Sentencing Law and Policy

"Imperfect Insanity and Diminished Responsibility"

The title of this post is the title of this new paper authored by E. Lea Johnston now available via SSRN. Here is its abstract:

Insanity’s status as an all-or-nothing excuse results in the disproportionate punishment of individuals whose mental disorders significantly impaired, but did not obliterate, their capacities for criminal responsibility.  Prohibiting the trier of fact from considering impairment that does not meet the narrow definition of insanity contradicts commonly held intuitions about mental abnormality and gradations of responsibility.  It results in systemic over-punishment, juror frustration, and, at times, arbitrary verdicts as triers of fact attempt to better apportion liability to blameworthiness.

This Article proposes a generic partial excuse of Diminished Responsibility from Mental Disability, to be asserted as an affirmative defense at the option of the defendant.  The excuse would be expressed as a fourth verdict, in addition to the traditional forms of guilty, not guilty, and not guilty by reason of insanity.  The partial excuse would recognize that the capabilities necessary for criminal responsibility exist along a spectrum.  It would respond to the widespread belief that mental dysfunction may be so destructive of rationality that it merits a reduction in liability, even when not rising to the level of insanity.  The verdict would render our justice system more capable of accurately expressing community condemnation and increase its legitimacy.

Evidence suggests that jurors would thoughtfully apply a partial responsibility verdict and would experience greater confidence and satisfaction than in the current all-or-nothing system.  Outside the United States, numerous countries recognize partial responsibility for mental impairments, demonstrating the feasibility and benefits of the partial excuse.  Because a diminished responsibility verdict would mitigate a defendant’s sentence, its operation over time should reduce the mass incarceration and unjustified suffering of those with mental disabilities.  The verdict could also connect defendants with treatment necessary for their clinical stability and well-being, as it has done in other countries.

Over the decades, several prominent scholars have offered proposals for partial excuses for diminished responsibility. None gained legislative traction.  This Article’s proposal differs from prior proposals in four key respects.  First, it limits its purview to rationality and volitional impairments from mental disabilities, a traditionally recognized form of diminished blameworthiness.  Second, to be workable and attractive to states, this proposal recommends that states draw definitions of partial responsibility from existing statutory frameworks, namely contemporary insanity and Guilty But Mentally Ill standards.  The latter, present in about a dozen states, permit juries to find a defendant guilty but highlight their mental illness; however, these verdicts carry no necessary sentencing or treatment consequences. Deriving a partial responsibility standard from existing statutes should carry greater local legitimacy than wholly new language. Third, in light of the realities of mental disorder and its lived experience, this proposal does not advocate for withholding mitigation from defendants who contributed to their impairment through failure to comply with medical directives. Finally, the proposal draws upon foreign partial responsibility statutes to glean possible sentencing and treatment consequences that could accompany the verdict and respond to any public safety threat.

Detailed case processing data in new BJS report on "Federal Justice Statistics, 2022"

The Bureau of Justice Statistics released this new report, titled "Federal Justice Statistics, 2022," which describes and provides data on criminal case processing in the federal system, including investigations, arrests, prosecutions and declinations, convictions and acquittals, sentencing, probation and supervised release, and imprisonment.  This document has an extraordinary amount of interesting data, and here is just a slice of some of the sentencing particulars:

Of the 65,470 defendants convicted in U.S. district court in FY 2022, more than three-quarters (77%) were sentenced to prison. The remainder received probation only (8%), a fine only (2%), or a suspended sentence (14%). Persons most likely to receive prison terms were those convicted of violent (93%), drug (89%), or weapons (89%) felonies. Seventeen percent of persons convicted of a misdemeanor received a prison sentence in FY 2022....

Convicted defendants received a median sentence of 110 months in prison for a violent offense, 70 months for a drug offense, and 60 months for a nonregulatory public order offense. The median prison term for immigration defendants convicted of a felony was 13 months....

Convicted males (80%) were sentenced to prison more often than convicted females (62%). Twenty percent of convicted females received a probation-only sentence, compared to 6% of convicted males. Convicted defendants who were black (85%) were the most likely to receive a prison sentence, followed by those who were American Indian or Alaska Native (84%); white (78%); Hispanic (74%); and Asian, Native Hawaiian, or Other Pacific Islander (66%). Among those sentenced to prison, white and black defendants were both sentenced to a median of 60 months.  The median age of defendants convicted in FY 2022 was 36 years....

"'Mass Incarceration' Myths and Facts: Aiming Reform at the Real Problems"

The title of this post is the title of this notable new paper authored by Paul Robinson and Jeffrey Seaman now available via SSRN. Here is its abstract:

Few claims have won such widespread acceptance in legal academia as the “mass incarceration” narrative: the idea that the rise in America’s prison population over the last half century was fueled largely by the needless and unjust imprisonment of millions of criminal offenders due to punitive changes in sentencing.  To many academics and activists, the question is not how accurate the mass incarceration narrative is, but how mass incarceration can be ended.  This Article argues the “mass incarceration” narrative is based on a series of myths and, as a result, many proposed reforms are based on a misunderstanding of America’s past and present carceral practices.  A more accurate understanding is needed to produce effective reform.

The central myth of the mass incarceration narrative is that exceptional and unjustified punitiveness largely explains America’s significant increase in prison population since the 1960s.  This explanation overlooks the numerous non-sentencing factors that increased incarceration: a near doubling in U.S. population, higher crime rates, increased justice system effectiveness, deinstitutionalization of the mentally ill, new and tightened criminalizations, worsening criminal offender histories, and more.  While this Article makes no attempt at statistical precision, these non-sentencing factors can easily explain most of America’s elevated incarceration compared to the 1960s — a fact in direct conflict with the mass incarceration narrative.  Additionally, while some punishments have increased in severity since the 1960s, most of these increases are likely to be seen as moving sentences closer to what the community – and many incarceration reformers – would believe is appropriate and just, as in cases of sexual assault, domestic violence, stalking, human trafficking, firearm offenses, and child pornography, among others.

Comparing America’s prison population to foreign countries, as the mass incarceration narrative often does, similarly overlooks the contributions of many of these non-sentencing factors and incorrectly assumes that a higher American per capita incarceration rate always reflects a problem with American, instead of foreign, practice.  While America can certainly learn from foreign countries, the reality is that many foreign sentencing practices have sparked chronic and widespread dissatisfaction abroad.  It may be that the dispute over incarceration practices is more a dispute between the elites and the community than a dispute between the U.S. and other democracies’ populations.

While all decarceration reformers should welcome a clearer picture of America’s incarceration practices, it is hard not to conclude that many mass incarceration myths were created deliberately by those who oppose not only incarceration but punishment generally.  For these activists, the mass incarceration narrative is primarily a means toward eliminating punishment, a goal that is difficult to pursue directly because it is so contrary to the views of the general population and even a majority of academia.

This Article is not pro-incarceration.  It subjects the mass incarceration narrative to much needed scrutiny precisely because reforming incarceration practices is necessary.  The criminal justice system should strive to deliver just punishment in the most societally beneficial way, which we believe means increasing the use of non-incarcerative sanctions.  The myths of the mass incarceration narrative frequently lead activists to overlook non-incarcerative reforms that deliver just punishment — a tragic failure because such reforms would have much stronger popular support than the anti-punishment or unsophisticated anti-prison reforms now pushed by the mass incarceration narrative.

Part I of the Article describes the mass incarceration myths that have become so broadly accepted.  Part II reviews the facts of American incarceration practice, which contradict many, if not most, aspects of the narrative.  Part III offers our reform proposals, which we believe more accurately address the problems in current incarceration practice. Central to those proposals are the use of creative non-incarcerative sanctions that still deliver punishment proportional to a nuanced assessment of each offender’s moral blameworthiness.

Could we really see Trump "run to Biden’s left on criminal justice reform"?

The question in the title of this post is prompted by this notable new Hill commentary authored by Max Burns and headlined "What happened to Biden’s promises on criminal justice reform?". The whole piece is interesting, and here are some excerpts:

Back in his 2020 run for the White House, Joe Biden won over the skittish left in part because of his willingness to take big, bold stances on hot-button issues like criminal justice reform.  From interrupting the so-called “school to prison pipeline” through boosts to mental health funding to ending all incarceration for simple possession of drugs, the former vice president imagined a ground-up reworking of the carceral state....

A lot has changed in four years.  Biden’s old criminal justice pitch has since been scrubbed from his website.  He now faces regular criticism not only from the progressive left but also from experts within the criminal justice system for his often contradictory approach to the issue.  Biden isn’t alone: across the party, one of Democrats’ biggest issues in 2020 is all but invisible this year. What happened?

In researching this column I reached out to two dozen House Democrats, including multiple progressive lawmakers who staked prominent criminal justice reform positions in 2020.  Not a single office responded.  The situation wasn’t much better among the criminal justice reform nonprofits that vaulted to national prominence during 2020’s heated national debate on race, policing and prison reform.  Of the 10 organizations I reached out to, I received responses from only two.

From those willing to speak, the message was clear.  “The only hesitancy we’re seeing is from inside-the-beltway politicians who aren’t in touch with what their voters want,”  Justice Action Network Executive Director Jenna Bottler told me. “If the president wants to rejoin the criminal justice conversation, it’s simple: listen to the voters who are smarter than election-year soundbites.”...

That creates the bizarre circumstances for 2024, where Republican presidential front-runner Donald Trump can run to Biden’s left on criminal justice reform.  The former president’s First Step Act marked its fifth anniversary last month, with the Bureau of Prisons reporting that more than 26,000 incarcerated Americans have been released under First Step provisions.  The First Step Act is even held in high regard by criminal justice leaders who share no other common ground with Trumpism.

“Trump has a strong and overwhelmingly popular track record on these issues. The first candidate that rejects the dated political rhetoric of the 70s and 80s …will be rewarded by voters,” Bottler said....

Critically, Trump’s First Step Act also proved that federal criminal justice reform does work. Republicans who supported the bill now proudly share news stories about how incarcerated people released under the FSA are 37 percent less likely than their peers to reoffend. The success and broad national popularity of the First Step Act should open the door for even bolder action by Biden, including a follow-up bill that expands on what FSA began. Instead, Democrats have ceded that ground to Trump, who will certainly make political hay of Biden’s limited action during the exhausting campaign ahead.

It may seem crazy that Trump could score political points with voters by scolding Biden for failing to release enough incarcerated people. But polls have remained consistent since 2018, even if Democrats haven’t. Supermajorities of Americans still support a host of commonsense prison and criminal justice reforms.

"Redistributing Justice"

The title of this post is the title of this new article now available via SSRN authored by Benjamin Levin and Kate Levine. Here is its abstract:

This Article surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system.  Despite increasingly prevalent critiques of criminal law from progressives, there hardly is a consensus on the left in opposition to the carceral state.  Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas — often areas where defendants are imagined as powerful and victims as particularly vulnerable.

In this Article, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment — the hope that the criminal system can be used to redistribute power and privilege.  We examine this redistributive theory of punishment via a series of case studies: police violence, economic crimes, hate crimes, and crimes of gender subordination.  It is tempting to view these cases as one-off exceptions to a general opposition to criminal punishment.  Instead, we argue that they reflect a vision of criminal law as a tool of redistribution — a vehicle for redistributing power from privileged defendants to marginalized victims.

Ultimately, we critique this redistributive model of criminal law.  We argue that the criminal system can’t redistribute in the egalitarian ways that some commentators imagine.  Even if criminal law somehow could advance some of the redistributive ends that proponents suggest, though, our criminal system would remain objectionable.  The oppressive and inhumane aspects of the carceral state still would be oppressive and inhumane even if the identity of the defendants or the politics associated with the institutions shifted.

Feds reportedly to allow Colorado nightclub mass murderer to plead guilty to avoid capital charges

As reported in this new AP piece, a "shooter who killed five people and endangered the lives of over 40 others at an LGBTQ+ nightclub in Colorado Springs plans to plead guilty to new federal charges for hate crimes and firearm violations under an agreement that would allow the defendant to avoid the death penalty, according to court documents made public Tuesday." Here is more:

Anderson Aldrich, 23, made a deal with prosecutors to plead guilty to 50 hate crime charges and 24 firearm violations, the documents show. Aldrich would get multiple life sentences in addition to a 190-year sentence under the proposed agreement, which needs a judge’s approval....

Aldrich was sentenced to life in prison last June after pleading guilty to state charges of murder and 46 counts of attempted murder — one for each person at Club Q during the attack on Nov. 19, 2022.

Word of the new charges and planned agreement come just days after federal prosecutors revealed they would seek the death penalty in another hate crime case — against a white supremacist who killed 10 Black people at a supermarket in Buffalo, New York....

Aldrich, who is nonbinary and uses they/them pronouns, also pleaded no contest to state charges for hate crimes under a plea agreement. The plea was an acknowledgment there was a good chance Aldrich would be convicted of those crimes without admitting guilt. The pleas carried the same weight as a conviction....

At the time of Aldrich’s sentencing in state court, Colorado Springs area District Attorney Michael Allen said the possibility of receiving the death penalty in the federal system was a “big part of what motivated the defendant” to plead guilty to the state charges....

Aldrich declined to speak at the sentencing hearing in state court, and haven’t said why they hung out at the club, then went outside and returned dressed in body armor. Aldrich began firing an AR-15-style rifle as soon as they came back in. Prosecutors say Aldrich had visited the club at least six times before that night and that Aldrich’s mother had forced them to go.

In a series of telephone calls from jail, Aldrich told The Associated Press they were on a “very large plethora of drugs” and abusing steroids at the time of the attack. When asked whether the attack was motivated by hate, Aldrich said that was “completely off base.” The district attorney called those statements self-serving and characterized the assertion as ringing hollow. He said Aldrich’s claim of being nonbinary is part of an effort to avoid hate crime charges, saying there was no evidence of Aldrich identifying as nonbinary before the shooting.

During hearings in the state case in February, prosecutors said Aldrich administered a website that posted a “neo-Nazi white supremacist” shooting training video. A police detective also testified that online gaming friends said Aldrich expressed hatred for the police, LBGTQ+ people and minorities, and used racist and homophobic slurs. One said that Aldrich sent an online message with a photo of a rifle trained on a gay pride parade....

The 2022 attack came more than a year after Aldrich was arrested for threatening their grandparents and vowing to become “the next mass killer ″ while stockpiling weapons, body armor and bomb-making materials. Those charges were eventually dismissed after Aldrich’s mother and grandparents refused to cooperate with prosecutors.

Notable recent reports and press on mental illness and criminal justice processes

I have seen recently a number of notable recent pieces of from a variety of sources concerning various criminal justice systems' challenges in dealing with persons with mental illnes.  Though each of these pieces likely justify their own blog post, I am going to have to make due with a round-up post:

Public Policy Reports: 

From Center for American Progress, "Long-Term Solutions to the Overincarceration of People With Mental Health Disabilities"

From John Jay Reseach, "New Responses To Mental Illness Emerge In The Justice System"

From Pew, "Adults With Mental Illness Are Overrepresented in Probation Population"

 

Press Reports:

From ABC News, "The national issue of criminalizing our mentally ill"

From New York Focus, "He Was Sick, So They Sent Him to Prison: New York jails can transfer people with mental illnesses to maximum security prisons, even while they’re legally innocent."

From ProPublica, "Committed to Jail: How Mississippi Jails People for Mental Illness"

The Sentencing Project releases final report on racial disparities, "One in Five: How Mass Incarceration Deepens Inequality and Harms Public Safety"

As noted in this October post, The Sentencing Project has been producing what it describes as "a series of four reports examining both the narrowing and persistence of racial injustice in the criminal legal system, as well as highlighting promising reforms."  Today, The Sentencing Project released this latest and last report in this series, titled "One in Five: How Mass Incarceration Deepens Inequality and Harms Public Safety."  Here is a starting part of this new report's executive summary:

The previous installment of the One in Five series examined three drivers of racial disparity from within the criminal legal system: disparate racial impact of laws and policies, racial bias in the discretion of criminal legal professionals, and resource allocation decisions that disadvantage low-income people.6 This final installment of the series presents a fourth driver of disparity in imprisonment which relates to the damaging consequences of criminal legal contact—contact that is disproportionately experienced by communities of color.

Specifically, this report explores laws and policies that exacerbate socioeconomic inequalities by 1) imposing financial burdens and collateral consequences on people with criminal convictions and 2) diverting public resources from effective interventions to promote public safety.

Prior related posts:

• Sentencing Project releases first in series of reports on the "narrowing and persistence" of racial disparities CJ system
• The Sentencing Project releases latest report on racial disparities, “One in Five: Disparities in Crime and Policing”
• The Sentencing Project releases latest report on racial disparities, "One in Five: Racial Disparity in Imprisonment - Causes and Remedies"

"Refining the Dangerousness Standard in Felon Disarmament"

The title of this post is the title of this essay recently posted to SSRN and authored by Jamie G. McWilliam. Here is its abstract:

For a regulation of the Second Amendment right to be upheld, Bruen requires a showing of historically analogous laws.  In the context of felon disarmament, the primary group of laws that the government has put forward involve disarming classes that the government deemed dangerous, such as Loyalists, Catholics, and Blacks.  While the theme of dangerousness within these laws is strong, their prejudicial nature is concerning.  How can a court rely on them without implicitly importing a prejudicial analysis?

This essay argues that the takeaway from these historical analogues should be a broad theme of dangerousness, rather than the particular conceptions embodied therein.  Instead, to determine the scope of the dangerousness standard, courts should look to the principles embodies by the Second Amendment itself — in particular, defense against immediate personal violence.  Ultimately, this essay suggests that only those who have actually created the kind of danger that the amendment was meant to protect against — i.e., who have perpetrated physical violence — should be disarmed.  This standard may defend against potentially prejudicial discretion, while simultaneously upholding Second Amendment rights and protecting our community.

Inspired by sermon on love, hate and the "highway of history" on this MLK Day

On MLK days in recent years, I have made a tradition of making time to listen to the full "I Have A Dream" speech by Dr. King (which always delivers), and I now also explore Stanford University's awesome collection of MLK Papers.  In previous years (in posts linked below), I have quoted from various renown speeches and writings with an emphasis on the intersection of the civil rights movement and criminal justice reform.  But today, what caught my attention was Dr. King's sermon titled simply "Loving Your Enemies," which he delivered at Dexter Avenue Baptist Church in November 1957.  I recommend the full sermon, and here are some excerpts:  

I think the first reason that we should love our enemies, and I think this was at the very center of Jesus’ thinking, is this: that hate for hate only intensifies the existence of hate and evil in the universe.  If I hit you and you hit me and I hit you back and you hit me back and go on, you see, that goes on ad infinitum.  It just never ends.  Somewhere somebody must have a little sense, and that’s the strong person.  The strong person is the person who can cut off the chain of hate, the chain of evil.  And that is the tragedy of hate, that it doesn’t cut it off.  It only intensifies the existence of hate and evil in the universe.  Somebody must have religion enough and morality enough to cut it off and inject within the very structure of the universe that strong and powerful element of love....

And if somebody doesn’t have sense enough to turn on the dim and beautiful and powerful lights of love in this world, the whole of our civilization will be plunged into the abyss of destruction.  And we will all end up destroyed because nobody had any sense on the highway of history.  Somewhere somebody must have some sense.  Men must see that force begets force, hate begets hate, toughness begets toughness.  And it is all a descending spiral, ultimately ending in destruction for all and everybody.  Somebody must have sense enough and morality enough to cut off the chain of hate and the chain of evil in the universe.  And you do that by love....

There is a power in love that our world has not discovered yet.  Jesus discovered it centuries ago.  Mahatma Gandhi of India discovered it a few years ago, but most men and most women never discover it.  For they believe in hitting for hitting; they believe in an eye for an eye and a tooth for a tooth; they believe in hating for hating; but Jesus comes to us and says, “This isn’t the way.”

Also a helpful reader made another reading recommendation for this day, this new opinion piece from the Washington Post by Colbert King, headlined "To bend toward justice, the arc of history has to bend toward family, too."  An excerpt:

“The family, that is, the group consisting of mother, father and child, still remains the main educational agency of mankind,” King said. Those words can’t top the majesty and call to action of King’s “I Have a Dream” oration, or match the moral teachings of his “Letter from Birmingham Jail.” But they go to the heart of what’s missing in the lives of the many who are not free to join in this weekend’s festivities [because they are incarcerated].

A few links to a few recent MLK Day posts:

• Some still timely phrases from MLK's "I Have A Dream" speech for advocates of criminal justice reforms 
• Some new quotes at the end of the latest MLK day
• What might Martin Luther King seek as the next step in federal criminal justice reform? 
• Remembering and honoring the (always timely) poignancy of the great words of Dr. Martin Luther King 
• How about passing the EQUAL Act so we can be "free at last" from the crack/powder sentencing disparity? 

Notable district court ruling that circuit precedent precludes reduction of extreme stacked 924(c) sentence

A helpful reader made sure I saw a notable new denial of a sentencing-reduction motion in US v. Carter, No. 07-374-1 (ED Pa. Jan. 12, 2024) (available for download below).  I highly recommend the full 25-page opinion; it covers thoughtfully the legal debate over the US Sentencing Commission's new sentence-reduction guideline, a debate that is sure to play out in federal district and circuit courts across the nation in the months ahead.  Here is the start of the opinion and the ruling's concluding paragraphs:

Johnnie Carter is currently serving a de facto life sentence — 840 months, or 70 years — for a string of armed robberies he committed in 2007.  The bulk of this sentence was the result of Carter’s conviction on three charges brought under 18 U.S.C. § 924(c), each of which earned him lengthy, mandatory terms of imprisonment that must be served consecutively.  Congress has since enacted the First Step Act, Pub. L. 115-391, 132 Stat. 5222 (2018), which among its many provisions amended Section 924(c) to substantially lower these mandatory minimums going forward.  As a result, the Government agrees that Carter “is serving a long sentence that would be significantly lower if imposed under current law.”

Carter now moves to reduce his sentence, pursuant to 18 U.S.C. § 3582(c)(1)(A)(i).  That statute, commonly referred to as the compassionate-release statute, authorizes district courts to reduce an imposed term of imprisonment upon a finding that “extraordinary and compelling reasons warrant such a reduction.”  In support of his motion, Carter points to a recently promulgated policy statement from the U.S. Sentencing Commission, which states that an “unusually long sentence,” coupled with a non-retroactive change in the law, can constitute an extraordinary and compelling reason to modify a sentence. U.S.S.G. § 1B1.13(b)(6).  He further highlights his strong family ties, evidence of rehabilitation, and good conduct while incarcerated as “other circumstances” warranting a reduction.  Id. § 1B1.13(b)(5). The Government opposes the motion, arguing that the Sentencing Commission’s recent policy statement exceeds its statutory authority, and that Carter’s circumstances do not otherwise warrant a reduction....

When considered together, these factors paint a clear picture of a defendant who, while undoubtably having earned himself a significant term of imprisonment for serious and violent offenses, does not deserve to spend his life behind bars.  If permitted to do so, the Court would be inclined to agree with his argument that a shorter sentence would be “sufficient, but not greater than necessary, to comply with the purposes” of federal sentencing. 18 U.S.C. § 3553(a). But, as discussed in Parts II.A and II.B, supra, Third Circuit precedent forecloses a finding that “extraordinary and compelling reasons” warrant compassionate release.  Unless and until that changes, his remedy lies not with the judicial branch, but with Congress — which could make its amendments to Section 924(c)’s mandatory minima retroactive — or the executive — whose clemency power operates as “the ‘fail safe’ in our criminal justice system.” Herrera v. Collins, 506 U.S. 390, 415 (1993).

Carter’s progress towards rehabilitation has been laudable, and the sentence he is serving is both unduly long and grossly disproportionate to the sentence a similarly situated defendant would receive today.  But in light of the Third Circuit’s decision in Andrews, these considerations cannot serve as the kinds of “extraordinary and compelling reasons” required to find him eligible for compassionate release.  As such, his motion must be denied.

Download US v. Carter (E.D.Pa.) - DE417 - Opinion Denying Compassionate Release

I have explained in numerous prior posts why I think rulings like Andrews, the Third Circuit precedent that dictates the conclusion in this case that an "unduly long and grossly disproportionate" sentence cannot be modified, is a misreading of § 3582(c)(1)(A)(i).  As I see it, the plain text of applicable statutes, which state only that "rehabilitation alone" cannot be considered an extraordinary and compelling reason, do not permit circuit courts making its own policy by deeming other factors catergorically insufficient for ever serving as the basis of a sentence reduction.

Notwithsanding what seems like clear statutory text, prior to the Sentencing Commission's revision to guideline 1B1.13, the circuit courts divided almost evenly as to whether so-called "changes in law" could provide a basis for a sentence modification.  This new Carter ruling leads me to suspect we will see a similar pattern of rulings replicated in new rounds of motions and appeals.  At some point, the Supreme Court will need to weigh in.