Sentencing Law and Policy

Might Donald Trump advocate for the release of all those still serving time for marijuana offenses?

The quetion in the title of this post is prompted by comments made by Donald Trump during a press conference at Mar-a-Lago this past  Thursday.  Notably, as detailed in this effective Last Prisioner Project discussion, we really do not know exactly how many people are serving time in jail or prison for marijuana offenses.  But, as detailed in this Marijuana Moment piece, when former Prez Trump was asked about marijuana legalization, he seemed to suggest he was growing more supportive of the posision and specifically stated that "it’s awfully hard to have people all over the jails that are in jail right now for something that’s legal."  Here are details Marijuana Moment piece:

Former President Donald Trump says he is starting to “agree a lot more” that people should not be criminalized over marijuana given that it’s “being legalized all over the country” — adding that he will “fairly soon” reveal his position on the cannabis legalization measure on the November ballot in Florida, where he is a voter.

“As we legalize it, I start to agree a lot more because, you know, it’s being legalized all over the country,” Trump said at a press conference at Mar-a-Lago on Thursday. “Florida has something coming up. I’ll be making a statement about that fairly soon.”

A reporter had asked about the Biden-Harris administration push to reschedule cannabis, as well as Vice President Kamala Harris, the 2024 Democratic presidential nominee, stating repeatedly that people should not be incarcerated over simple cannabis offenses.  “As we legalize it throughout the country — whether that’s a good thing or a bad thing — it’s awfully hard to have people all over the jails that are in jail right now for something that’s legal,” Trump replied. “So I think obviously there’s a lot of sentiment to doing that.”

While not an explicit endorsement of major marijuana reform, the statement represents another example of Trump departing from the harsh anti-drug rhetoric he’s been employing over this latest campaign, at least when it comes to marijuana. And while it’s unclear whether he will choose to back the Florida cannabis legalization measure that he will have the chance to vote on as a resident, he did not take the opportunity to denounce it, despite Florida Gov. Ron DeSantis’s (R) campaign against the reform measure.

The candidate also discussed people he’s issued presidential pardons for, including Alice Johnson, who was sentenced to life in prison without the possibility of parole over her role in a cocaine trafficking ring in the 1990s.  He said Johnson is a “fantastic woman” who “served 24 years for being on a phone call having to do with drugs, adding that she “was great” and “had another 24 years to go, and it was largely about marijuana, which, in many cases, is now legalized” at the state level.

I am pretty sire that Alice Marie Johnson had served over two decades of a life sentence on charges related to cocaine distribution and money laundering, not marijuana. That Trump now wanted to say her offense was "largely about marijuana" may, in its own way, support a supposition that Trump in a second term might actively seek release of all those still serving time for marijuana offenses.

Encouraging midyear 2024 violent crime data in lastest report from Major Cities Chiefs Association

This Crime and Justice News entry highlights notable violent crime data reported this past week from the Major Cities Chiefs Association.  Here are the details:

Reports of crimes in four major categories are down in the first half of 2024 compared with the same period last year, the Major Cities Chiefs Association says, compiling statistics from 69 jurisdictions.  Homicides dropped to 3,124 this year from 3,783 in the same period last year.  Reported rapes were down to 13,064 from 14,472, the robbery total fell to 45,575 from 48,529, and aggravated assaults decreased to 134,293 from 141,944.

The Major Cities Chiefs Association's "Violent Crime Survey" for midyear 2024 is available at this link.

"Still Cruel and Unusual: Extreme Sentences for Youth and Emerging Adults"

The title of this post is the title of this new Sentencing Project report authored by Ashley Nellis and Devyn Brown. The short report starts this way:

A wave of reforms since 2010 has changed the trajectory of punishment for young people by substantially limiting the use of juvenile life without parole (JLWOP) sentences. At the sentence’s height of prominence in 2012, more than 2,900 people were serving JLWOP, which provided no avenue for review or release.  Since reforms began, most sentence recipients have at least been afforded a meaningful opportunity for a parole or sentence review. More than 1,000 have come home. 

This progress is remarkable, yet thousands more who have been sentenced to similarly extreme punishments as youth have not been awarded the same opportunity.  Our analysis shows that in 2020, prisons held over 8,600 people sentenced for crimes committed when they were under 18 who were serving either life with the possibility of parole (LWP) or “virtual” life sentences of 50 years or longer.  This brief argues for extending the sentencing relief available in JLWOP cases to those serving other forms of life imprisonment for crimes committed in their youth.

In addition, The Sentencing Project has estimated that nearly two in five people sentenced to life without parole (LWOP) were 25 or younger at the time of their crime.  These emerging adults, too, deserve a meaningful opportunity for a second look because their developmental similarities with younger people reduces their culpability in criminal conduct. The evidence provided in this brief supports bold reforms for youth and emerging adults sentenced to extreme punishments.

Notable Sixth Circuit panel habeas opion reversing Ohio death sentence in part "due to the trial court judge’s bias and misconduct"

A helpful reader made sure I did not miss the notable panel opinion issued by the Sixth Circuit earlier this week in Jackson v. Cool, No. 21-3207 (6th Cir. Aug. 8, 2024) (available here). The start of the unanimous opinion will highlight why it seems notable:

The Great Writ of Habeas Corpus is an extraordinary remedy that “guard[s] against extreme malfunctions in the state criminal justice systems.” Harrington v. Richter, 562 U.S. 86, 102 (2011) (internal quotation marks omitted).  This case is the epitome of such an extreme judicial malfunction.

Petitioner Nathaniel Jackson was convicted of a capital offense and sentenced to death.  But Jackson’s sentencing proceeding was blatantly unconstitutional at its core due to the trialcourt judge’s bias and misconduct, as well as his exclusion at sentencing of relevant mitigating evidence.  The prejudicial judicial bias and misconduct included numerous ex parte communications between the judge and prosecutor regarding substantive sentencing issues and the ghost writing by the prosecutor of the judge’s opinion sentencing Jackson to death.  In state court, when this unethical conduct came to light, the Ohio appellate courts publicly reprimanded the trial judge and ordered him to conduct new sentencing proceedings: the judge was to “personally review and evaluate the appropriateness of the death penalty” and “prepare an entirely new sentencing entry.”

On remand, Jackson moved to present three additional volumes of mitigating evidence.  The trial judge denied the motion, and he orally resentenced Jackson based on the stale, ten-yearold mitigation record.  A few hours after the resentencing hearing concluded, the judge issued a second opinion sentencing Jackson to death that was functionally identical to the original, corrupted opinion and contrary to the Ohio Court of Appeals’ specific instructions on remand. Nevertheless, the Ohio appellate courts affirmed Jackson’s sentence.  Jackson then filed a petition for a writ of habeas corpus in federal district court.  The district court granted Jackson’s petition on his claim that he was unconstitutionally denied the opportunity to present relevant mitigating evidence at his resentencing proceedings, but it denied Jackson’s other claims, including that the trial judge was unconstitutionally biased.  The warden appeals the district court’s habeas grant, and Jackson cross appeals regarding his judicial-bias and ineffective-assistance-of-counsel claims.

We affirm the district court in part and reverse in part.  We first hold that Ohio’s standard for assessing the potential for judicial bias is contrary to clearly established federal law as defined by the Supreme Court. And on de novo review, Jackson has demonstrated that the trial judge was unconstitutionally biased.  Second, the Supreme Court has clearly established that when a trial court is determining whether to impose the death penalty, capital defendants have a right to present any and all relevant mitigating evidence supporting a sentence less than death, including at resentencing proceedings, and Ohio’s failure to provide Jackson that right violated the Eighth Amendment.  Therefore, we affirm the district court’s issuance of a writ of habeas corpus on Jackson’s mitigating-evidence claim, reverse the district court’s denial of Jackson’s habeas petition on his judicial-bias claim, and remand for further proceedings consistent with this opinion.

Intriguing action, but no formal vote, from US Sentencing Commission on retroactivity of 2024 guideline amendments

As noted in this post yesterday, this afternoon the US Sentencing Commission had a scheduled public meeting, and the big official agenda items were "Possible Vote on Final 2024–2025 Policy Priorities" and "Possible Vote on Retroactivity of Certain 2024 Amendments." And, as noted in this post from earlier today, the Commission did vote, and voted unanimously, for this official set of new policy priorities.  But, interestingly, the Commission did not vote on the issue of retroactivity of certain 2024 amendments.

When reaching the retroactivity issue in the agenda (starting at around the 13:45 minute mark of the meeting recording here), the matter failed "for lack of a motion."  The Commission Chair subsequently explained that "many have called for the Commission to identify clear principles that will guide its approach to retroactivity" and that, "after deep deliberation," the Commission decided to heed those calls and apparently defer any vote on retroactivity. 

Notably, my colleague at the Sentencing Matters Substack, Jonathan Wroblewski, wrote this thoughtful post on this topic titled "Is it Time for the U.S. Sentencing Commission to Issue a Detailed, Written, and Reasoned Opinion on When it Applies Guideline Amendments Retroactively?".   I surmise that the Commission has decided that it is time for a new approach to its retroactivity decision-making, but it is not yet clear just what that now means either for retroactivity decisions generally or for the retroactivity of certain 2024 amendments.  Stay tuned.

Prior recent related posts:

• US Sentencing Commission sets out broad, general request concerning proposed priorities for 2024 to 2025 amendment cycle
• US Sentencing Commission releases over 1200 pages of public comment on proposed priorities
• US Sentencing Commission ... conducting "Public Hearing on Retroactivity" for its proposed 2024 guideline amendments
• US Sentencing Commission votes to adopt priorities that "reflect calls to simplify sentencing, reduce the costs of unnecessary incarceration, and promote public safety"

After Rahimi remand, Eighth Circuit panel again rejects Second Amendment challenge to federal felon in possesion charge

Thanks to the tip from a helpful commentor, I just saw that an Eighth Circuit panel today issued a significant ruling rejecting, yet again, a federal criminal defendant's claim "that he had a constitutional right under the Second Amendment to possess a firearm as a convicted felon."  As detailed in this post last year, an Eighth Circuit panel in US v. Jackson, first rejected this claim in June 2023 before the Supreme Court provided more guidance on the Seocnd Amendment in the Rahimi case.  The Jackson case was remanded from SCOTUS back to the Eighth Circuit after the Rahimi ruling, and today this new ruling reaches the same result.  Here is the start and close of the opinion in US v. Jackson, No. 22-2870 (8th Cir. Aug. 8, 2024) (available here):

Edell Jackson appeals his conviction for unlawful possession of a firearm as a previously convicted felon. He argues that the district court1 erred when itinstructed the jury on the elements of the offense, and when it responded to two questions from the jury during deliberations.  He also contends that he had a constitutional right under the Second Amendment to possess a firearm as a convicted felon.  We affirmed the judgment in 2023. United States v. Jackson, 69 F.4th 495 (8th Cir. 2023).

The case is now on remand from the Supreme Court for further consideration in light of United States v. Rahimi, 144 S. Ct. 1889 (2024).  Rahimi held that 18 U.S.C. § 922(g)(8), the federal prohibition on possession of a firearm while subject to a domestic violence restraining order, is constitutional on its face.  Rahimi does not change our conclusion in this appeal, and we again affirm the judgment of the district court....

In sum, we conclude that legislatures traditionally employed status-based restrictions to disqualify categories of persons from possessing firearms.  Whether those actions are best characterized as restrictions on persons who deviated from legal norms or persons who presented an unacceptable risk of dangerousness, Congress acted within the historical tradition when it enacted § 922(g)(1) and the prohibition on possession of firearms by felons.  Consistent with the Supreme Court’s assurances that recent decisions on the Second Amendment cast no doubt on the constitutionality of laws prohibiting the possession of firearms by felons, we conclude that the statute is constitutional as applied to Jackson.  The district court properly denied the motion to dismiss the indictment.

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

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

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

US Sentencing Commission votes to adopt priorities that "reflect calls to simplify sentencing, reduce the costs of unnecessary incarceration, and promote public safety"

I received an email from the US Sentencing Commission, not long after after its short public meeting today, titled "Embracing the Public’s Ideas to Improve Sentencing, Commission Unanimously Adopts Policy Priorities."  And the title of this post captured the emails subtitle: "Priorities Reflect Calls to Simplify Sentencing, Reduce the Costs of Unnecessary Incarceration, and Promote Public Safety."  And here is the full text of the email, with links from the original:

Each year, the bipartisan U.S. Sentencing Commission votes to adopt priorities that will guide its annual policymaking process.  This summer, the Commission solicited priorities from the public, asking how the agency can improve federal sentencing.  In response, the Commission received more than 1,200 pages of insightful comments from judges, members of Congress, executive branch officials, probation officers, advisory groups, attorneys, professors, advocates, organizations, incarcerated individuals, and others.

Today, the Commission voted unanimously to commit to prioritize one or more of the clear themes that emerged from the comments it has received, which included:

• Simplifying the federal Sentencing Guidelines and clarifying their role in sentencing. This includes revision of the “categorical approach” for purposes of the career offender guideline and possibly amending the Guidelines Manual to address the three-step process and the use of departures and policy statements relating to specific personal characteristics;
• Reducing the costs of unnecessary incarceration;
• Promoting public safety;
• Improving community supervision;
• Expanding the Commission’s use of expertise, evidence, and best practices; and
• Promoting evidence-based approaches to offense and individual characteristics. Read the full list of priorities.

“Today’s vote proves one thing: when you speak to the Commission, you will be heard,” said Judge Carlton W. Reeves, Chair of the Commission. “Our final priorities will allow us to give each public comment the attention it deserves. This is the first step in translating the public’s priorities into policies that improve federal sentencing. As we move forward, we will continue to seek out and obtain guidance from the public and stakeholders across the criminal justice system.” Watch a recording of today's meeting.

A compilation of public comment can be reviewed here. Visit www.ussc.gov for more information about the amendment process. 

"Research roundup: Evidence that a single day in jail causes immediate and long-lasting harms"

The title of this post is the title of this new Prison Policy Initiative briefing authored by Brian Nam-Sonenstein which carried this subtitle: "Recent research suggests the onset of pretrial detention’s criminal legal system, social, and economic harms is earlier than previously thought."  Here is how the work starts (with links from the original):

The criminal legal system views pretrial detention as a necessary sacrifice that prioritizes crime prevention and court attendance over personal liberty.  However, detention is demonstrably ineffective on both fronts: when compared to releasing people pretrial, jail counterintuitively worsens these outcomes on day one while making the system decidedly more unjust for those behind bars.  These failures come at a steep cost, as detention also immediately disrupts a person’s ability to work and increases their risk of death.  Horrendous jail conditions are only partially to blame; on a more basic level, pretrial detention’s disruptive and stigmatizing effects help explain why it fails to live up to its promises, and no amount of newer, nicer jails can change that.

Judges contemplate the risk a person poses to the community if released, but — crucially — not the risk detention poses to individuals and the community.  What are the risks of detention, how quickly do they materialize, and what might the system look like if they mattered in bail determinations?  To answer these questions, we examined recent studies that measure pretrial detention’s impact on people, particularly within the first 72 hours in jail.  Building on our investigations into pretrial detention’s role in destructive cycles of arrest and incarceration, the benefits of pretrial release, and the dangers of jail expansion, we find that there is no “safe” way to jail a person, nor is there an amount of time a person can be detained without escalating short- and long-term risks to themselves and their communities.

As we discuss below, if judges considered these harms and their implications for public safety when deciding whether to initially release or detain people, far fewer people would be jailed pretrial, shrinking the system to a tiny fraction of its current size.

Utah completes its first execution in 14 years

As reported in this USA Today article, "Utah executed a death row inmate for the 1998 murder of his then-girlfriend's mother on Thursday, the 12th execution in the nation this year and the state's first since a firing squad execution in 2010."  Here is more:

Taberon Dave Honie, 48, was executed by lethal injection and pronounced dead on Thursday, at 12:25 a.m. Mountain Time, according to the Utah Department of Corrections.  Honie's execution came nearly seven hours after Texas executed Arthur Lee Burton on Wednesday for the murder of Nancy Adleman, a 48-year-old mother of three who was out on a jog in Houston in 1997.

Honie was convicted for the murder of 49-year-old Claudia Benn, a substance abuse counselor for Utah's Paiute Tribe and a devoted grandmother of three. Benita Yracheta, Benn's daughter, told USA TODAY on Monday that she feels relief that she can put her mother's brutal death behind her, saying that justice is "finally happening" and at least Honie could prepare for the day. "My mom, she never knew her death date," she said. "She didn’t know she was gonna die that night." ....

There isn't "much similarity at all" between Honie's execution and Ronnie Lee Gardner's execution by firing squad in 2010, said Pat Reavy, a reporter with KSL.com who witnessed both executions, at the press conference. "I guess there's a peaceful way to put someone to death," said Reavy about Honie's execution "That's what this was."  Reavy described the firing squad execution as more traumatic. "The firing squad execution I thought was much more violent," said Reavy. "It shakes you, it's just so loud." While Honie's execution took longer, he adds that it really was "like watching a person fall asleep and not wake up again."...

Benn was babysitting her three granddaughters on July 9, 1998.  Her daughter, Carol Pikyavit, had been living with Benn along with her 2-year-old daughter, whom she shared with Honie, when Honie called.  He was drunk and angry, and at one point, threatened to kill everyone in the home and take their daughter if Pikyavit didn't make time to see him, court records say. Not taking the threat seriously, Pikyavit left the home and headed to work.

Honie headed to the house and began arguing with Benn.  Honie told police that Benn started the fight and was calling him names through a sliding glass door before he snapped, broke through the door and went inside. Benn had grabbed a butcher knife but was overpowered by Honie, who grabbed the knife and brought it to her throat, court records say. Honie says the two of them both tripped while the knife was at Benn’s throat and that she fell on the blade.

Police said Benn was found face down in the living room, with numerous “stabbing and cutting wounds” to her neck and genitals, according to court documents. Honie confessed to the murder, telling police that same night he had “stabbed and killed her with a knife,” USA TODAY reported.

All three grandchildren were found at the home with varying degrees of blood on their clothes and body.  There was also evidence that one of Benn’s granddaughters was sexually abused at some point, court documents say.  Honie was arrested, charged and convicted of aggravated murder.

Another comment on latest effort to have more on-topic, productive and polite comments

In this post just under two weeks ago in response to many complaints about off topic and uncivil comments, I sought to encourage more on-topic, productive and polite comments.  I sense all but a few folks welcomed and were eager to focus time and attention on on-topic, productive and polite comments relating to sentencing law and policy and to have fewer off topic and/or uncivil comments.  But, over the last two weeks, off topic and/or uncivil comments are still in various ways creating distractions (at least for me), and my efforts to respond to comments and emails on matters unrelated to discussions of sentencing law and policy have occupied time that I would much rather invest in discussions of sentencing law and policy (in new posts or in on-topic and productive comment threads).

Many folks through the years, in response to a wide variety of comments, have recommended that I turn on the moderation feature.  I am going to try that for a while to see if it enables me to spend more time on discussions of sentencing law and policy and less time on off topic and/or uncivil comments and reactions thereto.   We shall see if doing so helps me and the comment space spend more time on productive discussions of sentencing law and policy and less time on other distractions.

Texas completes its third execution of 2024

As reported in this AP piece, a "Texas man who claimed an intellectual disability in a late attempt at a reprieve was executed Wednesday evening for the killing of a woman who was jogging near her Houston home more than 27 years ago."  Here is more:

Arthur Lee Burton, 54, received a lethal injection at the state penitentiary in Huntsville and was pronounced dead at 6:47 p.m. local time.  He was condemned for the July 1997 killing and attempted rape of Nancy Adleman, a 48-year-old mother of three....

Adleman had been brutally beaten and strangled with her own shoelace in a heavily wooded area off a jogging trail along a bayou, police said. According to authorities, Burton confessed to killing her, saying “she asked me why was I doing it and that I didn’t have to do it.” He recanted this confession at trial.

Hours before the scheduled execution time, the U.S. Supreme Court declined a defense request to intervene after lower courts had previously rejected Burton’s request for a stay.  Burton’s lawyers had argued that reports by two experts and the records showed Burton “exhibited low scores on tests of learning, reasoning, comprehending complex ideas, problem solving, and suggestibility, all of which are examples of significant limitations in intellectual functioning.”  They had argued the evidence was a strong indication of an intellectual disability that made him “categorically exempt from the death penalty.”

Prosecutors, however, argued that Burton had not previously raised claims of an intellectual disability and that he had waited until eight days before his scheduled execution to do so.  An expert for the Harris County District Attorney’s Office, which prosecuted Burton, said in an Aug. 1 report that he had not seen any evidence Burton suffered from a significant deficit in intellectual or mental capabilities....

Burton was convicted in 1998 but his death sentence was overturned by the Texas Court of Criminal Appeals in 2000. He received another death sentence at a new punishment trial in 2002....

Burton was the third inmate put to death this year in Texas, the nation’s busiest capital punishment state, and the 11th in the U.S.

New US Sentencing Commission information resources just before USSC meeting to inform on new policy priorities and 2024 amendment retroactivity

I see from the US Sentencing Commission's website a couple of notable new resources:

• Selected Supreme Court Cases on Sentencing Issues (August 7): This document provides brief summaries of selected Supreme Court and appellate court cases that involve the guidelines and other aspects of federal sentencing.

• Sentencing Practice Talk Podcast Relaunch (August 7): In this highly anticipated return of Sentencing Practice Talk, Commission staff introduce listeners to the nuts and bolts of the HelpLine and share common guideline application questions.

These two helpful USSC resourses serve as a kind of a savory snack before the main Commission meal to be served up at the scheduled public hearing tomorrow afternoon with this official agenda:

• Report of the Chair
• Possible Vote to Adopt April 2024 Meeting Minutes
• Possible Vote on Final 2024–2025 Policy Priorities
• Possible Vote on Retroactivity of Certain 2024 Amendments
• Adjourn

Though there surely are many federal prisonsers, judges, prosecutors and defense attorneys quite eager to see the results of the expected vote on the retroactivity of certain 2024 guideline amendments, I am particularly eager to hear about the Commission's plans for its 2024–2025 policy priorities.  As I have noted in some prior posts, the the Commission, after two years of intricate work on a range of pressing issues, has sought comment and signalled its interest in taking a big-picture look at the full federal sentencing system and the Commission's own work therein.  The Commission received well over 1000 pages of comments, and I am wondering just how they plan to sort this all out.

Notably, over at the new Sentencing Matters Substack, former Justice Deparment and USSC ex-officio member Jonathan Wroblewski wrote this recent post on these matter titled "Reasoned Agency Decisionmaking and the Upcoming Announcement of the U.S. Sentencing Commission's Policy and Research Priorities for the 2024-25 Guideline Amendment Year."  I would recommend his post in full, and here is how it concludes:

I believe the Commission did a great thing in opening up the priority-setting process and soliciting such wide-ranging input.  It is an example of good government at work.

But as with most good deeds, this one will not go unpunished.  The Commission now owes it to those who took the time to answer its call, and also to Congress, the Executive Branch, and the public at large, to share with all of us, in some detail and reasoned explanation, its reaction to the recommendations and its choices on how it will proceed.  The Commission should, in light of everything it has now heard, set forth how — and why — it has charted a research and policy development course not just for the coming nine months, but for the next several years.  This is also part of good government and good agency practice — see, e.g., Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983) — and I hope it will be the written product of the Commission’s August 8th meeting.

Professors Berman, Chanenson, and I submitted our recommendations to the Commission too, which you can find immediately below.  We come down on the “broad systemic review” side of the recommendation spectrum, and we urge the Commission to engage in what the American Law Institute’s Model Penal Code: Sentencing refers to as an “omnibus review;” an examination of the Guidelines system, over the coming few years — and based on the experience of the last four decades — in order to forge a new era of federal sentencing policies and practices for the years ahead.

The Commission deserves credit for inviting us all in to be part of its research and policy making process.  But now, the Commission ought to transparently share with us what it thinks of all the ideas it has received and how it intends to shape the coming decades of federal sentencing research and policy.  This is part of what “reasoned decisionmaking” for an administrative agency is all about. Michigan v. EPA, 576 U.S. 743, 750 (2015).

Prior recent related posts:

• US Sentencing Commission sets out broad, general request concerning proposed priorities for 2024 to 2025 amendment cycle
• US Sentencing Commission releases over 1200 pages of public comment on proposed priorities

Two notable new sentencing-related papers in the new issue of the Journal of Empirical Legal Studies

I received an email today from the Society for Empirical Legal Studies providing the contents of the newest isse of the Journal of Empirical Legal Studies.  This link to the September 2024 issue was also provided, and I was pleased to see therein two sentencing-related papers (which are open access as of this writing):

"The impact of legal representation in Israeli traffic courts: Addressing selection bias and generalizability problems" by Rabeea Assy & Tomer Carmel

Abstract: This study investigates the impact of legal representation on the process and outcomes of legal proceedings, focusing on Israeli traffic courts dealing with simple traffic offenses.  It finds that legal representation significantly increased defendants' prospects of obtaining plea bargains and of avoiding demerits points.  However, legally represented defendants were also exposed to higher fines compared to self-represented defendants.  Since points are typically the primary concern for defendants, we contend that legal representation improved case outcomes, overall.  Considering the simplicity of the process, the minimal legal expertise required, and the low stakes involved, the representation effect was unexpectedly robust.  This effect may potentially be even stronger in more complex cases and where the stakes are higher.  Unlike previous observational studies, this study reduces the risks associated with selection bias and produces findings that are more credible and potentially generalizable to other contexts.

"The influence of the race of defendant and the race of victim on capital charging and sentencing in California" by Catherine M. Grosso, Jeffrey Fagan & Michael Laurence

Abstract: The California Racial Justice Act of 2020 recognized racial and ethnic discrimination as a basis for relief in capital cases, expressly permitting several types of statistical evidence to be introduced.  This statewide study of the influence of race and ethnicity on the application of capital punishment contributes to this evidence.  We draw on data from over 27,000 murder and manslaughter convictions in California state courts between 1978 and 2002.  Using multiple methods, we found significant racial and ethnic disparities in charging and sentencing decisions. Controlling for defendant culpability and specific statutory aggravators, we show that Black and Latinx defendants and all defendants convicted of killing at least one white victim are substantially more likely to be sentenced to death.  We further examined the role that race and ethnicity have in decision-making at various points in the criminal justice system.  We found that prosecutors were significantly more likely to seek death against defendants who kill white victims, and that juries were significantly more likely to sentence those defendants to death.  The magnitude of the race of the defendant and race of the victim effects is substantially higher than in prior studies in other states and in single-jurisdiction research.  The results show an entrenched pattern of racial disparities in charging and sentencing that privileges white victim cases, as well as patterns of racial disparities in who is charged and sentenced to death in California courts that are the natural result of California's capacious statutory definition of death eligibility, which permits virtually unlimited discretion for charging and sentencing decisions.  This pattern of racial preferences illustrates the social costs of California's failure to follow the Supreme Court's directive in Furman v Georgia to narrow the application of capital punishment over 50 years ago.

Second Circuit panel finds unreasonable 10-year prison sentence for federal prison guard who repeatedly raped inmate

I missed while on the road the notable Second Circuit panel ruling last week in US v. Martinez, No. 22-902-cr (2d Cir. July 30, 3034) (available here).  Though I do not keep up with all reasonableness rulings in circuit courts, I still believe it remains rare for federal circuits to find sentences unreasonable on appeal.  But Martinez is a case that lead to finding of both prosecural and substantive unreasonableness, and here is how the lengthy panel opinion starts:

Defendant-Appellant-Cross-Appellee Carlos Martinez, a former federal prison guard, was convicted after two jury trials in the United States District Court for the Eastern District of New York (Edward R. Korman, District Judge) of a number of charges stemming from his repeated rape of an inmate, whom the parties refer to as “Maria,” at the Metropolitan Detention Center (“MDC”) in Brooklyn, New York.  At both trials, Maria testified that Martinez raped her on five occasions while she was assigned to clean his office on weekends when that area was largely deserted. She testified that Martinez repeatedly sexually assaulted her by force (by physically holding her down) and threats and fear (by, for example, threatening to send her to a special housing unit (“SHU”) and warning her that fighting back would result in charges for assaulting an officer).

The jury at Martinez’s first trial found him guilty of five counts of sexual abuse of a ward, in violation of 18 U.S.C. § 2243(b) — one count for each rape. It also found him guilty of a number of other counts which were later vacated for reasons that are not at issue in the present appeal. At a second trial, Martinez was retried on fifteen counts arising out of the five rapes.  As to each rape, Martinez was charged with sexual abuse by threats or fear in violation of 18 U.S.C. § 2242(1); depriving Maria of her civil rights in violation of 18 U.S.C. § 242; and aggravated sexual abuse in violation of 18 U.S.C. § 2241(a)(1).  The jury convicted Martinez of five counts of sexual abuse by threats or fear, 18 U.S.C. § 2242(1).  The jury also convicted Martinez of depriving Maria of her civil rights, 18 U.S.C. § 242, and of aggravated sexual abuse, 18 U.S.C. § 2241(a)(1), but only as to the second of the five charged rapes; it acquitted him on those counts as to the other four incidents.

At sentencing, the district court expressed doubts about Maria’s testimony and later explained in its written statement of reasons that it disagreed with the second jury’s guilty verdicts on the five counts of sexual abuse through threats or fear — despite having previously denied Martinez’s motions for acquittal. The court also made several remarks suggesting that the second jury had not credited Maria’s testimony, even though the jury had returned guilty verdicts on at least one count relating to each of the five charged rapes.  It additionally described Martinez as “not a violent criminal,” Gov’t App’x 226, even though the jury had found beyond a reasonable doubt that, on one occasion, he had forcibly raped Maria.  At bottom, the court appeared to believe Martinez’s defense that he and Maria had engaged in consensual sex, a version of events necessarily foreclosed by the guilty verdicts.  The district court ultimately imposed a prison sentence of ten years, a dramatic variance below the advisory Guidelines range of life imprisonment.

Martinez now challenges the sufficiency of the evidence underlying his two convictions premised on using force to commit the second charged rape. We reject the insufficiency claim, because the jury was entitled to credit Maria’s testimony that Martinez physically restrained her to carry out that particular instance of sexual abuse. Martinez argues that his acquittals on some counts reveal that the jury must have completely rejected the victim’s testimony, but it is well established that a defendant cannot rely on inconsistent verdicts to impugn a conviction, and, in any event, the jury’s guilty verdicts decisively refute any contention that the jury entirely rejected that testimony.

The government cross-appeals Martinez’s ten-year sentence as procedurally and substantively unreasonable. We agree. The district court committed a number of procedural errors: It relied on certain 6 clearly erroneous factual findings that were foreclosed by the jury’s guilty verdicts, or that it mistakenly believed were dictated by the jury’s acquittals on other counts. It mistakenly treated Martinez’s convictions for committing sexual abuse through threats or fear as legally equivalent to committing sexual abuse of a ward, despite the fact that the former offense, unlike the latter, requires the sexual contact to have been without the victim’s consent. And it failed to effectively sentence him based on all of his convictions. The sentence was also substantively unreasonable because the district court gave dramatically insufficient weight to the seriousness of the full range of Martinez’s offenses, and impermissibly gave weight to its residual doubts about the jury’s guilty verdicts as a mitigating factor. We therefore AFFIRM the judgment of conviction and REMAND for resentencing consistent with this opinion.

Former Solicitor General Ted Olson, husband of 9/11 victim, says plea deal with 9/11 defendant was "best possible outcome"

The New York Times has this notable new piece with quotes from a notable lawyer about the (now revoked) plea agreement that would have taken away the possibility of a death sentence for the accused mastermind of the 9/11 attacks and two accomplices.  Here are excerpts:

A former solicitor general of the United States whose wife was killed on Sept. 11, 2001, said he was relieved to hear that a plea agreement had been reached in the case, and puzzled when the secretary of defense upended the deal.

Last week, a senior Pentagon official who oversees the military commissions signed a plea agreement with the man accused of planning the attacks and two other defendants. Then, two days later, Defense Secretary Lloyd J. Austin III rescinded it, stirring uncertainty in the case at Guantánamo Bay....

“I don’t think I can opine on whether the secretary of defense had the authority to do what he did,” Theodore B. Olson, the former solicitor general, said in an interview on Tuesday with The New York Times, breaking his silence on the plea deal. “But it does strike me as very unusual that someone with authority to enter into these negotiations would make a deal with these defendants and the government would turn around and renege on the deal, to abrogate the deal.”

His wife, Barbara K. Olson, 45, a conservative legal analyst, was a passenger on American Airlines Flight 77 and on her way to Los Angeles for a television appearance when the plane was flown into the Pentagon in the Sept. 11 attacks.

At the time of the attack, Mr. Olson was serving as President George W. Bush’s solicitor general, the top lawyer responsible for Supreme Court cases for the administration. He said he was informed last Wednesday that prosecutors had reached a plea agreement the same way as other Sept. 11 family members on a Defense Department roster: in an email.

Mr. Olson called the resolution reached “the best possible outcome.” “There was never going to be an enforceable death penalty anyway,” he said. “It was not going to happen and this was going to go on forever and ever.”...

Mr. Olson emerged as an influential voice in favor of plea agreements in February, as negotiations were continuing behind the scenes in the case. He declared the military commissions at Guantánamo Bay a failure — “We tried to pursue justice expeditiously in a new, untested legal system” — and said any capital conviction that emerged from the court was doomed to years of appeals.

Deep divisions exist among relatives of the 2,976 people who were killed that day over how they think the case should be resolved. Some family members and their supporters say nothing short of the execution of Mr. Mohammed should resolve the case. Others argue the United States lost its moral authority to execute the men because they were tortured by the C.I.A....

Increasingly, a third group has emerged arguing that it would endorse the death penalty but, after 12 years in pretrial hearings, a resolution of the case should be a top priority through plea negotiations, which necessarily take death off the table.

Mr. Olson was very sympathetic to family members who “wanted to pursue this to the end of the earth as far as the death penalty is concerned,” he said. “But I thought that was not going to be possible. This had been going on for 20 years.”

“The best resolution, and I know people would disagree with me, and I respect other people’s opinions on this, especially the families, the best possible resolution for this was to bring it to a close: They admit what they did, they agree to cooperate and their sentence is life imprisonment. Period.”

Prior recent 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
• US Defense Secretary overrules GITMO overseer to revoke plea agreement with 9/11 defendants
• Rounding up a few major press pieces about revoked 9/11 plea deals

"Defenseless: Lack of public defenders creates a crisis for indigent clients and increased caseloads for lawyers"

The title of this post is the title of this lengthy feature article in this month's ABA Journal. Here are some excerpts (with links from the original):

Oregon, like many states, is facing a crisis in public defense because of low pay, excessive caseloads, frequent burnout and a "great resignation" of qualified attorneys that began during the pandemic and shows no signs of ebbing....

The Oregon Project, a 2022 report issued by the ABA Standing Committee on Legal Aid and Indigent Defense and created with the accounting firm Moss Adams, estimated that Oregon was short nearly 1,300 attorneys to adequately provide counsel to those accused of crimes in the state.

That report was followed in 2023 by the National Public Defense Workload Study, a national study the ABA Standing Committee on Legal Aid and Indigent Defense and others completed with the help of the RAND Corp. that recommended a complete overhaul of national public defender caseload standards....

From the prosecutors' perspective, the crisis is making their job harder as well, says Charlie Smith, state's attorney for Frederick County, Maryland, and the immediate past president of the National District Attorneys Association.  Smith believes both prosecutors and public defender offices should be better funded and that more loan forgiveness programs are needed.  "The bottom line is, there's a shortage of lawyers in public service," Smith says.  "You have to compete with a smaller pool of law school graduates with large student loans.  A lot of them go into private practice."...

Other states are feeling the crunch in public defense and trying to address the crisis.  In 2022, the Wisconsin Association of Criminal Defense Lawyers sued Brown County on behalf of eight defendants whose cases languished for months waiting for assigned counsel — but a judge in September 2023 denied the class action.

Colorado's Office of the State Public Defender is asking the state legislature for an additional $14.7 million to fund 70 more attorneys and 58 paralegals and support staff — a significant boost, but well short of the 230 total new attorneys the office says will be needed to provide adequate representation based on the National Public Defense Workload Study.

Pennsylvania, which previously had a system of public defense funded exclusively by counties, in early 2024 dedicated the first state funds — $7.5 million in grants — to assist with public defense.  In Missouri, which in the past dozen years has worked to reform its system, a court ordered in 2023 that wait times for assigned counsel — which for almost 600 defendants had lasted more than a year — be limited to two weeks. 

Minnesota Gov Tim Walz, the veep pick by Prez candidate Harris, has his own notable criminal justice history

Multiple media outlets are now reporting that VP and Prez candidate Kamala Harris has chosen Minnesota Governor Tim Walz as her running mate.  I noted in this post last month that VP Harris was a distinctive nominee given her  extensive criminal justice experiences in California.  And, in his role as Governor of the North Star State, Tim Walz also has some notable criminal justice history. 

Of course, political science folks assert VP picks have very little or no impact on electorial outcomes.  But I am always inclined to believe that a VP can prove meaningful and perhaps even consequential on various policy fronts. Consequently, I think Gov Walz's criminal justice history is worth a brief note on the day of his selection (and maybe more in the future).

For starters, here are a few prior posts from this blog discussing sentencing reform enacted in Minnesota that were signed into law by Gov Walz:

• New Minnesota law provides for prison alternatives for veterans involved in lower-level offenses (from 2021)
• Minnesota through new legislation becomes 28th state to prohibit juve LWOP (from 2023)
• Spotlighting the development of prosecutor-led resentencing movement (from 2023)

In addition, from my other blog, "Minnesota poised to become 23rd state to legalize marijuana for adult use" (from 2023).

My understanding is that these posts discuss only a portion of the criminal justuce reforms that have become law in the North Star State in recent years.  Moreover, I suspect that Gov Walz's role as a member of the Minnesota Board of Pardons may be the activity that has most shaped his views on criminal justice issues.  This lengthy article from the New York Times about the Board's work, which I flagged in this prior post, has lots of notable passages, including these:

But formal forgiveness in Minnesota comes only through the pardon board and its de facto chairman, Gov. Tim Walz, 59, a retired high school teacher and former congressman. When he took office in 2019, his knowledge of his newfound pardon power came mostly from movies. “Theoretically, I understood,” he said. “Operationally, no idea.” Now, with eight rounds of pardon hearings behind him and two days of hearings before him, the governor better understood the heartwarming, heartbreaking realities of this power of his....

Hours later, his pardon work done, the governor would return to his office in the landmark State Capitol, where everything down to the gold-rimmed coaster beneath his can of Diet Mountain Dew underscored his role as the quasi-sovereign of Minnesota. Just as Jim Lorge, former meth dealer, had represented seekers of mercy through the ages, so, too, did Tim Walz stand for those empowered over the millennia to dispense it.

Sitting at a long mahogany table, the governor would recount certain moments from the last two days, moments of joy and of pain. He and his two board colleagues had granted 17 pardon requests, denied three others and left the three other imprisoned supplicants with some measure of relief. They had granted mercy and withheld mercy.

Could further lowering of drunk driving limits save thousands of lives in the US?

The question in the title of this post is prompted by this new New York Times piece headlined "How Much Alcohol Is Too Much for a Driver?  Experts argue the U.S. drunk-driving limit is too high."  I recoemmend the piece (and its many links) in full, and here are excerpts:

In late 2018, Utah lowered its drunk-driving limit from a B.A.C. (blood-alcohol content) of .08 to .05.  A year after the law was implemented, the National Highway Traffic Safety Administration found that fatal car crashes in the state had dropped by nearly 20 percent.

“Believe me, I never thought we would see a significant effect in Utah,” said James Fell, a principal research scientist who studies traffic safety at the independent research organization NORC, at the University of Chicago.  The state had one of the lowest impaired driving rates in the United States to begin with, he added.

Utah is currently the only state in the country with a .05 drunk-driving limit; everywhere else, the limit remains .08. But internationally, Utah is far from alone. Australia, France, Thailand and about 50 other countries have a B.A.C. limit of .05, and in more than 30 other countries, the limit is even lower.

With U.S. drunk-driving deaths rising in recent years (about 33 percent between 2019 and 2022, according to the most recent data), several other states — including New York, Washington, Hawaii and Connecticut — are now considering similar legislation to lower the legal driving limit.  “We’re losing, on the highways these days, more than 13,000 people a year,” said Thomas Chapman, a member of the National Transportation Safety Board. “I mean, it’s just an astonishing number.” In 2022, drunk-driving accidents accounted for 32 percent of all traffic fatalities.

The current national drunk-driving limit wasn’t established until 2000, when Congress passed a bill that required all states to set their B.A.C. limit at .08 in order to continue receiving federal highway funds.  Before then, some states used .08, while others used .10.  Even at that time, some researchers and advocates thought the limit should be as low as .05....

Experts say that the science strongly supports a lower B.A.C. limit.  Multiple studies testing people’s cognitive faculties when drinking have found that both sustained attention and multitasking are already impaired at .05.  People become drowsy at even lower levels of intoxication.  And on driving simulators used in a lab setting, people perform worse with any amount of alcohol in their system.

Looking at how these impairments affect people’s driving in the real world, one study reported that people with a B.A.C. of .05 had a 38 percent higher risk of getting into a car crash than those with no alcohol in their system; at .08, the risk rose to 169 percent.  And an analysis Mr. Fell conducted in 2017 estimated that lowering the legal limit nationally to .05 could reduce alcohol-related fatal crashes by 11 percent, saving nearly 1,800 lives per year....

According to the experts interviewed for this article, one of the main opponents is the hospitality industry, which argues that a B.A.C. limit of .05 would hurt restaurants and bars.... In Utah, there was little evidence that this happened. The National Highway Traffic Safety Administration report found that alcohol sales in the state continued on a steady upward trajectory from 2012 to 2020 and were not disrupted by the passage or implementation of the law. That study provided “important” evidence that a lower B.A.C. limit did not have a “negative impact on alcohol sales or tax revenues or tourism,” Mr. Chapman said.  Rather than drinking less, the report stated, people were more likely to find an alternate way home.

In approximately half of all fatal crashes involving alcohol, drivers have a B.A.C. of .15 or higher, so a lower limit may not deter the worst offenders any more than the current laws do.  However, it could influence those who are mindful of the limit but might not recognize when they are impaired.

Long time readers may recall that I have long supported lowering of BAC levels in drunk driving laws, in addition to a range of reasonable efforts (including sentencing sanctions like ignition locks), that have been consistently shown to reduce highway fatalities associated with drinking and driving.  (Here is post on this front from back in 2013 with lots of additional links.)  Even before our smart phone era, I never have felt it was too much to ask drinkers to find a safe way home other than driving.  And with Uber and Lyft now providing such an available means for always accessing a safe ride home, I hope many states will look to save lives and reduce other avoidable harms by lowering their drunk driving limits.  

Supreme Court rejects notable effort by MIssouri to stay Donald Trump's gag order and sentencing in New York

As reported in this CBS News piece, the "Supreme Court on Monday rejected a longshot bid by the state of Missouri to halt former President Donald Trump's impending sentence and lift the gag order imposed in the New York 'hush money' case until after the November presidential election." Here is more:

The high court denied Missouri's request to bring its case against New York, and dismissed a separate motion to pause Trump's sentencing in an unsigned order. There were no noted dissents. Justices Clarence and Samuel Alito said they would have granted the state's request to file a bill of complaint, but would not have granted the other relief Missouri sought....

In the request to halt Trump's sentence and temporarily lift the gag order, Missouri Attorney General Andrew Bailey, a Republican, claimed that New York prosecutors are attempting to interfere with Trump's campaign by using their "coercive power" in the form of the gag order and forthcoming sentence.

"Allowing New York's actions to stand during this election season undermines the rights of voters and electors and serves as a dangerous precedent that any one of thousands of elected prosecutors in other states may follow in the future," he wrote. "The public interest stands firmly with Missouri and the protection of the electoral process from this type of partisan meddling."

Bailey told the court that New York has interfered with Missouri's election process by impairing presidential electors' and voters' ability to see Trump on the campaign trail and hear him speak.  Even if Trump could schedule events in September and October, after his scheduled sentencing, the gag order would restrict what he could say at those rallies, Bailey claimed....

New York officials urged the Supreme Court to deny Missouri's attempt to halt Trump's sentence, arguing that the state is attempting to further Trump's individual interests, and that there is no role for the nation's highest court to play.  "Allowing Missouri to file this suit for such relief against New York would permit an extraordinary and dangerous end-run around former President Trump's ongoing state court proceedings and the statutory limitations on this Court's jurisdiction to review state court decisions," Attorney General Letitia James wrote in a filing.

James, a Democrat, argued that the actions Missouri challenges are not attributable to the state of New York, but rather the Manhattan district attorney, who is elected by voters in the county.  "Allowing Missouri to invoke this court's jurisdiction to interfere with the enforcement of criminal law in New York is contrary to these foundational principles and undermines New York's proud tradition of preserving the independence of local DAs," she wrote.

James also warned that Missouri's requested relief risks undermining the integrity of the courts and inviting a flood of similar litigation, which she called "unmeritorious."

The Supreme Court's short order rejecting Missouri's notable effort to secure a stay of New York’s gag order and impending sentence against Donald Trump is available at this link.

Rounding up a few major press pieces about revoked 9/11 plea deals

As noted in this prior post, US Defense Secretary Lloyd Austin late Friday revoked a plea agreement that took away the possibility of a death sentence for the accused mastermind of the 9/11 attacks and two accomplices.  I have seen a number of recent notable major press pieces about these developments, and here is a brief round up:

From the AP, "Sept. 11 families group leader cheers restoration of death penalty option in 9-11 prosecutions"

From The Hill, "Austin was ‘surprised’ by 9/11 plea deals, Pentagon says"

From the New York Times, "How the 9/11 Plea Deal Came Undone"

From Politico, "Republicans praise Austin’s reversal of the 9/11 plea deal, but some victims’ families just want closure"

From the Wall Street Journal, "Plea Deals for 9/11 Defendants Revoked, Leaving Cases in Limbo"

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

After Lymon, what might be next major Michigan state constitutional ruling limiting severe punishments?

I blogged here last week on the intriguing divided Michigan Supreme Court ruling in Michigan v. Lymon, No. 164685 (Mich. July 29, 2024) (available here), which held that Michigan's state constitution precluded putting people convicted of non-sexual crimes on the state's sex-offender registry.  The Behind the Bench Newsletter features that ruling in this new posting, titled "Will The Michigan Supreme Court Ban Death By Incarceration?", which merits reading in full.  Prompting the question in the title of this post, the entry noted that there are now "at least seven cases pending" on the Michigan Supreme Court's docket "that raise claims under the 'cruel or unusual' clause" in the Michigan consituttion.  Here is an extended excerpt (with links from the original):

In another win for state constitutional rights, the Michigan Supreme Court last week held that requiring someone without any sex-related convictions to register as a sex offender — something that, remarkably, most states do to some extent —violates the state’s ban on “cruel or unusual” punishment.  Central to the ruling were both the text of Michigan’s antipunishment clause — which, with its disjunctive formulation, is broader than the federal 8th Amendment’s “cruel and unusual” prohibition — and the state’s tradition of prioritizing rehabilitation as the primary goal of criminal sentencing....

The ruling in People v. Lymon will free about 300 people from the sex offender registry.  Beyond that, it further cements the Michigan Supreme Court as a national leader in building state antipunishment jurisprudence and expanding rights against extreme and needless punishments.  And that trend should continue: There are at least seven cases pending on the court’s docket that raise claims under the “cruel or unusual” clause, all touching on a common theme: will the court further limit lifetime punishments that, contrary to the state’s long constitutional history, “forswear[] altogether the rehabilitative ideal”?...

But in 2022, the Michigan Supreme Court revived its “cruel or unusual” jurisprudence with a series of rulings that protected youth and young adults from lifelong prison terms. In People v. Parks, the court banned mandatory life without parole sentences for people 18 and younger (raising the age under federal law by one year); in other cases it banned all life sentences for youth convicted of second degree murder and specified that there is always a presumption against life without parole sentences for youth — one that prosecutors must overcome with specific evidence. In each case, Michigan’s constitutional commitment to rehabilitation was central. “Rehabilitation is a specific goal of our criminal-punishment system,” the court said in Parks. “Indeed, it is the only penological goal enshrined in our proportionality test as a criterion rooted in Michigan’s legal traditions.”  

With last week’s decision in Lymon, the court reaffirmed and built on these cases, and it’s poised to do more in the next year.  The court’s docket includes more challenges to Michigan’s draconian sex offender registration law, including claims that lifetime sex offender registration and lifetime electronic monitoring constitute “cruel or unusual” punishment.  It will also consider further limits on death-by-incarceration sentencing—a practice that is by definition incompatible with rehabilitation.  It could apply Parks retroactively, to people with final convictions, and to all people under age 21; ban all life without parole — mandatory or discretionary — for youth under 18; and ban mandatory life without parole for people convicted under the so-called “felony murder rule” — an archaic legal doctrine that allows murder convictions and the most severe punishments even when there is no intent to kill. 

Collectively, these cases could restore hope to thousands — more than 1,000 people are serving life without parole for felony murder alone.  But they also raise a question: Will the court ultimately do with one clear holding what it has started to do piecemeal?  Will it recognize that, whatever their crime or age, sending people to die in prison without even the hope of release is cruel and conflicts with fundamental state constitutional rights? This year the Massachusetts Supreme Judicial Court made history by banning all life without parole sentences for anyone under age 21. The Michigan Supreme Court could be the first to ban them entirely.

Justice Gorsuch's new book seemingly a potent pitch for criminal justice reform

I believe that the new book co-authored by Justice Neil Gorsuch and Janie Nitze, which is titled "Over Ruled: The Human Toll of Too Much Law," is not officially available until later this week. But this New York Times piece featuring an interview with the Justice by David French suggests that criminal justice reform advocates will want to check out the book when it becomes available. Here is an excerpt from the interview:

French: It struck me that some of the stories here in the book, of the way in which the complexity of criminal law has impacted people, are among the most potent in making the point.  Is there a particular story about the abuse of criminal law that stands out to you as you’re reflecting back on the work?

Gorsuch: I would say Aaron Swartz’s story in the book might be one example. Here’s a young man, a young internet entrepreneur, who has a passion for public access to materials that he thinks should be in the public domain.  And he downloads a bunch of old articles from JSTOR.  His lawyer says it included articles from the 1942 edition of the Journal of Botany. Now, he probably shouldn’t have done that, OK?

But JSTOR and he negotiated a solution, and they were happy.  And state officials first brought criminal charges but then dropped them.  Federal prosecutors nonetheless charged him with several felonies.  And when he refused to plea bargain — they offered him four to six months in prison, and he didn’t think that was right — he wanted to go to trial.

What did they do?  They added a whole bunch of additional charges, which exposed him to decades in federal prison. And faced with that, he lost his money, all of his money, paying for lawyers’ fees, as everybody does when they encounter our legal system.  And ultimately, he killed himself shortly before trial.  And that’s part of what our system has become, that when we now have, I believe, if I remember correctly from the book, more people now serving life sentences in our prison system than we had serving any prison sentence in 1970.  And today — one more little item I point out — one out of 47 Americans is subject to some form of correctional supervision (as of 2020).

French: You speak in the book about coercive plea bargaining, this process where a prosecutor will charge somebody and then agree to a much reduced sentence on the condition that they don’t take it to trial, that they go ahead and plead guilty, or sometimes when they refuse to plead guilty, they’ll add additional charges.  This is something that a lot of critics of the criminal justice system have highlighted for some time.  Do you see a remedy?

Gorsuch: Well, I’m a judge, and I’m going to apply the laws we the people pass.  That’s my job.  In the book, I just wanted to highlight to “we the people” some of the changes that I’ve seen in our law during my lifetime, and plea bargaining during my lifetime has skyrocketed.  It basically didn’t exist 50 or 100 years ago, and now 97 percent or so of federal criminal charges are resolved through plea bargaining.

And I just have some questions.  What do we lose in that process?  We lose juries.  Juries are wise, right?  And they’re a check both on the executive branch and prosecutors and they’re a check on judges, too, right?  And the framers really believed in juries.  I mean, there it is in Article 3.  There it is in the Sixth Amendment. There it is in the Seventh Amendment.  They really believed in juries, and we’ve lost that.

And another thing about juries, when you lose juries: Studies show that people who sit on juries — nobody likes being called for jury service. But studies show that after jury service, people have a greater respect for the legal system, for the government, and they participate more in their local governments.

Latest episode of "Drugs on the Docket" podcast features USSC Chair Carlton Reeves

In this post, I highlighted that the Drug Enforcement and Policy Center at The Ohio State University had been releasing episodes from Season Two of the "Drugs on the Docket" podcast.  (All of the first season's episodes are all still available via Apple Podcasts and YouTube, where you can also find all released Season 2 episodes as well.)   And now, as detailed on this podcast webpage, we just recently released the fifth episode of this new season. 

This exciting new episode captures an extended discussion with Judge Carlton Reeves, Chair of the U.S. Sentencing Commission.  This discussion took place back in March not long after Judge Reeves had delivered the 2024 Menard Family Lecture on Drug Policy and Criminal Justice at The Ohio State University Moritz College of Law (which can be watched here).  Though taped a few months ago, the release of this episode seems especially timely because the Commission has scheduled this big public meeting for this coming Thursday, August 8, 2024, to discuss, inter alia, its priorities for the coming year.  In the podcast Judge Reeves discusses at length how the Cmmission goes about setting its priorities and other aspects of the agency's work. 

From the this podcast webpage, here is this episode's description along with  show notes:

Season 2 Episode 5 – A Special Conversation with the Honorable Carlton W. Reeves, Chair of the U.S. Sentencing Commission

Host Hannah Miller and co-host Doug Berman, executive director of the Drug Enforcement and Policy Center, speak with the Honorable Judge Carlton W. Reeves, Chair of the United States Sentencing Commission and U.S. District Court Judge for the Southern District of Mississippi. Judge Reeves discusses his role as Chair of the Sentencing Commission and the recent activities of the Commission, including efforts taken to reform the U.S. Sentencing Guidelines.

Show notes:

• United States Sentencing Commission (USSC) website
• Learn about the additional two ex-officio members of the United States Sentencing Commission in addition to the members noted in the episode
• Dealing in Lives: Imposition of Federal Life Sentences for Drugs from 1990–2020
• Alternatives to Incarceration, Problem-Solving Courts, and other resources by topic (USSC)
• Statement from the White House: President Biden Nominates Bipartisan Slate for the United States Sentencing Commission
• Schoolhouse Rock! episode, “I’m Just a Bill”