Sentencing Law and Policy

New Third Circuit panel ruling rejects Second Amendment challenge to felon-in-possession charge for person on supervised release

The Third Circuit issued a notable panel ruling yesterday that rejected a Second Amendment claim raised by a person convicted of a federal felon-in-possession charge in Third Circuit in US v. Moore, No. 23-1843 (3d Cir. Aug. 2, 2024) (available here). Here is the start of the opinion and a few key passages:

This appeal arises under the Second Amendment to the United States Constitution and presents a question of first impression in this Court.  Does a convict completing his sentence on supervised release have a constitutional right to possess a firearm?  The answer is no....

The bottom line is this: during the founding era, forfeiture laws temporarily disarmed citizens who had committed a wide range of crimes.  Convicts could be required to forfeit their weapons and were prevented from reacquiring arms until they had finished serving their sentences.  This historical practice of disarming a convict during his sentence — or as part of the process of qualifying for pardon — is like temporarily disarming a convict on supervised release. After all, “[t]he defendant receives a term of supervised release thanks to his initial offense, and . . . it constitutes a part of the final sentence for his crime.” United States v. Haymond, 588 U.S. 634, 648 (2019) (plurality opinion); see also United States v. Island, 916 F.3d 249, 252 (3d Cir. 2019) (“The supervised release term constitutes part of the original sentence.”) (cleaned up).  Consistent with our Nation’s history and tradition of firearms regulation, we hold that convicts may be disarmed while serving their sentences on supervised release....

Our conclusion is bolstered by the Supreme Court’s recent decision in Rahimi.  As the Court explained, early American surety and affray laws establish the principle that “[w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” Rahimi, 144 S. Ct. at 1901.  The Court applied that principle to uphold the federal law prohibiting an individual subject to a domestic violence restraining order from possessing firearms. See id. (citing 18 U.S.C. § 922(g)(8)). Taken together, the early American forfeiture laws — which required forfeiting property in general and arms in particular — likewise yield the principle that a convict may be disarmed while he completes his sentence and reintegrates into society. And this principle justifies applying § 922(g)(1) to Moore, a convict on supervised release.

Interestingly, this Moore ruling rejecting a Second Amendment challenge to a § 922(g)(1) conviction was authored by Judge Hardiman, the same Judge who authored the majority opinion in Range v. Attorney General, No. 21-2835 (3d Cir. 2023) (discussed  here), which sustained a Second Amendment challenge to a § 922(g)(1) conviction (albeit before the Supreme Court's recent Rahimi decision) .  Notably, the Moore ruling does not cite or mention Range, perhaps suggesting the court here sees a critical difference between criminalizing gun possession for a period of supervised release and criminalizing gun possession for life based on any and every felony.

"Race, Racial Bias, and Imputed Liability Murder"

Though posted on SSRN a few months ago, I just came across this new paper that shares a title with this post and was authored by Perry Moriearty, Kat Albrecht and Caitlin Glass. Here is its abstract:

Even within the sordid annals of American crime and punishment, the doctrines of felony murder and accomplice liability murder stand out.  Because they allow states to impose their harshest punishments on defendants who never intended, anticipated, or even caused death, legal scholars have long questioned their legitimacy.  What surprisingly few scholars have addressed, however, is who bears the brunt.  This Article is one of the first to explore the racialized impact of the two most controversial and ubiquitous forms of what we call “imputed liability murder.” 

An analysis of ten years of murder prosecutions in the state of Minnesota reveals that imputed liability murder is anything but a fringe subtype of homicide: an astounding 70% of those charged with murder during this period were charged with felony murder, accomplice liability murder, or both.  The study also shows that nearly 60% of these defendants were Black, a level of racial disproportionality that is not just intrinsically extreme; it is comparatively greater than levels of disproportionality for other types of murder.  The question is, why? 

The answer lies in part in the structural and social psychological dynamics of imputed liability murder prosecutions themselves, we claim.  By reducing prosecutors’ burden to prove the most salient legal indicia of a defendant’s culpability — mens rea, actus reus, or both — and allowing prosecutors to cast a wide and undifferentiated net around almost any homicide, the felony murder and accomplice liability murder doctrines invite prosecutors to base normative charging decisions on subjective, extra-legal proxies, like “dangerousness” and “group criminality.”  Multiple studies have shown that decision-makers are more likely to attribute these proxies to Black defendants and, in turn, treat them more punitively.  Compounding these dynamics is the racial stereotypicality of the crimes themselves.  A separate body of research indicates that felony murder and accomplice liability murder have become so cognitively synonymous with Black defendants that simply shoring up the doctrines’ structural laxity may not be enough to mitigate their disproportionate enforcement.

As states across the country grapple with reforming their felony murder and accomplice liability murder laws, this Article contributes to the ongoing debate about the legitimacy of both doctrines.  It also raises critical questions about the racialized enforcement of not just these doctrines but of any doctrine that invites the State to impute criminal liability. 

US Defense Secretary overrules GITMO overseer to revoke plea agreement with 9/11 defendants

As reported in this New York Times article, "Defense Secretary Lloyd J. Austin III on Friday overruled the overseer of the war court at Guantánamo Bay and revoked a plea agreement reached earlier this week with the accused mastermind of the Sept. 11, 2001, attacks and two alleged accomplices."  Here is more:

The Pentagon announced the decision with the release of a memorandum relieving the senior official at the Defense Department responsible for military commissions of her oversight of the capital case against Khalid Shaikh Mohammed and his alleged accomplices for the attacks that killed nearly 3,000 people in New York City, at the Pentagon and in a Pennsylvania field.

The overseer, retired Brig. Gen. Susan K. Escallier, signed a pretrial agreement on Wednesday with Mr. Mohammed, Walid bin Attash and Mustafa al-Hawsawi that exchanged guilty pleas for sentences of at most life in prison.  In taking away the authority, Mr. Austin assumed direct oversight of the case and canceled the agreement, effectively reinstating it as a death-penalty case.  He left Ms. Escallier in the role of oversight of Guantánamo’s other cases.

Because of the stakes involved, the “responsibility for such a decision should rest with me,” Mr. Austin said in an order released Friday night by the Pentagon....

A senior Pentagon official said that the decision was the secretary’s alone, and that the White House had no involvement.  The official said Mr. Austin had never supported a plea deal and wanted the military commission trials to proceed.

Mr. Austin’s action was met with disbelief by lawyers at Guantánamo Bay who were preparing for a hearing, possibly as soon as Wednesday, for the judge in the case, Col. Matthew N. McCall, to question Mr. Mohammed about whether he understood and voluntarily agreed with the plea.

Prior related posts:

• Federal prosecutions alert families that possible plea deals with 9/11 defendants may preclude death penalty 
• Federal prosecutors finalizes plea deals with three 9/11 defendants for LWOP sentences

End of week round-up with a wide array of criminal justice and sentencing pieces

The weather contributes to the feeling that we are in the so-called dog days of summer, and this week had plenty of press dogs barking about a lot of criminal justice and sentencing topics.  As always, this lengthy list is still just an abridged review of pieces that caught my eye in these busy times: 

From The 19th, "From arrest to release, there’s a new effort to investigate the experiences of incarcerated women"

From the ABA Journal, "Chemerinsky: These Supreme Court sleeper cases will have lasting impact"

From Al Jazeera, "What is the controversy behind Louisiana’s new surgical castration law?"

From the AP, "Court filings provide additional details of the US’ first nitrogen gas execution"

From Axios, "Louisiana eliminates parole and reduces "good time" early release"

From Bloomberg Law, "DOJ Starts Pilot to Pay Whistleblowers for White-Collar Tips"

From The Bulwark, "Criminal Justice Reform: Trump’s Indifference vs. Harris’s Mixed Record"

From the Davis Vanguard, "Study Suggests Deadly Role Race Plays in California Capital Sentencing Decisions, Charging, ‘Racial Factors Have Infected California Capital Sentencing’"

From The Hill, "Harris faces calls to address mass incarceration, drop prosecutor vs. criminal line"

From The Marshall Project, "Facing Rollbacks, Criminal Justice Reformers Argue Policies Make People Safer"

From MLive, "Frail inmates have better shot at early release from Michigan prisons under updated law"

From NBC News, "Ex-AG Holder: Accused 9/11 terrorists avoid death row because of 'political hacks' who blocked a U.S. trial"

From NJ Spotlight News, "NJ clemency review process is ‘a potent model for national change’"

From the Wall Street Journal, "For Big Companies, Felony Convictions Are a Mere Footnote"

From the Washington Post, "Study examines link between family incarceration, children’s health"

From WMNF, "Jeb Bush says he regrets not revamping the death penalty when he was Florida governor"

Crash victims' families formally object to proposed Boeing plea deal

In this post last month, I asked "Could families of crash victims disrupt the latest plea deal Boeing has accepted from the feds?".  I now see via this post by Paul Cassell over at The Volokh Conspiracy that he has helped file "a motion for the Boeing 737 MAX crashes victims' families, asking the district judge to reject the plea deal that the Justice Department and Boeing have negotiated."  Here is the lengthy motion's introductory statement:

Boeing’s lies to the FAA directly and proximately killed 346 people, as this Court has previously found.  ECF No. 116 at 16.  And yet, when the Government’s and Boeing’s skilled legal teams sat down behind closed doors to negotiate a plea deal, that tragic fact somehow escaped mention.  Instead, what emerged from the negotiations was a plea agreement treating Boeing’s deadly crime as another run-of-the-mill corporate compliance problem.  The plea agreement rests on the premise that the appropriate outcome here is a modest fine and a corporate monitor focused on the “effectiveness of the Company’s compliance program and internal controls, record-keeping, policies, and procedures ….” Proposed Plea Agreement, Attachment D, at ¶ 3.  And as a justification for such lenient treatment, the plea agreement relies on an incomplete and deceptive statement of facts that obscures Boeing’s true culpability.

The families object, as the Crime Victims’ Rights Act gives them the right to do.  See 18 U.S.C. § 3771(a)(3) (giving victims’ representatives the right “to be reasonably heard” regarding a “plea”).  The families respectfully ask the Court not to lend its imprimatur to such an inappropriate outcome. Indeed, the families’ first objection is that the Court would not be allowed to make its own determination about the appropriate sentence for Boeing but merely to rubber stamp what the parties propose through a “binding” plea deal under Fed. R. Crim. P. 11(c)(1)(C).

In the pages that follow, the families provide eight substantial objections to the proposed plea, including its deceptive factual premises, its inaccurate Sentencing Guidelines foundation, and its inadequate accounting for the deaths Boeing caused.  This Court has previously stated that when it has authority “to ensure that justice is done,” then “it would not hesitate.” ECF No. 186 at 29.  This proposed agreement is not justice.  The Court should not hesitate to reject it.

Prior related post:

• Could families of crash victims disrupt the latest plea deal Boeing has accepted from the feds?

Michigan Supreme Court finds violation of state constitution in applying sex offender registry to non-sexual offenders

A divided Michigan Supreme Court, splitting 5-2, ruled earlier this week in Michigan v. Lymon, No. 164685 (Mich. Julu 29, 2024) (available here), that its state constitution precluded putting people convicted of non-sexual crimes on the state's sex-offender registry.  Here is how the majority opinion begins and a few key passages from a lengthy (nearly 50-page) opinion:

Defendant challenges his inclusion on the sex-offender registry under the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., as cruel or unusual punishment under the Michigan Constitution.  We hold that the application of SORA to non-sexual offenders like defendant is cruel or unusual punishment in violation of the Michigan Constitution....

Although the 2021 SORA bears a rational relation to its nonpunitive purpose and the Legislature has continued to express its intention that SORA constitute a civil regulation, SORA resembles traditional methods of punishment, promotes the traditional aims of punishment, and imposes affirmative restraints that are excessive as applied to non-sexual offender registrants.  Accordingly, we conclude that the 2021 SORA constitutes punishment as applied to non-sexual offenders....

We conclude that the punishment of SORA registration for non-sexual offenders like defendant is grossly disproportionate and accordingly constitutes cruel or unusual punishment under the Michigan Constitution. See Bullock, 440 Mich at 35. Although other jurisdictions similarly include certain non-sexual offenders within their sex-offenderregistry laws, we find that this penalty is unduly harsh as compared to the non-sexual nature of the offense. Further, similar offenses do not result in this same penalty, and the offenses that do result in the same penalty are more severe and have a sexual component.  Accordingly, we conclude that the 2021 SORA constitutes cruel or unusual punishment as applied to non-sexual offenders.

The dissent, authored by Judge Zahra, clocks in at nearly 60 pages and has a multi-page conclusion that starts this way:

It is important to note what the majority opinion is and what it is not.  The majority opinion extends the Michigan Constitution to bar dissemination of accurate information to the public of those who have kidnapped and imprisoned children so that individuals in the community can have the knowledge to lead their lives as they so choose.  In so doing, the majority opinion effectively concludes that the public cannot be trusted with accurate information of convictions, because it may in the view of the majority opinion, unduly shame or burden individuals who were indeed convicted of child kidnapping and imprisonment. Despite being enacted for decades by the federal government and 42 out of 49 other state jurisdictions, this Court concludes that public registration for such offenses does not even reasonably advance the interests of public safety and awareness.  The majority opinion finishes with a conclusion never before reached by Michigan or federal courts: that public dissemination of conviction history, combined with registration requirements to ensure that the information is accurate, is so extraordinary and disproportionate to defendant’s offense of violently imprisoning children while they plead dearly for their lives and the life of their mother amounts to cruel or unusual treatment.  This is an extreme conclusion that will severely hinder this state from publicly recording and registering those who kidnap, abuse, or imprison children.

Federal prosecutors finalizes plea deals with three 9/11 defendants for LWOP sentences

In this post last year, I noted that families of 9/11 victims had been notified that military prosecutors and defense lawyers were exploring plea deals for certain defendants that would take the death penalty off the table.  Last night, as reported in this New York Times article, it seemingly became official that the "man accused of plotting the attacks of Sept. 11, 2001, and two of his accomplices have agreed to plead guilty to conspiracy and murder charges in exchange for a life sentence rather than a death-penalty trial at Guantánamo Bay, Cuba."  Here is more:

Prosecutors said the deal was meant to bring some “finality and justice” to the case, particularly for the families of nearly 3,000 people who were killed in the attacks in New York City, at the Pentagon and in a Pennsylvania field.

The defendants Khalid Shaikh Mohammed, Walid bin Attash and Mustafa al-Hawsawi reached the deal in talks with prosecutors across 27 months at Guantánamo and approved on Wednesday by a senior Pentagon official overseeing the war court.

The men have been in U.S. custody since 2003. But the case had become mired in more than a decade of pretrial proceedings that focused on the question of whether their torture in secret C.I.A. prisons had contaminated the evidence against them.

Word of the deal emerged in a letter from war court prosecutors to Sept. 11 family members. “In exchange for the removal of the death penalty as a possible punishment, these three accused have agreed to plead guilty to all of the charged offenses, including the murder of the 2,976 people listed in the charge sheet,” said the letter, which was signed by Rear Adm. Aaron C. Rugh, the chief prosecutor for military commissions, and three lawyers on his team. The letter said the men could submit their pleas in open court as early as next week.

The plea averted what was envisioned as an eventual 12- to 18-month trial, or, alternatively, the possibility of the military judge throwing out confessions that were key to the government’s case. Col. Matthew N. McCall, the judge, had been hearing testimony this week and had more hearings scheduled for later this year to decide that and other key pretrial issues....

The three men will still face a mini trial of sorts, but probably not before next year. At the military commissions, where they were charged, a judge accepts the plea, but a military jury must be empaneled to hear evidence, including testimony from victims of the attacks, and deliver a sentence. By that point, the judge has typically resolved litigation over what evidence can be used at the sentencing proceeding.

The deal stirred both anger and relief among the thousands of relatives of those killed on Sept. 11. Some family members had been fearful that the case would never reach a resolution, and that the defendants would die in U.S. custody without a conviction. Others, wanting a death penalty, had pushed the government to get the case to trial, even at the risk of the sentence being later overturned....

Two of the original five defendants were not a party to the deal. Ramzi bin al-Shibh, who was accused of helping to organize a cell of the hijackers in Hamburg, Germany, was found incompetent to stand trial because of mental illness, and his case was severed. The fifth defendant, known as Ammar al-Baluchi, 46, also was not included in the plea agreement and could face trial alone. He is the nephew of Mr. Mohammed and is charged, like Mr. Hawsawi, with helping the hijackers with finances and travel arrangements while working in the Persian Gulf.

South Carolina Supreme Court finds all three of state's execution methods to be constitutional

As reported in this local article, a "majority on the S.C. Supreme Court has ruled that allowing death row inmates the choice of the electric chair or firing squad to carry out their sentences does not constitute cruel and unusual punishment."  Here is more about the ruling:

The decision, published July 31, comes several years after the state legislature introduced the two methods as an alternative to lethal injection, which was discontinued after the state Department of Corrections was no longer able to procure the lethal drugs necessary to carry out those sentences.

The law prompted an immediate legal challenge, with opponents of the death penalty arguing that both alternative methods were exceedingly painful and unusual in a country where executions have overall been declining. Today, just five states — Idaho, Mississippi, Oklahoma, South Carolina and Utah — deploy firing squads for executions, while the electric chair is currently used in Alabama, Arkansas, Florida, Kentucky, South Carolina and Tennessee.

A Richland County court ruled in 2022 that both electrocution and the firing squad violated the South Carolina Constitution's provisions against cruel and unusual punishment.

Writing for the majority on July 31, Justice John Cannon Few wrote that the two methods could not be considered cruel and unusual because, rather than representing an effort to inflict pain, the execution methods represented the S.C. General Assembly's "sincere effort" to make the death penalty less inhumane while enabling the state to carry out its laws.

The full ruling in Owens v. Stirling, Opinion No. 28222 (S.C. July 31, 2024) (available here), which includes some partial dissents on certain execution methods, runs nearly 100 pages.  Because there seems to now be only a few (if any) current US Supreme Court Justices eager to police state execution methods, these kinds of state supreme court rulings are nearly certain to be the last legal word on these matters for the foreseeable future.

Notable echoes of Grants Pass reverberating throughout California

The US Supreme Court in Grants Passlast month turned away claims that the Eighth Amendment precluded charging homeless with crimes from camping/sleeping in certain areas (basics here).  There are been an array of legal and political echoes from the ruling, and this new New York Times article, headlined "Los Angeles Says It Will Not Join Newsom’s Push to Clear Encampments," details some of the notable recent developments at the state and local level in California.  Here are excerpts:

Days after Gov. Gavin Newsom put pressure on local governments to dismantle homeless encampments across California, leaders in Los Angeles County showed a united front, unanimously passing a resolution with a clear message: We will continue to take a different approach.

The vote on Tuesday by the board of supervisors, the five-member governing body of the county, reflected the deep motivation of local leaders to align themselves on strategy for a vast region that includes 88 cities and more than 75,000 homeless people. It also reaffirmed that homelessness would not be criminalized....

The motion, while absent of Mr. Newsom’s name, seemed squarely aimed at his executive order directing state agencies to begin clearing encampments from the streets. Local governments cannot be forced to uphold the decree, but they, along with many advocacy groups, rely on the state for billions of dollars in funding for homeless services and could feel pressure to comply at some point.

Mr. Newsom, perceived as a future presidential hopeful, issued the order in response to a Supreme Court ruling that allowed governments greater authority to eradicate encampments.... Some cities like San Francisco have embraced the state order, with its mayor vowing to make homeless people so uncomfortable on the streets that they accept offers of shelter beds.

Reviewing concerns (and litigation) over extreme heat in prisons and jails

This new Washington Post piece discusses the long-standing and extreme problem of extreme heat in US prisons and jails.  The full headline of this piece highlights its essentials: "For inmates, little escape from brutal heat in prisons without air conditioning: Climate change is exacerbating the danger. But no prisoners are sentenced 'to swelter to death in a confined space,' a civil rights attorney says."  Here is how the article starts:

As scorching temperatures sweep across the country again this week, one group of Americans is living day-to-day with limited air conditioning and few options for staying cool: the 2 million men and women in state and federal prisons.

These punishing heat waves, which are expected to intensify in frequency and severity because of climate change, pose what prisoner advocates say is a deadly danger to much of the nation’s incarcerated population. Legislation pending in Congress notes that 13 states in the South and Midwest lack universal air-conditioning requirements for their prison facilities, with 22 states lacking even policies on temperature regulation.

“This is probably the greatest health and safety issue facing the prison population,” said David Fathi, director of the ACLU National Prison Project, who has been working on the issue for more than two decades. “When people argue, ‘I didn’t have air conditioning growing up,’ it’s also important to realize that we could leave our homes and go to the mall or a library. Those in prisons are sitting ducks.”

Earlier this month, a 42-year-old inmate collapsed amid sweltering conditions in California’s Central Valley. State officials are investigating her death amid allegations by her family and the California Coalition for Women Prisoners that extreme heat was the cause.

In Texas, arguments will be heard Tuesday in a federal lawsuit that describes triple-digit highs inside some state prison cells in the summer. Advocates accuse officials of downplaying the number of deaths linked to excessive heat. One case last August involved a 32-year-old man with a history of epilepsy and mental illness, whose core body temperature was 107.5 degrees when he was found unresponsive in his cell.

"Probation and the shadow carceral state: Legal envisioning from Minnesota"

The title of this post is the title of this new article just published in the journal Theoretical Criminology and authored by Michelle Phelps and Eric Seligman. Here is its abstract:

The transformation of US punishment in the late 20th century was defined not just by mass imprisonment, but the growth of a shadow carceral state of administrative and civil sanctions, including technical violations of probation and parole that smooth the pathway to prison.  We consider the role of technical violations in the shadow carceral state through the lens of lived experience, analyzing interviews with adults on probation in Hennepin County, Minnesota, conducted in 2019.  Building on the concept of legal envisioning, we ask how people subject to probation experience the threat of violations and what they imagine would be helpful to avoid them.  Ultimately, these perspectives illuminate the need for transformative changes to dismantle the shadow carceral state and raise challenging questions about the role of care in punishment.

Intriguing DPIC analysis of capital clemency grants over last 46 years

The Death Penalty Information Center (DPIC) recently posted here an interesting analysis of "all 82 grants of clemency to individual death-sentenced prisoners between 1977-2023, excluding mass clemency grants." Here is how D{IC summarizes its findings at the start of the analysis:

In a new analysis, the Death Penalty Information Center has found that executive officials most often cite disproportionate sentencing, possible innocence, and mitigation factors such as intellectual disability or mental illness as reasons to grant clemency in capital cases.  Ineffective defense lawyering and official misconduct are also common factors in clemency grants.  While present in fewer cases, support for clemency from the victim’s family or a decisionmaker in the original trial, such as a prosecutor or juror, appears to have a powerful impact.  Prisoners frequently offer evidence of rehabilitation and remorse at clemency hearings, but this evidence is cited less often by officials.

Here is another notable part of the DPIC's analysis:

We found that about half of cases (47.6%) had more than one stated or apparent reason for clemency, illustrating the compounding nature of legal violations and unfair practices in capital cases.  However, this did not split evenly by category: while two-thirds of possible innocence cases had possible innocence as the only apparent reason for clemency, only one rehabilitation/remorse case out of ten had that factor as the only reason.  In other words, executive officials appeared confident in citing possible innocence as the sole reason for a clemency grant, or in granting clemency when innocence was the predominant argument, but almost always relied on another justification when rehabilitation/remorse played a role in the case.

"Rescheduling Marijuana: Implications for Criminal and Collateral Consequences"

The title of this post is the title of this short document prepared by the Congressional Research Service.  The document is notable mostly for its review of marijuana's existing criminal and collateral consequences than for a review of the implication of resecheduling.  Here is the heart of the rescheduling discussions:

Many CSA penalties for marijuana violations are written specifically for marijuana and are not tied to its Schedule I classification. If marijuana moves to Schedule III, those penalties would remain the same.  Many CSA and other federal offenses associated with marijuana’s general status as a controlled substance would also remain the same....

If marijuana moves to Schedule III, most of the consequences for its use or for marijuana-related convictions would remain the same.

That said, though rescheduling will not have many certain formal legal consequences in this area, I do think it could and likely would have all sorts of practical enforcement consequences. The CRS document notes the significant enforcement changes we have seen in recent years at the federa level even without any formal legal reforms:

Over the last five years (FY2019–FY2023), the number of individuals sentenced for marijuana trafficking in federal court has declined by 66%, from 1,674 per year to 561.  This decline is even sharper when considering longer term trends. In FY2014, 3,876 individuals were sentenced in federal court for marijuana trafficking (almost seven times higher than FY2023).

A few years ago, I co-authored this paper discussing these federal enforcement trends under the title "How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition."  I would expect federal marijuana rescheduling to have all sorts of (predictable and unpredictable) practical "implications for criminal and collateral consequences" in federal and state systems even if the formal legal impacts are quite modest.  

If any folks are interested in the wide array of broader legal issue connected to possible federal marijuana rescheduling, consider attending the online event next week hosted by the Drug Enforcement and Policy Center.  This event, titled "Federal Marijuana Reform: Effects and Echoes of Rescheduling," will take place on August 7, 2024 from 12 noon to 1:15 pm EDT, is described at this event page (which links to this registration page).

Why not consider some form of term limits for all federal judges, not just Supreme Court Justices?

I fully understand why the Supreme Court and its Justices get so much attention.  But I also know that anyone deeply concerned about federal jurisprudence, especially as it relates to criminal justice administration, must also attend to the work and composition of the entire federal judiciary.  After all, the Supreme court now decides only a few dozen cases each year (with only about a dozen of those criminal cases).  But, as detailed here, the federal circuit courts resolve tens of thousands of cases each year and the federal district courts resolve hundreds of thousands of cases each year.  (Of this number, nearly 20,000 federal appeals and over 100,000 federal trial court cases deal with various criminal matters.)

I am not sure if I am a supporter of term limits for Supreme Court Justices, as I see sound arguments on both sides of the debate.  But I am sure that if we are going to discuss and perhaps rework the terms of service for federal Justices, I would also like to discuss and perhaps rework the terms of service for all federal judges.  After all, as detailed here, there are many important federal judges — namely magistrate judges and bankruptcy judges — who serve for fixed terms rather than for life. 

Of course, this new Washington Post op-ed from Prez Joe Biden is raising anew these issues and others.  Here is part of his pitch for SCOTUS term limits:

What is happening now is not normal, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms.  We now stand in a breach.

That’s why — in the face of increasing threats to America’s democratic institutions — I am calling for three bold reforms to restore trust and accountability to the court and our democracy....

Second, we have had term limits for presidents for nearly 75 years.  We should have the same for Supreme Court justices.  The United States is the only major constitutional democracy that gives lifetime seats to its high court. Term limits would help ensure that the court’s membership changes with some regularity.  That would make timing for court nominations more predictable and less arbitrary.  It would reduce the chance that any single presidency radically alters the makeup of the court for generations to come.  I support a system in which the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court.

I could certainly see benefits in making the "timing for [all federal] court nominations more predictable and less arbitrary," as well as value in "reduc[ing] the chance that any single presidency radically alters the makeup of [each federal] court for generations to come."  Consequently, I would like to see coming discussions, as the title to this post suggests, to more robustly consider possible term limits for all federal judges and not just Supreme Court Justices.

"Crime rates are improving. Too bad crime data is not."

The title of this post is the headline of this new Washington Post editorial.  Here are excerpts:

There’s encouraging news about crime rates in the United States. After a spike in both violent crime and property offenses after the pandemic-and-protest year of 2020, statistics show that crime is reverting to 2019 levels. That’s according to a newly released midyear report by the Council on Criminal Justice, a nonpartisan think tank, based on monthly offense rates for 12 violent, property and drug crimes in 39 cities that have consistently reported such data over the past six years....

Even with the recent improvements, it is undeniable that crime, including the worst crime — homicide — spiked nationally in recent years. The trauma and insecurity that this caused lingers. In seven U.S. cities that provide data on carjacking, that offense remains 68 percent more frequent than it was in the first half of 2019, according to CCJ’s report. Shoplifting and car theft also remain at elevated levels.

Given the emotions that inevitably swirl around this subject, public opinion will probably never precisely reflect statistical reality. But at least the government could publish a sufficiently precise and up-to-date picture of statistical reality. Unfortunately, it does not, as another recent CCJ report explained. The lead federal source for national data, the FBI, issues annual reports each October based on numbers gathered up to 18 months previously and reported — voluntarily and with varying degrees of accuracy — to the bureau by some 18,000 police agencies....

In an age of social media and viral video, the government should be able to update the public on crime at least as often as, say, the Bureau of Labor Statistics reports on inflation or unemployment — that is, monthly.  Even reports based on a representative sample of jurisdictions would be an improvement over the status quo.

And yet the FBI’s new incident-reporting platform, intended to improve data quality, has made it more time-consuming and complex for police departments to send information to Washington. It has proven especially difficult for small, local agencies, nearly half of which have 10 or fewer officers on staff....

The Bureau of Justice Statistics gets less money from Congress than almost any other federal statistical agency. Last fiscal year, the bureau received $35 million, far less than the $78 million President Biden had requested and less than the $42 million it received the year prior.  The Bureau of Labor Statistics, by contrast, received $698 million.  Private groups such as CCJ do important work with their limited resources, as its latest report on crime trends, despite unavoidable data limitations, shows.  Keeping citizens fully informed about crime is a public responsibility, however. It deserves public resources to match.