Sentencing Law and Policy

"'Everything is technology': examining technology access and use among returning citizens"

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

Digital exclusion is a barrier for people on parole, herein referred to as returning citizens.  Yet, much remains unknown about the specific issues they encounter. As the world continues to advance technologically, it is important that we understand returning citizens’ access to and use of technology and how it impacts their ability to reintegrate into society. Framed in the Digital Rehabilitation Model, the current study uses qualitative data from 28 returning citizens to explore their digital exclusion across time since release from prison.  Findings show that returning citizens released less than a month to 24 months ago more often described technology-related challenges.

New ACLU memo paints rosy vision of "Harris on the Criminal Legal System"

In this post last month, I flagged (and threw some shade on) one of a series of "roadmap" documents ALCU has produced on various issues looking toward the next presidential administration.  That document, titled "Trump on the Criminal Legal System," painted a  dark picture of the prospects of "Trump’s efforts to bring in a new wave of mass incarceration."  Now the ACLU has just released this parallel memo in this series, titled "Harris on the Criminal Legal System," which contends a Harris Administration "could have a significantly positive impact on America’s justice system."  Here is how this 12-page document begins:

Democratic nominee Vice President Kamala Harris has comprehensive knowledge of the criminal justice system and a demonstrated record of a commitment to reform.  While Harris may not be aligned with all of the ACLU’s positions on criminal law reform, there is nonetheless considerable overlap and synergy.

Before she was elected to the Senate, Harris served as an assistant district attorney and district attorney for the city of San Francisco, and as attorney general for the state of California.  As a district attorney, Harris established a reentry program focused on removing barriers to housing, education, and employment.  As an attorney general, she created an office to address the rights of children in the juvenile justice system.  Later as a senator, Harris championed progressive legislation to address police transparency and accountability and to address disparities created by the war on drugs.

To be clear, Harris has a mixed record on criminal law reform.  For instance, her position on the death penalty has shifted over time.  As district attorney, she demonstrated fidelity to campaign promises when she declined to seek the death penalty.  But, under her leadership as attorney general, her office defended the death penalty in California after a court found it to be unconstitutionally arbitrary.  That said, Harris’ most recent work in the Senate to reform the criminal legal system is encouraging.  If she continues this path, she could have a significantly positive impact on America’s justice system.

This year also marks the 30th anniversary of the 1994 Crime Bill, which presents Harris with an opportunity to renounce the failed policies that drove mass incarceration and to embrace reform to end racial disparities and move toward a more humane system for all.  The ACLU will continue our advocacy for such meaningful reform.  We will push the Harris administration to expand progressive reform efforts and challenge draconian approaches to criminal legal policy.

Prior related post:

•  New ACLU memo paints dark vision of "Trump on the Criminal Legal System"

Florida completes execution of man 30 years after murder and rape of siblings

As reported in this AP article, a "A Florida man convicted of killing a college freshman and raping the murder victim’s older sister while the siblings camped in a national forest 30 years ago was executed Thursday."  Here is more:

Loran Cole, 57, received a lethal injection and was pronounced dead at 6:15 p.m. at Florida State Prison for the 1994 killing of the 18-year-old student. Cole also was serving two life sentences for rape.

Cole and a friend, William Paul, befriended the two college students in the Ocala National Forest, court records showed. After talking around a fire, the men offered to take the siblings to see a pond.  While away from the campsite, Cole and Paul jumped the victims and robbed them, according to the records.

The brother, 18, who was a student at Florida State University, was beaten and had his throat slit and left in the forest.  His sister, then a 21-year-old senior at Eckerd College, was taken back to the campsite, where Cole tied her up and raped her, according to the record.  The woman was left tied to a tree overnight and raped again the next day. She eventually managed to free herself and flagged down a driver for help.  Police found her brother’s body lying face down on the ground, according to court records.

Paul and Cole were both convicted of first-degree murder.  Paul was sentenced to life in prison....

The U.S. Supreme Court denied Cole’s final appeal earlier Thursday.  His lawyers had raised several points in seeking a stay of execution, including the fact that Cole was an inmate at a state-run reform school where he and other boys were beaten and raped.  The state has since apologized for the abuse and this year passed a law authorizing reparations for inmates at the now-shuttered reform school.  The lawyers also argued Cole shouldn’t be executed because he was mentally ill and had brain damage and Parkinson’s disease.

Notable new Pew Research Center report on "Americans’ Experiences With Local Crime News"

The Pew Research Center released today this big new survey/report intended to enable us "to better understand how U.S. adults get local crime news and information" and based on a "survey of 5,146 U.S. adults [that] was conducted from January 22 to 28, 2024."   The report is so extensive and intricate, I find it hard to take in or assess all the findings.  Helpfully, via multiple webpages, the Pew folks break down many of the details in this lengthy postings:

Americans’ Experiences With Local Crime News

Sources of local crime news

Types of local crime news

Quality of local crime news

How Americans respond to local crime news

 

"Opening the Virtual Window: How On-line Processes Could Increase Access to Justice in the Criminal Legal System"

The title of this post is the title of this recent paper authored by Amy Schmitz and Cynthia Alkon availabke via SSRN. Here is its abstract:

This article explores the potential of technology to improve access to justice (A2J) in criminal courts, specifically for nonviolent misdemeanor cases.  Despite a push for innovation in courts, criminal courts have been slow to embrace change and technological innovation due to factors like constitutional constraints and funding limitations.  This article argues that criminal courts need "virtual windows" alongside traditional "brick and mortar doors" to enhance A2J.  It proposes a problem-solving approach focusing on misdemeanor cases, a high-volume category where technology can have a significant impact.  The paper highlights the importance of ensuring defendants make "knowing and intelligent" pleas despite the often-real consequences of misdemeanor convictions.  The analysis also proposes a "green light, yellow light, red light" framework to categorize technologies based on their potential to improve A2J vs. the dangers they pose for defendants.  Notably, the article acknowledges the digital divide but argues that the increasing prevalence of mobile devices and internet access necessitates exploring technological solutions for lowering barriers to justice.  The paper concludes by calling for the adoption of "green light" technologies to improve A2J in misdemeanor cases, while acknowledging the need for thoughtful implementation to avoid unintended consequences. It also suggests further research with respect to “yellow light” ideas that may be worth further exploration with an aim toward furthering fairness and A2J.

US Sentencing Commission releases more updated "Quick Facts" publications on more economic offenses

The US Sentencing Commission is continuing to release new sets of its "Quick Facts" publications with updates drawing on the USSC's full fiscal year 2023 data. I have flagged these new updated Quick Facts in recent posts  here and here, and the USSC just this week released these additional "Quick Facts"  on additional economic offenses:

• NEW Tax Fraud (August 2024)
• NEW Health Care Fraud (August 2024)
• NEW Government Benefits Fraud (August 2024)
• NEW Credit Card and Other Financial Instrument Fraud (August 2024)

Backpage founders and executives sentenced to 5 and 10 years, well below what federal prosecutors' urged

I flagged here last week some issues surrounding the federal sentencing of the persons who founded and helped run the website Backpage.  This AP article reports on how these issues played out, and here are excerpts:

Michael Lacey, a founder of the lucrative classified site Backpage.com, was sentenced Wednesday to five years in prison and fined $3 million for a single money laundering count in a sprawling case involving allegations of a yearslong scheme to promote and profit from prostitution through classified ads.

A jury convicted Lacey, 76, of a single count of international concealment money laundering last year, but deadlocked on 84 other prostitution facilitation and money laundering charges. U.S. District Judge Diane Humetewa later acquitted Lacey of dozens of charges for insufficient evidence, but he still faces about 30 prostitution facilitation and money laundering charges.

Authorities say the site generated $500 million in prostitution-related revenue from its inception in 2004 until it was shut down by the government in 2018.  Lacey’s lawyers say their client was focused on running an alternative newspaper chain and wasn’t involved in day-to-day operations of Backpage.  But Humetewa told Lacey during Wednesday’s sentencing he was aware of the allegations against Backpage and did nothing....

Two other Backpage executives, Chief Financial Officer John Brunst and Executive Vice President Scott Spear, also were convicted last year and were each sentenced on Wednesday to 10 years in prison....

Prosecutors said the three defendants were motivated by greed, promoted prostitution while masquerading as a legitimate classified business and misled anti-trafficking organizations and law enforcement officials about the true nature of Backpage’s business model.  Yvonne Ambrose, whose 16-year-old daughter Desiree Robinson was trafficked in Chicago on Backpage and killed in 2016 by a man who answered an online sex ad, told the judge on Tuesday about the pain she feels from her daughter’s death....

Authorities say Backpage employees would identify prostitutes through Google searches, then call and offer them a free ad.  The site also is accused of having a business arrangement in which it would place ads on another site that lets customers post reviews of their experiences with prostitutes.

The site’s marketing director has already pleaded guilty to conspiring to facilitate prostitution and acknowledged that he participated in a scheme to give free ads to prostitutes to win over their business.  Additionally, the CEO of the company when the government shut the site down, Carl Ferrer, pleaded guilty to a separate federal conspiracy case in Arizona and to state money laundering charges in California.  Two other Backpage employees were acquitted of charges by a jury at the same 2023 trial where Lacey, Brunst and Spear were convicted of some counts....

A Government Accountability Office report released in June noted that the FBI’s ability to identify victims and sex traffickers had decreased significantly after Backpage was seized by the government because law enforcement was familiar with the site and Backpage was generally responsive to requests for information.

Prosecutors said the moderation efforts by the site were aimed at concealing the true nature of the ads.  Though Lacey and Larkin sold their interest in Backpage in 2015, prosecutors said the two founders retained control over the site.

Fifth Circuit panel declares unconstitutional application of federal prohibition on gun possession by “unlawful user” of controlled substances

A Fifth Circuit panel today declared unconstitutional a federal gun possession prohibition as applied to a "non-violent, marijuana smoking gunowner." The unanimous panel ruling in US v. Connelly, No. 23-50312 (5th Cir. Aug. 28, 2024) (available here), starts and ends this way:

Paola Connelly is a non-violent, marijuana smoking gunowner.  El Paso police came to her house in response to a “shots fired” call. When they arrived, they saw John, Paola’s husband, standing at their neighbor’s door firing a shotgun. After arresting him, they spoke with Paola, who indicated that she would at times smoke marijuana as a sleep aid and for anxiety. A sweep revealed that the Connellys’ home contained drug paraphernalia and several firearms, including firearms owned by Paola.  There was no indication that Paola was intoxicated at the time.

Paola was charged with violating: (1) 18 U.S.C. § 922(g)(3) by possessing firearms and ammunition as an unlawful user of a controlled substance, and (2) 18 U.S.C. § 922(d)(3) by providing firearms and ammunition to an unlawful user of a controlled substance. Paola argued in a motion to dismiss, and the District Court ultimately agreed, that §§ 922(g)(3) and 922(d)(3) were facially unconstitutional and that § 922(g)(3) was unconstitutional as applied to her under the Second Amendment.

This appeal asks us to consider whether Paola’s Second Amendment rights were infringed, and the answer depends on whether § 922(g)(3) is consistent with our history and tradition of firearms regulation.  The short of it is that our history and tradition may support some limits on a presently intoxicated person’s right to carry a weapon (and for that reason Paola’s facial challenges to §§ 922(g)(3) and 922(d)(3) fail), but they do not support disarming a sober person based solely on past substance usage.  Nor, contrary to what the government contends, do restrictions on the mentally ill or more generalized traditions of disarming “dangerous” persons apply to nonviolent, occasional drug users when of sound mind.  We AFFIRM as to Paola’s as-applied challenge and REVERSE as to her facial challenges....

Paola’s § 922(g)(3) charge is inconsistent with our history and tradition of firearms regulations for the reasons discussed above, so we AFFIRM the judgment of dismissal as to her as-applied challenge.  But that holding is narrow. There undoubtedly exist circumstances where § 922(g)(3) may apply constitutionally, such as when it bans a presently intoxicated person from carrying firearms, so we REVERSE as to Paola’s facial challenge.  Finally, we REVERSE as to Paola’s facial challenge to § 922(d)(3).

"Prosecutorial Reform and the Myth of Individualized Enforcement"

The title of this post is the title of this new article authored by Justin Murray now available via SSRN. Here is its abstract:

The American prosecutor’s legitimacy faces unprecedented challenges.  A new wave of reformist prosecutors has risen to power promising to transform the criminal justice system from within, sparking fierce backlash from defenders of the prosecutorial status quo.  Central to this conflict is a debate over the nature of prosecutorial discretion, influenced by a set of claims and assumptions that this Article terms the myth of individualized enforcement.  This myth posits that prosecutors base discretionary decisions on case-specific facts and equitable circumstances rather than generalizable criteria or categorical nonenforcement practices, such as the policies some reformist prosecutors have adopted that disfavor prosecuting marijuana possession or abortion offenses or seeking the death penalty.

This Article is the first to identify and critically examine the myth of individualized enforcement.  It draws on a review of historical evidence and research on contemporary prosecutorial practices to show that prosecutors have long engaged in categorical nonenforcement in relation to vice laws, property offenses, and even certain areas of violent crime enforcement.  By situating reformist prosecutors’ policies within this broader context, the Article exposes how the myth of individualized enforcement has been weaponized to delegitimize reform efforts while shielding conventional prosecutors from scrutiny.

The Article also excavates the deeper distinctions between reformist and conventional approaches to categorical nonenforcement that the myth of individualized enforcement serves to hide from view.  Reformist prosecutors tend to adopt centralized, formal, and transparent nonenforcement policies that aim to redistribute the benefits of prosecutorial leniency to historically marginalized groups.  Conventional prosecutors, in contrast, have often dispensed categorical leniency in an informal, covert manner and in contexts that tend to reproduce existing hierarchies of race, class, and gender.  By surfacing these divergences, the Article aims to reorient academic and political discourse about prosecutorial reform toward the more constructive end of evaluating different visions of discretionary justice and the institutional structures that will best align prosecutorial power with democratic values.

Rounding up some notable criminal justice advice directed toward prez candidate Harris

A range of criminal justice issues are starting to get a range of media attention with now less than 10 weeks until Election Day 2024.  I have recently noticed a number of newer pieces with various folks giving advice to VP Kamala Harris about how she might campaign and govern in this space.  Here is a partial round-up:

From the Chicago Tribune, "Kamala Harris must engage with voters on crime to maintain momentum"

From Marijuana Moment, "Harris Needs To ‘Follow Through’ On Marijuana Legalization, Independent Presidential Candidate Cornel West Says"

From The New Republic, "Crime Is Down. Kamala Is Up. There’s a story here, if the Harris-Walz campaign wants to tell it."

From Politico, "Democrats Are Already Buzzing About a Merrick Garland Successor: Here’s what Kamala Harris needs in an attorney general."

From the Washington Post, "Harris should go full wonk on crime: Rural voters want better answers to crime than overcrowded jails."

"Public Defense Attorneys' Perception of Race and Bias: National Survey Findings"

The title of this post is the title of this recent publication from the Center for Justice Innovations (CJI) authored by Sruthi Naraharisetti. Here is how the CJI website describes the work:

Public defense attorneys play a pivotal role in addressing the racial inequities that many clients face in the criminal legal system while also experiencing the impact of those racial inequities themselves.  This exploratory study aims to illuminate how attorneys consider race in their work, conceptualize their role in addressing racial inequity, and experience the impact of their racial or ethnic identities in the workplace.

Our survey of 690 public defense attorneys reveals that race significantly influences public defense practice and culture.  Attorneys recognize racial inequities in the legal system and adapt their strategies accordingly, with notable differences between attorneys who are white and attorneys who are Black, Indigenous, or People of Color (BIPOC). White attorneys often find that race hinders their relationships with BIPOC clients, while BlPOC attorneys are more likely to report adjusting case strategies for BIPOC clients. Inequities within the profession — such as a lack of diversity among attorneys and leadership, limited opportunities for dialogue, and workplace racism — are particularly felt by BIPOC attorneys.  We hope this report will inspire reflection and discussion among public defense agencies about racial bias in the field and help pave the way to identifying and evaluating actionable solutions.

Unanimous Massachusetts Supreme Judicial Court finds state's prohibition of switchblades violative of Second Amendment

The top court in Massachusetts handed down a notable (and unanimous) new Second Amendment ruling today in Commonweath v. Canjura, No. SJC- 13432 (Mass. Aug. 27, 2024) (available here). Here is how it starts:

Since 1957, G. L. c. 269, § 10 (b) (§ 10 [b]), has prohibited people from possessing certain spring-release pocketknives, commonly known as "switchblades." In this case, we are asked to decide whether § 10 (b)'s prohibition against carrying a switchblade knife violates the Second Amendment to the United States Constitution, considering the United States Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022) (Bruen).  We conclude it does. Accordingly, we reverse the denial of the defendant's motion to dismiss.

Prison Policy Initiative briefing discusses "10 ways that mass incarceration is an engine of economic injustice"

The quoted portion of this post title is the title of this new briefing published by the Prison Policy authored by Eric Seligman and Brian Nam-Sonenstein. Here is how the discussion starts:

Money is power in the United States, and mass incarceration plays a major role in determining who can wield power and who can’t.  As we’ve noted repeatedly over the years, it is no coincidence that the poorest and most vulnerable communities are also the most policed.  The criminal legal system erects significant barriers to employment and the ballot box, economically and politically weakening entire communities.  Importantly, this arrangement impacts all workers: employers use this massive class of disadvantaged people to threaten all workers with replacement and increasingly risky unemployment if they dare to demand better wages and conditions.  Mass incarceration also weaves a narrative that pits people with similar economic interests against one another, reducing systemic inequality to matters of individual choice.  Fortunately, understanding mass incarceration as the wealthy’s preferred economic policy clarifies that ending it is necessary for all movements for justice and equality — all working people benefit from solidarity with criminalized people.

In this briefing, we compile ten examples of how mass incarceration blocks progress toward economic justice.  We argue that our massive system of criminalization is not an isolated issue, nor is it someone else’s problem; it is an engine of inequality that traps people in poverty, weakens worker power, and undermines political organizing toward a more prosperous future for the vast majority of people.

South Carolina Supreme Court takes up pacing of state execution plans

As reported in this new AP piece, the "South Carolina Supreme Court won't allow another execution in the state until it determines a minimum amount of time between sending inmates to the death chamber." Here is more:

The state's next execution, scheduled for Sept. 20, is still on for inmate Freddie Eugene Owens.  It would be the first execution in South Carolina in over 13 years after the court cleared the way to reopen the death chamber last month.

But as it set Owens' execution date Friday, the court also agreed to take up a request from four other death row inmates who are out of appeals to require the state to wait at least three months between executions.  In its response, state prosecutors suggested setting the minimum at no longer than four weeks between executions.

Currently, the Supreme Court can set executions as close together as a week apart.  That accelerated schedule would rush lawyers who are trying to represent multiple inmates on death row, a lawyer for the inmates wrote in court papers.  Prison staff who have to take extensive steps to prepare to put an inmate to death and could cause botched executions, attorney Lindsey Vann said.

Neither argument is a good reason to wait for three months, state prosecutors responded in offering up to a four-week delay.  “The Department of Corrections staff stands ready to accomplish their duty as required by our law with professionalism and dignity,” Senior Deputy Attorney General Melody Brown wrote in a response drafted after speaking to prison officials....

South Carolina has held executions in rapid succession before.  Two half brothers were put to death in one night in December 1998.  Another execution followed on each of the next two Fridays that month, with two more in January 1999.

UPDATE: As reported in this press piece, the "South Carolina’s Supreme Court promised [on August 30] it would wait at least five weeks between putting inmates to death as the state restarts its death chamber with up to six executions looming."

"Presidential pardons: Which ones do Americans approve of?"

The title of this post is the title of this interesting new YouGov entry discussing its latest polling regarding various all sorts of aspects of the use and reach of the federal clemency power.  There are a number of notable and interesting findings discussed throughout the piece, and here is its introductory overview at the start:

As the 50th anniversary of Gerald Ford’s controversial pardon of Richard Nixon approaches, new polling reveals that public support for the pardon has increased over time, though slightly more still disapprove of it than approve. Americans are divided over many specific pardons, largely corresponding to whether their party and the party of the president who issued it are aligned. While some of the most recent pardons — such as those granted by President Joe Biden for marijuana possession — receive broad approval, others, particularly those issued by former President Donald Trump to his allies, are viewed far less favorably.

Roughly half of Americans approve of presidents having the power to pardon federal crimes, but majorities think it would be inappropriate for presidents to pardon themselves, family members, or donors. Many support putting limits on the president's pardon power, including by making public the reasons behind pardons, prohibiting self-pardons, and limiting pardons during an election year.

Ninth Circuit panel continues using Kisor deference analysis for guideline commentary after Loper Bright

The Ninth Circuit handed down a notable little opinion late last week in US v. Trumbull, No. 23-912 (9th Cir. Aug. 22, 2024) (available here), discussing whether the federal sentencing guidelines' commentary regarding the "definition of 'large capacity magazine' Warrants Deference under Kisor." Hard-core sentencing fans should know what is meant by guidelines' commentary, and hard-core administative law fans should know what is meant by Kisor deference. The panel majority concludes its analysis this way:

Application Note 2’s interpretation of “large capacity magazine” in § 2K2.1 meets the extensive requirements for deference laid out in Kisor. Therefore, the district court did not err in applying § 2K2.1(a)(4)(B), as interpreted by Application Note 2, to Trumbull’s base offense level when calculating his Guidelines range.

Judge Bea concurred in the result, but he wrote at length to explain why he thought Kisor deference was not justified in this context. In so doing, Judge Bea suggested that the Supreme Court's recent Loper Bright ruling was relevant to the analysis:

The majority’s expansion of Kisor deference is particularly troubling considering the Supreme Court’s recent decision in Loper Bright.  Although I acknowledge that Loper Bright did not expressly overrule Kisor, the majority is mistaken to brush Loper Bright aside and treat it as irrelevant to the interpretation of regulatory language. Maj. Op. at 7 n.2. The Court in Loper Bright made clear that courts cannot merely “throw up their hands,” as the majority does today, when a term is difficult to apply.  See Loper Bright, 144 S. Ct. at 2266. Indeed, Loper Bright questioned whether ambiguity can even serve as a valid benchmark when it comes to a court’s interpretive role.

I have noted in a number of prior posts (some linked below) that there is on-going dispute in the circuit as to whether Kisor applied to the guidelines commentary, and I am not surprised to see Loper Bright adding a nuance to these matters of uncertainty.

A few prior related posts:

• Kisor role: how often is deference to the federal sentencing guidelines' commentary litigated?
• Sixth Circuit panel debates agency deference for guideline commentary defining images for child porn sentencing
• How Kisor rolls: Third Circuit rejects guideline commentary in child porn sentencing 
• Hoping admin law gurus will help us all understand what Loper Bright might mean for federal sentencing law 

Interesting look at the different federal prison security levels and their costs

Walter Pavlo has this interesting new commentary in Forbes looking at the federal prison system, headlined "The High Price Of Minimum Security Federal Prisoners."  I recommend this piece in full, and here are excerpts: 

There are four security levels in the Federal Bureau of Prisons (BOP); minimum, low, medium and high. High security prisons are identified as U.S. Penitentiaries that house some of the most dangerous criminals, many doing life sentences. The compounds housing these prisoners which make up over 18,000 (11.8%) of the prison population have double fenced razor wire, electrical charged fencing, perimeter patrols and secure cells. In short, they are expensive to operate.

At the other end of security spectrum are minimum security facilities that are commonly called “camps.” Most do not even have any fencing around them, have fewer staff to monitor the prisoners and routinely allow prisoners to go unsupervised into the community for work details. Camps house those who have less than 10 years remaining in their sentence, many far fewer, and their populations are prisoners that were that are serving time for crimes that were not violent (low level drug dealers and white collar offenders).

One would think that the cost of housing a prisoner at a high security facility would be far more than the average cost of housing a camper. However, a recently released statement from Donald Murphy of the BOP’s Office of Public Affairs states an increase in the average cost of housing minimum security prisoners that approaches the average cost of housing someone at a U.S. Penitentiary.

Of the BOP’s nearly 160,000 prisoners, 24,000 of them are minimum security. The BOP’s statement was that the average cost of housing a minimum security prisoner in 2024 is $151.02. The cost of housing someone in a U.S. Penitentiary is $164.87 (Lows were $129.72 and Mediums are $122.50). Since there are more minimum security prisoners than high, the total costs of housing minimum security prisoners far exceeds the costs of housing those in high security....

One place to cut cost is to look at those in prison camps to see if there is an alternative, such as home confinement or halfway houses, to move them out of costly institutions. However, the BOP has, as Director Peters has stated, a shortage of halfway house capacity across the country....

The BOP’s prisoner population has shrunk over the last 12 years from over 200,000 to around 160,000 today. However, the BOP’s current budget of $8.3 billion, continues to be the largest portion of expenditures in the Department of Justice. Sixty-eight percent of that budget is for staff salaries and benefits. However, some question how many people the BOP needs to run operations....

If prisoners move out of camps, it creates a cascade of prisoners to be moved from higher security prisons to lower ones. One key to moving prisoners is creating a place for them to go. Halfway houses are in short supply and an NBC investigative report found that many, mostly minimum security prisoners, are staying in institutional prisons longer than necessary because of problems the BOP has with implementing the First Step Act.

Sixth Circuit panel rules federal prohibition of felon gun possession is "constitutional on its face and as applied to dangerous people"

A panel of the Sixth Circuit handed down an interesting and intricate opinion in US v. Williams, No. 23-6115 (6th Cir. Aug. 23 , 2024) (available here), which rejects a Second Amendment challenge to a federal illegal gun possession charge by a "dangerous" person with a felony record. The lengthy opinion for the Court concludes with this very helpful summary:

To summarize, we hold today that § 922(g)(1) is constitutional on its face and as applied to dangerous people.  Our nation’s historical tradition confirms Heller’s assumption that felonin-possession laws are “presumptively lawful.”  The history reveals that legislatures may disarm groups of people, like felons, whom the legislature believes to be dangerous — so long as each member of that disarmed group has an opportunity to make an individualized showing that he himself is not actually dangerous.

A person convicted of a crime is “dangerous,” and can thus be disarmed, if he has committed (1) a crime “against the body of another human being,” including (but not limited to) murder, rape, assault, and robbery, or (2) a crime that inherently poses a significant threat of danger, including (but not limited to) drug trafficking and burglary. An individual in either of those categories will have a very difficult time, to say the least, of showing he is not dangerous.

A more difficult category involves crimes that pose no threat of physical danger, like mail fraud, tax fraud, or making false statements. But such a case is not before us today.

In any event, district courts need not find a “categorical” match to a specific common-law crime to show that a person is dangerous. Rather, district courts should make fact-specific dangerousness determinations after taking account of the unique circumstances of the individual, including details of his specific conviction. Finally, when considering an individual’s dangerousness, courts may evaluate a defendant’s entire criminal record — not just the specific felony underlying his section 922(g)(1) prosecution.

Here, Williams availed himself of his constitutionally required opportunity to show that he is not dangerous—albeit after he violated the law, not before. Because his record demonstrates that he is dangerous, we reject his challenge. We thus affirm.

By my read, this opinion means that any and every person within the Sixth Circuit criminal charged with illegal firearm possession under 922(g)(1) — and perhaps other federal and state gun control provisions? — can now seek dismissal of that charge by making "an individualized showing that he himself is not actually dangerous."   In addition, I wonder if this Williams opinion might now provides a means for the millions of persons with non-violent felony convictions in the Sixth Circuit to seek a declaratory judgment that they are "not actually dangerous" and thus have a Second Amendment right to possess (and purchase) firearms like all their fellow citizens.

A few of many rior related posts:

• After Rahimi, can Donald Trump legally possess a gun? How about Hunter Biden? 
• Noting just some of the continuing litigation and uncertainty about gun rights after Rahimi 
• Ninth Circuit grants en banc rehearing of panel ruling that federal felon-in-possession criminal law is unconstitutional 
• After Rahimi remand, Eighth Circuit panel again rejects Second Amendment challenge to federal felon in possesion charge

"An Act of Regression: Louisiana takes a giant step backward in parole and sentencing reform"

The title of this post is the title of this new briefing from Prison Policy Initiative authored by Emmett Sanders. The subtitle of the discussion highlights its main themes: "Louisiana lawmakers are eliminating discretionary parole and implementing regressive truth-in-sentencing laws. These billion-dollar 'zombie policies' are set to double the prison population in a state that is already a world leader in incarceration and will harm public safety." Here is how the briefing gets started (with links from the original):

With the passage of HB 9, Louisiana recently became the 17th state since 1976 — and the first in nearly a quarter of a century — to eliminate discretionary parole as a pathway for releasing people from its prisons.  Simultaneously, the state began implementing HB 10, one of the harshest truth-in-sentencing laws in the country.  These were among a host of other so-called “tough on crime” bills that were signed by Louisiana’s new governor, and will affect nearly everyone sentenced in the state after August 1, 2024.  Together, this package of regressive bills will set prison and sentencing reform back decades in the state: although lawmakers have framed them as “public safety” measures, these laws will have the opposite effect, doubling the prison population, compelling billions of dollars in new prison construction, and drastically escalating violence and trauma for incarcerated people and prison staff in the state.