requests each year.  In 2023 alone, 521 individuals submitted applications seeking commutations.

Since becoming governor in 2019 and with Wednesday's numbers included, Whitmer has commuted the sentences of 35 inmates, including seven who were convicted of first-degree murder, and three with second-degree murder convictions, according to Michigan Department of Corrections records. In 2022, Whitmer also granted pardons to four people who'd already served their sentences for nonviolent offenses.

By comparison, Democratic former Gov. Jennifer Granholm granted commutations to 180 prisoners from 2003-11, and Republican former Gov. Rick Snyder commuted 32 sentences from 2011-18.  Overall, Michigan governors have commuted the sentences of 379 prisoners since 1969, 162 of whom had been convicted of first-degree murder, according to Michigan Department of Corrections records. Clemency was granted to 95 inmates for medical reasons.

Still more heat and less homicides in the United States as 2024 enters its second half

Though much of the US continues to experience high tempertures as we head into the second half of 2024, everyone should be heartened that the rising temperatures have not dramatically cooled the extraordinary downward homicide trend in the United States.   As readers may recall from prior posts, 2023 brought a considerable (perhaps historic) decline in homicides in the US compared to 2022 (which saw a small decline in homicides after very significant increases in homicides throughout the US in 2020 and 2021).  My check today at the latest AH Datalytics' collection of homicide data for 2024 from 250+ US cities shows now an 17.8% cumulative decline(!) in murders across the nation's cities through roughly first half of 2024. 

I have said before that I doubt criminologists and others have a clear and certain story for why we are seeing this historic  homicide declines, but I will continue to note these trends whie hoping they continue.  And, as one who focuses on sentencing law and practice, I will keep noting, as I did in a prior post, that the 2023 and 2024 declines in homicide come at a time of relatively low use of the death penalty and relatively lower rates of incarceration by US standards.  

As I always stress in this posts, these remarkable homicide trends could change in the weeks and months and years ahead.  But, for now, it is great to see 2024 remains on pace to break whatever yearly homicide reduction records were set in 2023.  And, if these trends somehow continue, many parts of the US might soon reach historic per capital lows in homicides.  

Shouldn't not being sentenced based on acquitted conduct be one "of the benefits of Trial by Jury"?

In many years past, I have leaned into feedom and liberty themes for a July 4th post (see partial round up here).  But last year's July 4th post focused on acquitted conduct sentencing, and I cannot resist returning to the topic after an notable year on this front. 

As a reminder of why this is a fitting July 4th topic, recall that in the Declaration of Independence, approved 248 years ago today, the founders of this Nation complained of a "long train of abuses and usurpations" by "the present King of Great Britain," which included "depriving us in many cases, of the benefits of Trial by Jury."  As suggested in the title of this post, I consider being sentenced more severely by a judge on the basis of conduct that led to a jury acquittal at trial to be a deprivation of one "of the benefits of Trial by Jury."   Consequently, I view acquitted conduct sentencing to be inconsistent with key principles stressed by our Nation's founders and at our Nation's founding.

Notably, this portion of our Declaration of Independence was stressed in two recent Supreme Court constitutional rulings.  In Erlinger v. US, No. 23-370 (S. Ct. June 21, 2024) (available here), Justice Gorsuch writing for the Court on behalf of six Justices cited this provision: "Prominent among the reasons colonists cited in the Declaration of Independence for their break with Great Britain was the fact Parliament and the Crown had 'depriv[ed] [them] in many cases, of the benefits of Trial by Jury.' ¶ 20."  And in SEC v. Jarkesy, No. 22–859 (S. Ct. June 27, 2024) (available here), Chief Justice Roberts writing for the Court on behalf of a different group of six Justices also cited this provision:  "And when the English continued to try Americans without juries, the Founders cited the practice as a justification for severing our ties to England. See Declaration of Independence ¶ 20."

I fear that these two recent constitutional rulings, vidicating the Sixth and Seventh Amendments' jury trial rights, do not ensure or even increase the likelihood that the Supreme Court will soon take up and reverse jurisprudence permitting acquitted conduct sentencing.  But they do give me just a little more hope that, as some point in the future, a time will come in which courts recognize and vindicate the reality that acquitted conduct sentencing is inconsistent with our founding principles and our commitment to democratic self-governance.

Thankfully, this past year has seen a (small) step forward in the form of a new amendment to the federal sentencing guidelines which provides that the guideline range can no longer be based on "conduct for which the defendant was criminally charged and acquitted in federal court."  Though an incomplete remedy and many decades too late, I am still pleased that the US Sentencing Commission has partially restored one "of the benefits of Trial by Jury" that our founders went to war to vindicate.  I am also encouraged that Congress continues to vote in strong support of the "Prohibiting Punishment of Acquitted Conduct Act," though this bill disappointingly has not yet make it through the full legislative process.  

In the end, especially on a day like today, I remain drawn to the core notion that our sentencing laws in general, and acquitted conduct sentencing rules in particular, are matters fundamentally about our national and constitutional values.  I hope to see our founding values soundly reflected in these laws and rules.

While we were SCOTUSing: rounding up some non-Supreme Court sentencing stories

I have been pretty consumed the last couple weeks just trying to keep up with all the notable criminal justice stories surrounding the end of the Supreme Court's Term.  But the criminal justice system keep chugging on elsewhere, and here is a partial round-up of some stories and commentaries from the last few weeks that seemed worth flagging:

From the AP, "Child rapists can be sentenced to death in Tennessee starting July 1"

From the AP, "Hearing set to determine if a Missouri death row inmate is innocent. His execution is a month later"

From Capital B, "The Growing Crisis of Heatwave Deaths in America’s Prisons"

From the Carolina Journal, "NC Chamber polling says voters want criminal justice reforms"

From CBS News, "Biden pardons LGBTQ+ service members convicted for sexual orientation"

From The Guardian, "Will it stay or will it go? California voters decide fate of ‘momentous’ criminal justice law"

From NPR, "What to know about Louisiana's new surgical castration law"

From the Providence Journal, "'Time to release him': RI Supreme Court rules Mario’s Law applies to its namesake."

From Radio IQ, "Virginia Sentencing Commission debates 'possibly unconstitutional’ post-release system"

From Reason.com, "Republicans Upset by Trump's Conviction Should Embrace Criminal Justice Reform"

From the Salem Reporter, "Governor revokes over 20 commuted prison sentences from Salem area"

From the San Diego Union-Tribune, "As homicides plummet, experts look to the pandemic for answers"

From the Seattle Times, "After reforms, racial inequity in WA 3-strikes law remains, report finds"

From the Tallahassee Democrat, "After a flurry of executions during his presidential campaign, DeSantis now pauses"

From the Tennessee Lookout, "How CoreCivic stands to benefit as Tennessee pushes harsher prison sentences"

From WFTS (Tamba Bay), "Pay to stay: State law charging inmates for prison cells being applied differently from county to county"

Hoping admin law gurus will help us all understand what Loper Bright might mean for federal sentencing law

More than 30 years ago, I had the great fortune to take administrative law in law school from then-Judge Stephen Breyer.  Though I am sure I learned a lot in that admin law course, what I most remember learning is that I did not want to practice admin law.  And yet, ironically I suppose, a good portion of my professional career has been devoted to considering (and sometimes criticizing) the work of the only federal administrative agency localed in the judicial branch, the US Sentencing Commission.  Moreover, especially since the First Step Act created all sorts of new provisions to be applied to federal prisoners, I have been giving ever more attention to the work of the administrative agency known as the Federal Bureau of Prisons (which is within the bigger administrative agency known as the US Department of Justice).  I am not sure it is surprising as much as it is intriguing that a whole lot of federal sentencing and correections law emerge from the actions of federal administrative agencies.

This post's preamble is meant to tee up the isssue flagged in the title, as the Supreme Court last week issued a significant administrative law ruling in Loper Bright Enterprises v. Raimondo, No. 22-451, (S. Ct. June 28, 2024) (available here), wherein the Court formally eliminated so-called Chevron deference in the consideration of challenges to actions by adminstrative agencies. Here is the key closing statement of the ruling in the case from Chief Judge Roberts' opinion for the Court:

Chevron is overruled.  Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.  Careful attention to the judgment of the Executive Branch may help inform that inquiry.  And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it.  But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.

So how does this significant ruling impact actions by the US Sentencing Commission and the Bureau of Prisons?  Candidly, I do not know.  I have already received a number of emails from a number of folks wondering if Loper Bright might be a federal sentencing game-changer in some respect, and I am always inclined to think probably not.  But as flagged in a post here a couple years ago, the Supreme Court's ruling in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), recast for federal courts "the deference they give to agencies ... in construing agency regulations" and that ruling has rippled in uneven and unpredictable ways through circuit decisions about how Guideline commentary can inform application of certain USSC Guidelines.  And, writing here in Forbes, Walter Pavlo notes on-going litigation over BOP's implementation of the First Step Act and concludes with this forecast: "The Chevron ruling will certainly prompt more lawsuits against the BOP in the coming months as prisoners will simply be asking for what Congress intended them to have ... less time in prison."

Adding to the intrigue, I suppose, is the fact that the Department of Justice (an agency) is currently arguing in courts nationwide that the US Sentencing Commission (an agency) misinterpreted the Sentencing Reform Act and the First Step Act when it recently amended USSG §1B1.13, Reduction in Term of Imprisonment Under 18 U.S.C. § 3582(c)(1)(A) (Policy Statement), to provide in subsection (b)(6) that, when "a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law ... may be considered in determining whether the defendant presents an extraordinary and compelling reason" to potentially permit a reduction in his imprisonment term.   Notably, the SRA expressly delegates to the USSC the responsibility to "describe what should be considered extraordinary and compelling reasons for sentence reduction," 28 USC § 994(t), and so I would think Loper Bright still supports courts showing "respect [to] the delegation."  But I have a feeling DOJ will not read Loper Bright to end its legal attack on the amended guideline.

There is on-going litigation before a number of circuits concerning this amended USSC's policy statement, and it will be interesting to see if circuit judges rely heavily or at all on Loper Bright as they sort through the claim by DOJ that the USSC actions were not kosher.  And if DOJ prevails and/or Loper Bright supports efforts to assail the US Sentencing Guidelines on statutory grounds, I wonder whether defendants and defense attorneys might be able to champion other statutory language in 28 USC § 994 to assail other Guidelines.  For example, I have long thought many Guidelines — and particularly key provisions of the fraud and drug guidelines — fail to comply with 994(j), wherein Congress provided that the "Commission shall insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense."  Could and should whole guidelines or particular subprovisions be attacked by defendants whenever in non-violent, low level cases these provisions do not recommend "imposing a sentence other than imprisonment"? 

My sense is that it will take quite a while before we fully understand the impacts of the Loper Bright ruling in awide array of legal arenas.  I am just starting early with my general call that the folks smart enough to really understand administrative law make sure not to forget to helping all of us working through the possible federal criminal law echoes.

Reviewing cert denial statements in criminal justice cases from the latest SCOTUS order list

As noted in a prior post, the Supreme Court this morning via this order list had a lot of GVRs, a few vert grants, and finally a bunch of comments on cert denials.  Four of the six cases with those comments involved criminal justice issues, which I will quickly recap:

Denial of cert in Price v. Montgomery County prompts Justice Sotomayor to issue a statement questioning whether "absolute immunity [should be] available under §1983 when, as here, a prosecutor knowingly destroys exculpatory evidence and  defies a court order."  She explains ways to address prosecutorial misconduct and suggests that if "this is what absolute prosecutorial immunity protects, the Court may need to step in to ensure that the doctrine does not exceed its 'quite sparing; bounds." 

Denial of cert in McCrory v. Alabama prompts Justice Sotomayor to issue a statement questioning remedies for when there are "convictions resting on forensic evidence later repudiated by the scientific community."  She does so in a case in which "Charles M. McCrory was convicted of murder in 1985 based on forensic bitemark testimony that has now been roundly condemned by the scientific community and retracted by the expert who introduced it at his trial."  She  concludes her 13-page statement this way:

I vote to deny this petition because the constitutional question McCrory raises has not yet percolated sufficiently in the lower courts to merit this Court’s review. There is no reason, however, for state legislatures or Congress to wait for this Court before addressing wrongful convictions that rest on repudiated forensic testimony.

Denial of cert in King v. Emmons prompts Justice Jackson to dissent, joined by Justice Sotomayor, in a capital case in which "a Georgia prosecutor struck every Black woman and all but two Black men from a jury pool."  The end of the 10-page dissent concludes with Justice Jackson stating she "would summarily reverse the Court of Appeals’ erroneous application of deference in upholding the state court’s decision and remand for reconsideration of King’s Batson claim without the deference AEDPA otherwise requires."

Denial of cert in Bassett v. Arizona prompts Justice Sotomayor to dissent, joined by Justices Kagan and Jackson, in a case involving sentencing of a juvenile to a mandatory LWOP term.  The dissent contends that "Arizona advances three arguments for why Bassett did, in fact, receive all the discretionary process required by Miller....  Each runs contrary to Miller’s clear command." Consequently, after running through the Arizona argument, this dissent concludes by stating that "[b]ecause the Arizona Supreme Court’s decision departed from this Court’s established precedents, [she] would grant the petition for certiorari and summarily reverse the judgment below." 

New York state sentencing of former Prez Trump delayed until September 18, 2024

As reported in this Fox News piece, "Judge Juan Merchan has delayed former President Trump's sentencing in New York v. Trump to September, after requests from the presumptive Republican nominee to do so, and no opposition from Manhattan District Attorney Alvin Bragg." Here is more:

Trump on Monday moved to overturn his criminal conviction in the Manhattan case after the U.S. Supreme Court ruled that a former president has substantial immunity for official acts committed while in office. He also requested to delay his sentencing, which was set for July 11 — just days before the Republican National Convention where he is set to be formally nominated the 2024 GOP presidential nominee.

Bragg, on Tuesday morning, said Trump's request to toss the verdict was without merit, but did not oppose the request to delay sentencing. Merchan on Tuesday afternoon delayed Trump's sentencing date to Sept. 18 at 10:00 a.m.

"The July 11, 2024, sentencing date is therefore vacated. The Court’s decision will be rendered off-calendar on September 6, 2024, and the matter is adjourned to September 18, 2024, at 10:00 AM for the imposition of sentence, if such is still necessary, or other proceedings," Merchan wrote in a letter to Trump attorneys and New York prosecutors.

US Sentencing Commission notices "Public Hearing on Retroactivity" for its proposed 2024 guideline amendments

As detailed in this official notice, the United States Sentencing Commission has now announced "a public hearing is scheduled for Monday, July 15, 2024 from 9:00 am–12:15 pm (EDT)."  Here is more, with helpful links from the USSC:

The purpose of the public hearing is for the Commission to gather testimony from invited witnesses concerning whether to designate as retroactive certain 2024 guideline amendments relating to acquitted conduct, firearms, and drug offenses."...

The Commission received public comment on retroactive application and is currently accepting reply comment. Written reply comments, which may only respond to issues raised during the original comment period, should be received by the Commission not later than July 22, 2024. You may submit written reply comments through the Public Comment Submission Portal.

The Commission also published an analysis of the impact of certain 2024 amendments if made retroactive. Learn more.

Especially because the number of cases potentially impacted by guideline retroactivity this year seem to be pretty modest (particularly as compared to guideine reforms made last year), I am inclined to indulge my usual intuition that all guidelines reforms ought to be made retroactive on some terms.  After all, if and when an expert commissions votes to change sentencing rules for the better, it makes sense to me that those new rules ought to be presumptively retroactive subject to case-specific review of why particular prisoners ought not get a benefit from retroactivity.

Surpeme Court grants cert on First Step resentencing, GVRs gun issues, and lots of statements in (final?) order list

I am already way, way behind on my Supreme Court reading, and the Justices this morning via this order list gave us all another 53 pages of SCOTUS copy to process.  As is common for an end-of-term order list, this one starts with a bunch of GVRs (cert "granted," judgment "vacated," case "remanded") based on notable recent rulings, then follows with a few grants and then a bunch of comments on cert denials. 

I saw a big bunch of Erlinger remands along with a number of Loper Bright ones and a few based on Fischer and Diaz.  The most notable of the set, though, are the many Rahimi remands in an array of cases raising Second Amendment challenges to various application of federal criminal gun possession prohibitions under 18 USC 922(g).  In particular, it seems SCOTUS has GVRed all the felon-in-possession cases that the US Solicitor General suggested be taken up right away in light of Rahimi.  I am not really surprised the Justcies are content to kick federal felon-in-possession cases down the road, but it simply ensure a lot more legal churn in lower courts (and perhaps a lot more people unconstitutonally prosecuted) as the Justice go off on their summer vacation and the rest of us try to read Rahimi tea leaves.  There is little doubt in my mind that the Justices will have to resolve the constitutionality of 922(g)(1) sooner or later, but they ultimately get to decided just when and how while the rest of use deal with the legal uncertainty.

But I suppose I cannot be too grumpy at the Justices because, in this same order list, they did grant cert (and consolidate) two cases involving the application of the First Step Act.  Specifically, as explained in this cert petition in one of the cases, the issue taken up by SCOTUS in the new cases of Duffey and Hewitt is:

Whether the First Step Act’s sentencing reduction provisions apply to a defendant originally sentenced before the First Step Act’s enactment when that original sentence is judicially vacated and the defendant is resentenced to a new term of imprisonment after the First Step Act’s enactment.

Last but certainly not least, the lengthy order lists concludes with statements or dissents in a half-dozen cases in which cert was denied authored by a handful of Justices.  A number of these cases are criminal matters of note, so I will cover some of that action in a future post. Whew.

Effective review of prospects and challenges of sentence reductions for women sexually abused by guards

Writing at Bolts, Piper French has this legnthy review of the issues surrounding efforts by women in federal prison who have been sexually abused to secure compassionate release.  The piece is fully titled “'What’s More Extraordinary and Compelling?': Women who suffered sexual abuse at the hands of guards at a notorious federal prison in California are now seeking compassionate release."  I recommend the article in full, and here are excerpts:

It’s difficult to imagine a more serious abuse of power than a prison guard who preys on a person whose every action he already controls — her communication with the outside world, her visits with her family; her access to food, supplies, showers, medical care.  Federal prison officials allowed this type of abuse to go on unchecked for years.  Now that the story has broken open, the litigation, prosecutions, and efforts to establish broader federal oversight are really attempts to answer one central question: What does an appropriate remedy look like? 

Lately, lawyers representing the survivors are trying a novel strategy: compassionate release.  The mechanism, generally conceived of as a last-resort option for dying or medically incapacitated prisoners, is for the first time being considered as a reparative measure for women who were sexually abused while in federal custody. 

“We thought, what’s more extraordinary and compelling, which is the standard for compassionate release, than being sexually abused by prison guards after your sentence has been imposed?” said Shanna Rifkin, deputy general counsel for Families Against Mandatory Minimums (FAMM), who is spearheading the effort.  “No federal judge sentences people to be sexually abused in prison.” 

FAMM and the pro bono lawyers working with them have helped secure compassionate release for 17 former inhabitants of FCI Dublin thus far, and they’re evaluating 95 additional requests for legal aid from women formerly held at the facility.  But seeking this remedy has come with its own challenges — ones that underscore precisely why it’s so difficult to eradicate sexual violence in prison. 

Notable (and timely) concurrence assailing uncharged "relevant conduct" federal sentencing

A helpful colleague made sure I did not miss a notable opinion in a Seventh Circuit case handed down late last week.  The opinion for the court in US v. Brasher, No. 23-1180 (7th Cir. June 28, 2024) (available here), succinctly notes the key issues and disposition of the case:

This appeal asks us to hold that some of Bernell Brasher’s past conduct bore too attenuated a link to his offense of conviction to qualify as relevant conduct at sentencing. But Brasher never raised that issue below, so we review here for plain error. Finding no such error, we affirm.

What makes this case blogworthy in an extended concurring opinion by Judge Jackson-Akiwumi which starts and ends this way:

I join the majority opinion because it applies our circuit’s current law on relevant conduct to Bernell Brasher’s case, but I write separately to highlight what I view as an unfortunate devolution in our circuit’s handling of relevant conduct altogether. By watering down our standard for what district courts must do to ensure uncharged conduct is sufficiently related to conduct for which a defendant is convicted, we further increase the power of the government and the courts to punish individuals for conduct for which the government did not attain an indictment or conviction. Sentencing based on relevant conduct is a constitutionally dubious proposition on its own, but our circuit’s weakened standard only exacerbates the risk of a constitutional violation. It’s time we correct course....

In closing, I join the chorus of critics who have explained that sentencing a defendant based on uncharged conduct is suspect as both a constitutional and policy matter.  The United States Sentencing Commission has the authority to address these issues, and it should.  Until then, our circuit should ensure that our rules and standards are robust enough to prevent constitutional violations wherever possible. The Duarte rule did that. We should find our way back to it.

I call this opinion timely for two reasons: (1) the US Sentencing Commission is actively accepting comments on its priorities for the coming year, and Judge Jackson-Akiwumi's opinion astutely suggests uncharged conduct sentencing merits attention, and (2) Donald Trump is scheduled to be sentenced in NY state court in 10 days, and I keep thinking about what the prosecutor might argue, and what the sentencing judge might consider, to be proper aggravating uncharged conduct at that historic sentencing.

Supreme Court rules, 6-3, that a former Prez must "have some immunity from criminal prosecution for official acts during his tenure in office"

The Supreme Court finished up quite a notable Term with a lengthy and divided opinion on criminal justice immunity for the US President.  The full ruling with all the opinion in Trump v. US, No. 23–939 (S. Ct. July 1, 2024) (available here), I believe, is the longest of the Term checking in at 119 total pages. Here is the line up of opinions:

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

Here is the brief start of Chief Justice Roberts' opinion for the Court, as well as a couple of key paragraphs fromt the start and finish of his 43-page majority opinion:

This case concerns the federal indictment of a former President of the United States for conduct alleged to involve official acts during his tenure in office. We consider the scope of a President’s immunity from criminal prosecution....

We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office.  At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute.  As for his remaining official actions, he is also entitled to immunity.  At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient....

The President enjoys no immunity for his unofficial acts, and not everything the President does is official.  The President is not above the law.  But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution.  And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive.  The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.  That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.

The concurring opinions of Justices Thomas and Barrett add nuance to their decisions to join the Court's opinion.  And Justice Sotomayor provides the chief dissent, which gets started this way:

Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President, ante, at 3, 13, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.

DPIC releases new report focused on "How the U.S. Electoral Process Increases the Arbitrariness of the Death Penalty"

Via email, I learned that this morning the Death Penalty Information Center release this big report titled "Lethal Election: How the U.S. Electoral Process Increases the Arbitrariness of the Death Penalty."   This DPIC press release about the report provides this summary: "The Report uses new data and analysis on appellate rulings and grants of clemency, as well as individual stories and case studies from across the country, to reveal how electoral politcs distort the fairness and accuracy of capital punishment, and how decreasing public support for the death penalty is changing the picture." 

This DPIC report webpage provides some videos and other supplemental materials.  And the full 60+-page report begins with an "Executive Summary: Key Finding":

Elected supreme court justices in Georgia, North Carolina, and Ohio are twice as likely to affirm death penalty cases during an election year than in any other year.  This effect is statistically significant when controlling for the number of cases each year.

Changing public opinion means that zealous support for the death penalty is no longer a litmus test for elected officials in many death penalty jurisdictions.  Today’s elections feature viable candidates who criticize use of the death penalty and pledge reforms or even non-use, reflecting the significant decline in public support for the death penalty.

Elected governors were more likely to grant clemency in the past when they did not face voters in an upcoming election.  Concerns about voter “backlash” have eased today with declining public support and low numbers of new death sentences and executions, and have led to an increased number of prisoners benefiting from clemency grants, especially mass grants, in recent years.

Reviewing some reviews of the impact of SCOTUS Fischer ruling on Jan 6 prosecutions

I have already seen a handful of notable discussions of how the Supreme Court's limiting interpretation of a federal obstruction statute in Fischer v. US, No. 23-55 (S. Ct. June 28, 2024) (available here), may impact a host of federal prosecutions emerging from the January 6 riot at the US Capitol.  Here is just a partial round-up of some of these pieces:

From CBS News, "How will the Supreme Court's Fischer ruling impact Jan. 6 cases?"

From The Independent, "‘The decision will not have tremendous significance’: Why SCOTUS’ Jan. 6 ruling will only impact a handful of rioters"

From Just Security, "The Limited Effects of Fischer: DOJ Data Reveals Supreme Court’s Narrowing of Jan. 6th Obstruction Charges Will Have Minimal Impact"

From the Washington Post, "What’s next for the Jan. 6 riot probe after Supreme Court ruling?"

The Just Security piece authored by Ryan Goodman, Mary B. McCord and Andrew Weissmann provides the most extensive and intricate analysis of Fischer's likely impact on Jan 6 defendants. Here is part of the start of its analysis near the start of the piece: 

The upshot is that the decision means little in terms of the pending charges against former President Donald Trump.  It means potentially more to a subset of the January 6th defendants who were charged under this statute, who comprise only a fraction -– 24% -– of the existing January 6th defendants.  And even within that 24%, in the great majority of cases that have resulted in a guilty verdict (by plea or after trial) for a 1512(c)(2) offense, the defendant was also found guilty of one or more other felonies (62%).  Further, as to the 71 defendants who have been charged under Section 1512(c)(2) and are still awaiting trial, all of them are charged with crimes in addition to 1512(c)(2), and a majority are charged with one or more other felonies.  A perfect illustration of this is the three defendants whose cases led to the Supreme Court taking up the 1512(c)(2) statutory interpretation issue: Joseph Fischer, Edward Lang, and Garrett Miller.  All three were charged with several other felonies including assaulting law enforcement officers. And even for the small percentage of defendants who may now be subject to resentencing post-Fischer, judges can still take into account the underlying conduct that formed the basis for the 1512(c)(2) violation.