Sentencing Law and Policy

Effective update on impact and import of Fischer ruling on Jan 6 prosecutions

Politico has this informative new piece, headlined "Justice Department signals plan to salvage obstruction charges in some Jan. 6 cases," which  details some of the echoes of the Supreme Court's Fischer ruling a couple of months ago.  I recommend the piece in full, and here are excerpts:

The Justice Department said Wednesday it plans to press ahead with obstruction charges against two Jan. 6 defendants despite the Supreme Court’s recent ruling that limited the scope of a federal statute that makes it a felony to obstruct many government proceedings.

Prosecutors contended they can still prove that the two defendants, a married couple from Ohio, are guilty of obstructing Congress even under the high court’s narrow interpretation of the law. The defendants, Don and Shawndale Chilcoat, are accused of surging with the mob onto the Senate floor during the riot at the Capitol.

The Justice Department’s announcement in the Chilcoats’ case appears to be the first time since the Supreme Court’s June 28 ruling that prosecutors have signaled their intention to proceed with obstruction charges in any cases stemming from the Capitol riot.

Over the past seven weeks, the Justice Department has abandoned the obstruction charge in a slew of cases, citing the uncertainty caused by the Supreme Court. Prosecutors also have refrained from pursuing the charge in new cases. That has blunted an important cudgel for prosecutors: The obstruction charge carries a 20-year maximum sentence and has often been used to coax defendants into plea deals. The charge has also been used by the department to distinguish between those who simply paraded around the Capitol and those who broke in with a provable intent to interfere with Congress.

Before the Supreme Court weighed in, the Justice Department had charged more than 300 Jan. 6 defendants with “obstruction of an official proceeding” for their alleged roles in seeking to prevent Congress from certifying the results of the 2020 election. The charge was often the most serious that Jan. 6 defendants faced.

But in a 6-3 opinion that scrambled the justices’ usual ideological alignment, the Supreme Court ruled that the 20-year-old obstruction statute, passed in the aftermath of the Enron financial scandal, can apply only to defendants who took steps to impair physical evidence, like shredding documents or concealing them from investigators. The high court’s interpretation reversed lower-court rulings and roiled dozens of ongoing prosecutions stemming from the riot, particularly in cases where defendants faced no other felony charges.

In addition, federal judges released from prison a slew of defendants convicted of obstruction while they await further legal arguments about the future of their cases. In other Jan. 6 cases, particularly those involving defendants who scuffled with or impeded police, prosecutors have turned to a civil disorder charge in lieu of the obstruction count. That charge is also a felony but carries only a five-year maximum sentence....

Wednesday’s filing in the case against the Chilcoats confirms that prosecutors believe they have found ways to revive or sustain the obstruction charges in some cases. They say the evidence suggests the Chilcoats both knew that their incursion onto the Senate floor in the Capitol would prevent Congress from meeting on Jan. 6 to tally electoral vote certificates — the very physical evidence they say the obstruction law was meant to cover.

"Making Victims Relevant: Republican Freedom and the Justification of Criminal Punishment"

The title of this post is the title of this new paper authored by Alexandra Giannidi available via SSRN.  Here is its abstract:

Although punishment theories have overall been slow to incorporate the move towards victims’ rights, Braithwaite & Pettit’s republican theory has been a notable exception.  This paper is concerned with identifying the ways in which republican theory urges us to rethink the philosophy and practice of punishment, positioning victims at its centre, as well as with the theory’s evaluation.

According to republican theory, crime compromises the victim’s ‘dominion’, that is a type of freedom as non-domination thicker than freedom as non-interference.  In this context, punishment is justified as the rectification of the victims’ diminished dominion, through restorative justice practices backed by the threat of deterrence and incapacitation as a last resort.  It is argued that in linking the levels of justification and practice, republican theory renders the concept of ‘dominion’ indispensable to the development of a normative framework for victim-focused punishment, while avoiding the collapse of the criminal justice system into a system of tort law.

But does the turn to victims that the republican theorists envision come at a cost for offenders?  On the one hand, their conception of victim-focused punishment successfully integrates a principle of parsimony, thereby reconciling the interests of victims and offenders.  On the other hand, the pure consequentialist character of republican theory, reflected in the penal practices it envisions, is not easily reconcilable with the mandate for a stable protection of offenders’ rights and the principle of proportionality.  It is suggested that the way forward requires at the level of theory a synthesis between republicanism and versions of backward-looking justifications of punishment, and, at the level of practice, an effort to implement responses to crime which do not set up victims and offenders for a zero-sum game.

Former Prez Trump details his proposals for "tough new sentences on illegal alien criminals"

This new Daily Signal article, headlined "Trump Pledges Death Penalty for Criminal Illegal Aliens Found Guilty of ‘Child or Woman Sex Trafficking’," reports on some of the sentencing comments today of former Prez Donald Trump when he was speaking at the southern border.  Here are excerpts:

With completed border wall to his right and unused construction materials to his left, former President Donald Trump told reporters Thursday in Arizona that if he wins the Nov. 5 election and returns to office in January, he will impose the death penalty on sex traffickers.

“We will seal the border, stop the invasion, and launch the largest deportation effort in American history. We will impose tough new sentences on illegal alien criminals,” Trump said, adding that “these include: [a] 10-year mandatory minimum sentence for anyone guilty of human smuggling; a guaranteed life sentence for anyone guilty of child trafficking; and a death penalty for anyone guilty of child or woman sex trafficking.”

Trump named other crimes that should result in the death penalty, such as “killing our police, sheriffs, Border Patrol, ICE, or [other] law enforcement officials.”

“Federal law allows for prosecutors to seek the death penalty against child sex traffickers if the victim is killed, or a life sentence if the victim survives,” Charles “Cully” Stimson, deputy director of the Center for Legal and Judicial Studies at The Heritage Foundation, told The Daily Signal.

Some prior related posts:

• Former Prez Trump again talking up the death penalty as a way to address drug problems
• Spotlighting how a change in federal Administrations could lead to a big change in federal capital punishment administration 
• Noticing a notable capital shift in Democrats' campaign platform

"Legislatures and Localized Resentencing"

The title of this post is the title of this new paper available via SSRN authored by Ronald Wright and Kay Levine.  Here is its abstract:

Recent legislation, exemplified in statutes from California and Washington, creates new methods for resentencing defendants in old cases.  These laws place controlling authority for resentencing in the hands of local officials, especially local prosecutors, and invite variation at the county level.

While some new procedural channels for reducing the sentences of people convicted of past crimes are mandatory, in that they entitle certain defendants to resentencing if they were convicted of certain crimes or were subject to certain penalty enhancements that are no longer valid, other statutes create discretionary resentencing channels.  In the discretionary channels, the chief local prosecutor has the authority both to decide whether to participate in the program and to select individual cases for review.  Through original interviews and review of publicly available data, we highlight how this practice is working in California and Washington State.  We observe that when local prosecutors exercise their discretion under the new statute, they necessarily produce uneven results around the state, as some counties embrace resentencing practices, some use their power sparingly, and others leave it untouched.

This local variation is fully consistent with the legislative design.  In effect, these statutes grant to local officials certain powers previously associated with parole boards, but the practices are not synonymous with parole.  The statutory design also opens up a gridlocked political process; this grant of authority empowers the state’s most change-oriented prosecutors to act while more cautious prosecutors wait and see.

Noticing a notable capital shift in Democrats' campaign platform

HuffPost has this notable new piece noting a notable new shift in one party's platform on a notable old punishment.  The piece headlined "Democrats Scrub Death Penalty Opposition From Campaign Platform: For the first time in more than a decade, the Democratic Party platform includes no mention of abolishing the death penalty."  Here are excerpts from a piece covering a lot of interesting ground:

In 2016, the Democratic Party became the country’s first major political party to formally call for abolishing the death penalty.  The party’s platform that year, released in the aftermath of a high-profile botched execution, called the punishment “cruel and unusual,” “arbitrary and unjust,” expensive to taxpayers and ineffective in deterring crime.  The document also nodded to the people exonerated from death row as evidence of the risk that the government will kill innocent people.

During the 2020 campaign, the Democratic platform reiterated support for abolishing the death penalty.  When Joe Biden entered office the following year, he became the first president to publicly oppose capital punishment — a dramatic shift from his time in the Senate, when he once bragged that the sweeping crime bill he was pushing did “everything but hang people for jaywalking.”

However, as his term winds down, Biden has little to show for the party’s promise to abolish capital punishment.  On Monday, the Democrats approved their 2024 platform, which includes no mention of the death penalty.  This year’s platform marks the first time since 2004 the platform has not mentioned the death penalty (the 2008 and 2012 platforms called for making the punishment less arbitrary)....  The Democratic National Committee did not respond to an email asking if the party still supports abolishing the death penalty....

Meanwhile, Republicans are gearing up for another execution spree if Trump wins reelection.  Project 2025, an 887-page document outlining plans for a second Trump presidency released by a coalition of conservative groups, suggests that Trump execute every remaining prisoner on death row.  The document also envisions pursuing the death penalty in cases involving violence and sexual abuse of children.  In a footnote, the document notes that this would require convincing the Supreme Court to overrule its previous findings on when the death penalty is appropriate, but that “the [Justice] department should place a priority on doing so.”  Trump reportedly plans to announce his support for expanding the death penalty to non-homicide crimes....

In addition to dropping any mention of the death penalty, this year’s Democratic platform noticeably backs away from several criminal justice reforms the party embraced in 2020, when the police killing of George Floyd prompted nationwide protests against police brutality.  The criminal justice section of the 2020 platform opens by declaring that the system is “failing” to keep people safe and deliver justice.  It contrasts the promise of America as the “land of the free” with the reality that the U.S. has the highest rate of incarceration in the world and calls for “dramatically” reducing the number of people held in prisons and jails.

The 2020 platform includes support for several specific policies that are either absent from the 2024 platform or have been considerably toned down, including: ending life-without-parole sentences for people under 21, banning police from using chokeholds, decriminalizing cannabis, eliminating cash bail and repealing mandatory minimum sentences.

This year’s platform makes no mention of mass incarceration.  Instead, it describes the need to “fund the police” and touts DOJ funding for more police officers.  The platform claims Biden “took action to enhance public trust” by signing a “historic” executive order directing federal law enforcement agencies to ban chokeholds “unless deadly force is authorized” — a move described by civil rights groups as only a first step on police reform.

Prior related post:

• Spotlighting how a change in federal Administrations could lead to a big change in federal capital punishment administration 

Notable Third Circuit panel ruling rejects extending Bivens to address inmate abuse in federal prison

A lengthy new opinion by a Third Circuit panel in Kalu v. Spaulding, No. 23-1103 (3d Cir. Aug. 21, 2024) (available here), covers a lot of notable federal prison law and federal prison realities.  Here is how the opinion for the Court begins: 

Five decades ago, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court first authorized an implied damages remedy for constitutional claims brought against federal officials. Since then, in recognition of the Constitution’s separation of legislative and judicial power, the Court has greatly narrowed the availability of new Bivens actions. “At bottom, creating a cause of action is a legislative endeavor.” Egbert v. Boule, 596 U.S. 482, 491 (2022).

Here, appellant John O. Kalu, a federal inmate, seeks to bring Eighth Amendment claims against federal prison officials. He alleges a prison guard sexually assaulted him on three separate occasions, prison officers subjected him to inhumane conditions of confinement, and the prison’s Warden failed to protect him from the abuse through deliberate indifference. He seeks damages under Bivens to redress those harms. Heeding the Supreme Court’s recent and repeated warning that we must exercise “caution” before implying a damages remedy under the Constitution, see id.; Hernandez v. Mesa, 589 U.S. 93, 100–01 (2020), we decline to extend the Bivens remedy to Kalu’s claims. For the following reasons, we will affirm.

This panel opinion especially caught my eye because of a relatively short concurrence by Judge Restrepo, who is a Vice Chair on the US Sentencing Commission. Here is how his opinion gets started:

Although I agree with the Majority that this case presents a new Bivens context, I write separately to highlight the alarming reports of pervasive staff-on-inmate sexual abuse within the Bureau of Prisons and corresponding flaws in the administrative remedy process, and to note recent actions the Department of Justice, the United States Sentencing Commission, and Congress have taken since those findings were disclosed.

Lots of notable front page sentencing issues in next week's sentencing of Backpage

I have not closely followed the legal sagas that have surrounded the website Backpage, which was the huge classified advertising website shut down and seized by federal law enforcement in April 2018.  But next week the Backpage saga has a federal sentencing stage, and this Law360 piece provides a flavor for just some of the issues raised:

Prosecutors asked an Arizona federal judge Monday to sentence two former executives of the defunct classifieds service Backpage.com and the site's co-founder to 20 years in prison after they were found guilty of several counts over an alleged $500 million prostitution scheme.

In a sentencing memorandum, prosecutors said the crimes former executives Scott Spear and John Brunst and Backpage co-founder Michael Lacey were convicted of caused extraordinary harm and amounted to "one of the internet's largest and longest-running criminal empires."

Prosecutors say the website facilitated prostitution through ads. Spear and Brunst were convicted of multiple counts after a 28-day trial in November while two other executives were acquitted. Lacey was found guilty of one count of money laundering; the jury was deadlocked on dozens of other charges against him. The mixed verdict ended a sprawling case that saw its first trial end in a mistrial in 2021....

In April, U.S. District Judge Diane J. Humetewa rejected some of the jury's findings, tossing nearly three dozen transactional money laundering charges, as well as Travel Act charges against Lacey, but kept the rest of the verdict intact. Sentencing is scheduled for Aug. 27 and 28. Prosecutors said Monday they were "unaware of any mitigating circumstances" for the purposes of sentencing. Spear, Brunst and Lacey showed no remorse following their convictions, prosecutors said.... The prosecutors argued that victim impact statements submitted to the court don't fully encapsulate the harm Backpage inflicted, saying some trafficking victims were killed by perpetrators who found them on the site.

Lacey, Spear and Brunst all requested probation in their own sentencing memorandums filed Monday, arguing that they never intentionally broke the law. Lacey claimed that his only felony conviction was for a "financial crime that he purportedly committed upon the idea and advice of two credentialed lawyers, wherein all reporting rules were followed."....

Spear similarly said in his memorandum that his actions were in line with a law-abiding life.... Brunst said he was never employed by Backpage, but rather worked for Village Voice Media Holdings starting in 1992 and later at Medalist Holdings, a successor entity after VVMH sold its newspapers.

Over at Reason, the arguments surrounding one defendant get extra attention in a piece here headlined "Feds Seek 20-Year Sentence for Backpage Co-Founder Michael Lacey; It's an insane ask for someone convicted of just one nonviolent offense." Here is an excerpt:

Lacey was charged — along with other former Backpage executives — of using Backpage to knowingly facilitate prostitution, in violation of the U.S. Travel Act.  Two of the defendants were acquitted of all such offenses and two of the defendants were found guilty of some of them. But the jury could not reach a conclusion when it came to Lacey. U.S. District Judge Diane Humetewa found there was insufficient evidence to sustain most of the remaining 84 counts against him.

Now, prosecutors want the judge to simply act, for sentencing purposes, as if those charges are all true. Federal prosecutors are also putting Lacey on trial for these charges again — which means that if he is eventually convicted, he could wind up being sentenced twice for the same conduct.

This case and these defendants have many more notable elements, and I found reviewing some of the sentencing memoranda fascinating — eg, the government's memo reports that the PSR recommended 1080 months (90 years) for Spear, who is 73 years old.  Here, thanks to Law360, are the sentencing submissions:

•  US Memo
•  Spear Memo
•  Lacey Memo
•  Brunst Memo

"Rethinking the Role of Intentional Wrongdoing in Criminal Law"

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

It is a foundational assumption of the traditional mens rea hierarchy that the commission of intentional harm is and ought to be subject to greater criminal liability than actions which foreseeably result in risk of those same harms.  This Article questions the soundness of that assumption.  It argue that for many criminal offenses — particularly criminal homicide — a reluctant agent who purposefully causes harm to another person (even when that harm is deliberate and premeditated) will often nonetheless exhibit more concern for the well-being of their victims than a callous agent who acts recklessly, or even negligently, while indifferent to the harm they cause.  The Article uses this critical re-thinking of the standard mens rea hierarchy to show how we might amend current homicide doctrine to allow more proportionate criminal liability for non-intentional police homicides like Derek Chauvin’s killings of George Floyd, relative to reluctant purposeful defendants.

As part of that argument, the Article identifies and articulates an especially important set of ‘avoidance-commitments,’ which are manifested in the case of reluctant purposeful agents but absent in the case of callous agents, and which speak in favor of diminished liability for many purposeful agents relative to their reckless or negligent counterparts.  In so arguing, the Article highlights how the criminal law’s current mens rea hierarchy, while seemingly ideologically neutral, in fact evinces a commitment on the part of the state toward punishing more severely those who commit purposeful crimes of desperation, while excusing those in positions of wealth or power who commit non-intentional crimes of convenience, while unwilling or unmotivated to seek out or take easily available options to avoid wronging their victims.  Failure to be clear-eyed about such commitments creates a further barrier to recognizing the true moral magnitude of failures by police officers to recognize the humanity of those they police, and to designing a legal regime that effectively assigns criminal liability accordingly. 

Notable battle over death row defendant's innocence claim in Missouri

The New York Times has this new piece, headlined "Prosecutors to Face Off Over Innocence Claim by Prisoner on Death Row," reporting on the people behind a notable legal fight surrounding a defendant scheduled to be executed by the state of Missouri next month.  Here is how it starts:

A man facing execution in Missouri next month will be in court on Wednesday for what could be his last chance to prove his innocence.

The guilt of the man, Marcellus Williams, has been challenged for years, and he has come close to execution twice. But the hearing on Wednesday in St. Louis County will be the first time that a court will consider DNA evidence that could exonerate him.

The case is notable because it has put two law enforcement officials, the local prosecutor and the state attorney general, on opposite sides. The prosecutor, Wesley Bell, supports Mr. Williams’s bid for exoneration and has filed a 63-page motion to overturn his conviction. The attorney general, Andrew Bailey, has argued that Wednesday’s hearing should not even take place.

Mr. Bell, a Democrat, recently defeated U.S. Representative Cori Bush in the Democratic primary for her House seat in a heavily Democratic district, so he will very likely be heading to Congress in January. Mr. Bailey, a Republican who was appointed to his office midterm to fill a vacancy, fended off a primary challenge this month and is also likely to win the general election in the deeply red state.

In his short time in office, Mr. Bailey has opposed three wrongful-conviction claims, going so far as to try to keep people in prison after they have been exonerated. In the Williams case, he has asked both the trial court and the State Supreme Court to block the hearing.

UPDATE: Thanks to a helpful commentor, I see there is new breaking news in this case: "Missouri death row inmate agrees to new plea in deal that calls for life without parole." The latest:

A Missouri death row inmate on Wednesday dropped his innocence claim and entered a new no-contest plea in an agreement that calls for a revised sentence of life in prison without parole.

But the Missouri Attorney General’s Office opposes the new consent judgment and will appeal in an effort to move ahead with the scheduled Sept. 24 execution of Marcellus Williams.

ANOTHER UPDATE: Via CBS/AP, "Missouri Supreme Court blocks agreement that would have halted execution of death row inmate Marcellus Williams"

Brennan Center produces short piece "Analyzing the First Step Act’s Impact on Criminal Justice"

I was pleased to see today that the Brennan Center for Justice released this short new "analysis" on the First Step Act titled "Analyzing the First Step Act’s Impact on Criminal Justice."  Though I was hoping that the piece might include some considerable new or detailed "analyzing" of how the First Step Act has impacted justices systems now nearly six years after its passage, this document is really just an overview of the major provisions of the Act along with a review of some basic data on the Act's early implementation from various sources. 

Still, though I was eager to see more, this Brennan Center document provides a clear and effective primer on many key aspects of the First Step Act and on some key implementation data and issues.  In addition, hyperlinks embedded in the report effectively provide ready accesss to a number of major government reports about the First Step Act's implementation.  Though there is a whole lot more that can and should be said about the "First Step Act’s Impact on Criminal Justice," this report still serves as an effective overview resource (especially given what I perceive to be the relative paucity of other writings about the First Step Act by either academics or advocates).  

Notable prison releases in the UK to deal with prison overcrowding

I generally do not keep up with international crime and punishment stories, but this new story and headline from across the pond caught my eye: "Union warns of probation officer shortage ahead of prisoners’ early releases;  Up to 2,000 offenders due to be freed in England and Wales in September after serving 40% of sentence."  Here are some details:

Ministers will struggle to prepare for next month’s early release of thousands of prisoners, a union has warned, after the latest figures showed a drop in the number of probation officers. Ministry of Justice data shows there were 178 fewer probation officers over the last quarter, as the service gets ready to monitor another 5,500 prisoners released over the next year despite deepening concerns over increased workloads for staff.

Up to 2,000 prisoners are expected to be released in the second week of September as part of an early release scheme, called SDS40, which will allow many prisoners to walk from prison after serving 40% of their sentences. A second tranche of up to 1,700 prisoners, all jailed for more than five years, are expected to be freed in late October after the law was changed by the lord chancellor, Shabana Mahmood, to relieve pressure on overcrowded prisons....

On Monday, the government said it would launch Operation Early Dawn, a longstanding plan that means defendants waiting for a court appearance can be held in police cells for longer until prison space is available.

The emergency scheme has been announced as hundreds of rioters are jailed in the wake of unrest this summer. The director of public prosecutions has said the criminal justice system requires “considerable investment” as the jailed rioters continue to put pressure on overcrowded prisons.

There are, I surmise, lots of political and practical backstories here that have contributed to the state of UK punishment laws and practices. Here are a couple of recent press pieces that perhaps provide some useful context:

From the Financial Times, "How ‘sentencing inflation’ fuelled England’s prisons crisis"

From the New York Sun, "U.K. To Release Thousands From Overcrowded Prisons Following Surge of Arrests During Anti-Immigration Riots"

"Disparities in Sentencing: Creating a "Benchcard" on Brain Development to Incorporate Neuroscience Research"

The title of this post is the title of this new article posted to SSRN authored by Stevie Leahy. Here is its abstract:

This article explores the disparities in juvenile sentencing across the United States, with a focus on the implications of the Supreme Court's decision in Jones v. Mississippi (2021) and the importance of incorporating neuroscience research into legal decisions.  It highlights how different jurisdictions handle juvenile life without parole (JLWOP) sentences, leading to significant inconsistencies based on geography.  The article advocates for the development of a “benchcard” that would guide judges in making informed decisions by integrating the latest scientific understanding of brain development, particularly concerning individuals up to age 25.  By examining the evolution of legal protections for juveniles and the role of the prison industrial complex, the article argues for a more equitable legal approach that considers the developmental differences of young offenders.

You be the federal judge: what sentence for former US Rep George Santos after his plea to fraud and identity theft?

The remearkable saga of former US Congressman George Santos closed one chapter in the same manner as many federal criminal prosecutions, namely with a guilty plea to a few of many charged counts.  But what sentence should shape the next chapter of the Santos saga?  This press release from the U.S. Attorney's Office in the Eastern District of New York, headed "Former Congressman George Santos Pleads Guilty to Wire Fraud and Aggravated Identity Theft," provides all sorts of details about Santos's misdeeds and starts with these basics:

Santos Admits He Filed Fraudulent FEC Reports, Embezzled Funds from Campaign Donors, Charged Credit Cards Without Authorization, Stole Identities, Obtained Unemployment Benefits Through Fraud, and Lied in Report to the House of Representatives

Earlier today, in federal court in Central Islip, former Congressman George Anthony Devolder Santos pleaded guilty to committing wire fraud and aggravated identity theft.  The proceeding was held before United States District Judge Joanna Seybert.   When sentenced, Santos faces a minimum sentence of two years’ imprisonment and a maximum sentence of 22 years’ imprisonment. As part of the plea Santos will pay restitution of $373,749.97 and forfeiture of $205,002.97.  Santos was initially charged in May 2023, and a superseding indictment charging Santos with additional crimes was returned in October 2023.

This USA Today article provides some context and more sentencing details:

Former Rep. George Santos, R-N.Y., who was expelled from the House of Representatives after being indicted on 23 federal counts including fraud and misusing campaign funds, pleaded guilty Monday in federal court to two of the charges.

The Long Island Republican faces a mandatory two-year minimum sentence after pleading guilty to wire fraud and aggravated identity theft.  But Judge Joanna Seybert estimated the term could range from six to eight years behind bars when he is sentenced on Feb. 7, 2025.  Santos also agreed to pay nearly $374,000 in restitution and to forfeit $205,000.

Santos had faced trial in September on charges including laundering campaign funds to pay for his personal expenses, charging donors' credit cards without their consent, and receiving unemployment benefits while he was employed. "I deeply regret my conduct and the harm it has caused and accept full responsibility for my actions," Santos said in a shaky voice in court.

Prosecutors said Santos told the truth about his criminal schemes for what seemed like the first time since campaigning for Congress. “He admitted to lying, stealing and conning people,” U.S. Attorney Breon Peace said in a statement. “His flagrant and disgraceful conduct has been exposed and will be punished."...

"Moving forward, I am dedicated to making amends for the wrongs I have committed," Santos told reporters outside the courthouse. "This plea is not just an admission of guilt, it is an acknowledgment that I need to be held accountable, like any other American that breaks the law."

So, dear readers, Santos himself says he needs "to be held accountable." How would you punish him to hold him accountable?

"Primary crime-related outcome indicators associated with recreational cannabis legalization: a comprehensive literature and data review"

The title of this post is the title of this new paper recently published in the journal Crime, Law and Social Change and authored by Benedikt Fischer, Tessa Robinson and Hans-Jörg Albrecht.  Here is its abstract:

Cannabis policies are increasingly being liberalized, including the implementation of formal legalization policies of non-medical use and supply in multiple jurisdictions (initially in the Americas) towards improved public health and safety objectives.  While focus on health indicators has shown mixed or adverse outcomes, less attention has been given to social-legal — and specifically crime-related — outcomes of legalization.  We conducted a comprehensive literature and data review of key crime-related outcomes associated with non-medical cannabis legalization in four main domains, based on targeted searches of recent academic (e.g., journal publication) and ‘grey’ English-language literature sources: 1) cannabis-related crimes and enforcement, and other crimes; 2) cannabis-impaired driving and related motor-vehicle-crashes; 3) cannabis sourcing by consumers; and 4) cannabis market evolution and dynamics. The data identified were extracted, organized and narratively summarized by topic.

The data reviewed suggest that cannabis-related crimes and enforcement have substantially decreased, yet arbitrary (e.g., racialized) enforcement patterns — involving both adults and youths — commonly persist in legalization settings; evidence for ecological effects on other (e.g., property, violent) crimes is mixed.  The prevalence of cannabis-impaired driving does appear to be steady or decreasing, while levels of cannabis involved in motor-vehicle-crashes, and overall motor-vehicle-crash fatality levels appear to have increased.  In North American legalization settings, the legal sourcing of cannabis has gradually increased to involve 50–70% or more of consumers alongside expanding legal retail market proliferation, while found to be influenced by multiple factors (e.g., product characteristics, price, use intensity).  Conversely, legal cannabis sourcing remains much more limited in Uruguay’s restrictive settings.  Data on the evolution of illegal cannabis markets is very limited, suggesting some evidence for reductions of illegal production but also shifts or displacement effects (e.g., towards production for or distribution in non-legalization settings), leaving open questions as to the impacts of legalization in these domains.  Overall, legalization appears to be meeting some of its socio-legal and specifically crime-reduction goals, yet while key data indicators are mixed or lacking. Focused and expanded research on crime-related outcomes of legalization policies is needed, also given limited benefits to date evidenced for health outcomes.

US Sentencing Commission releases updated "Compassionate Release" data report

I flagged in this recent post the US Sentencing Commission's latest release of new sets of its terrific "Quick Facts" publications with updates drawing on the USSC's full fiscal year 2023 data. But I did not want to forget that the USSC also now has available on this data page its latest "Compassionate Release" data report. Specifically, the USSC describes its "FY 2024 Third Quarterly Report (Published August 15, 2024)" this way:

This report provides an analysis of the compassionate release motions filed with the courts and decided through the third quarter of fiscal year 2024. Table 1 and Figure 1, combine this data with data on compassionate release motions from prior fiscal years to facilitate trend analyses. The data in this report is limited to motions for which the Commission received or obtained court documentation and completed its analysis by August 9, 2024.

Table 1 of this data report reinforces my sense that a rough steady pattern now emerged in recent years for sentence reduction motions in federal courts, with each month a few hundred motions being resolved and a few dozen being granted.

Over at the Sentencing Matters Substack, a few of us have been writing about second-look sentencing more generally.  Here are a couple of the most recent posts in this arena:

"Bryan Stevenson, Second Looks, and Lasting Reverberations"

"Should Second Look Efforts Focus Particularly on Drug Offense Sentences?" 

"Racially Disparate and Disproportionate Punishment of Felony Murder: Evidence from New York"

The title of this post is the title of this new paper authored by Alexandra Harrington and Guyora Binder now available via SSRN. Here is its abstract:

America’s peculiar institution of felony murder liability has long been criticized as cruel and pointless, particularly as applied to defendants who did not kill.  Yet data collection practices in the criminal legal system make felony murder difficult to study empirically.  This article presents recently uncovered evidence of the racially disparate application of felony murder law, as well as increased disparities for those who have been convicted as accomplices.  This study of felony murder arrest and disposition in New York is one of the first to reach beyond dispositions to examine the behavior punished, and to thereby compare patterns in arrest, prosecution, and conviction of accused principals with accomplices not alleged to have killed. 

This study is also one of the first to report the surprising scale of liability under felony murder law for individuals who did not kill — half of all people convicted of felony murder in the years measured — as well as for people who appear to have caused death inadvertently.  It finds substantial racial disparities in arrests and convictions for felony murder compared to other forms of second-degree murder.  These disparities are starker for teens, who make up at least a quarter of the dataset.  Finally, it uncovers a shocking phenomenon: hundreds of arrests — mostly concentrated in New York City — of almost exclusively Black and Hispanic people for the fictitious crime of attempted felony murder.  In New York, it seems, the worst of felony murder is reserved for defendants of color.