Sentencing Law and Policy

"Recidivist Organizational Offenders and the Organizational Sentencing Guidelines"

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

Despite recent Congressional hearings and public attention, the question of how to fairly and efficiently punish recidivist organizational offenders remains unresolved.  Any discussion regarding the most optimal legal response to recidivist organizational crime is incomplete without a solution accounting for the use of organizational deferred prosecution agreements ("DPAs") and non-prosecution agreements ("NPAs").  These tools allow criminal defendants to resolve charges without sustaining convictions that attach to the defendants' criminal records, and they are used often in the organizational context.

This Article is the first to recognize that the federal sentencing scheme fails to promote deterrence and fairness in the context of organizational sentencing and is the first to offer a practical solution to this problem.  The federal sentencing scheme currently does not require an increase in an organizational defendant's sentence when the defendant previously executed DPAs or NPAs before its subsequent criminal conduct.  Yet the federal sentencing guidelines do require an increase in an individual defendant's sentence if the individual previously executed a DPA. Meanwhile, the existence of prior DPAs and NPAs is a hallmark of organizational recidivism that demonstrates an organization is more culpable than other organizational defendants.  Accordingly, this Article recommends that the Sentencing Commission amend the federal sentencing guidelines to require sentencing courts to increase organizations’ sentences based on prior DPAs and NPAs.  This Article offers specific amendments for consideration. Finally, until the sentencing guidelines are amended, sentencing courts can use tools already in place to begin imposing more fair organizational sentences.

Former Prez Trump's state sentencing date push to week of Thanksgiving

As reported in this New York Times piece, the "judge overseeing Donald J. Trump’s criminal case in Manhattan postponed his sentencing until after Election Day, a significant victory for the former president as he seeks to overturn his conviction and win back the White House."  Here is more from the start of the article:

In a ruling on Friday, the judge, Juan M. Merchan, rescheduled the sentencing for Nov. 26. He had previously planned to hand down Mr. Trump’s punishment on Sept. 18, just seven weeks before Election Day, when Mr. Trump will face off against Vice President Kamala Harris for the presidency.

While the decision will avert a courtroom spectacle in the campaign’s final stretch, the delay itself could still affect the election, keeping voters in the dark about whether the Republican presidential nominee will eventually spend time behind bars.

It is unclear whether sentencing Mr. Trump in September would have helped or harmed him politically; his punishment could have been an embarrassing reminder of his criminal record, but could have also propelled his claims of political martyrdom.

Justice Merchan’s decision came at the request of Mr. Trump, who had asked to delay the sentencing until after the election, partly so he had more time to challenge his conviction. Prosecutors working for the Manhattan district attorney, Alvin L. Bragg, who brought the case, had deferred to the judge, paving the way for at least a brief postponement.

UPDATE: I have now seen this letter released by Justice Merchan to explain his adjuornment decision. Here are a few key passages:

'This matter is one that stands alone, in a unique place in this Nation's history, and this Court has presided over it since its inception — from arraignmcnt to jury verdict and a plenitude of motions and other matters in-between.  Were this Court to decide, after careful consideration of the Supreme Court's decision in Trump, that this case should proceed, it would be faced with one of the most critical and difficult decisions a trial court judge faces — the sentencing of a defendant found guilty of crimes by a unanimous jury of his peers....

Unfoftunately, we are now at a placeirn time that is fraught with complexities rendering the requirements of a sentencing hearing, should one be necessary, difficult to execute.  Thus, in accordance with certain of the grounds submitted by Defendant and the reasons for adiournment provided by the People coupled with the unique time frame this matter currently finds itself in, the decision on the CPL § 330.30 motion and the imposition of sentence will be adjourned to avoid any appearance — however unwarranted — that the proceeding has been affected by or seeks to affect the approaching Presidential election in which the Defendant is a candidate.

On morning of scheduled federal trial, Hunter Biden attempts to enter an Alford plea

As reported here in the Washington Post, "President Joe Biden’s son Hunter tried to resolve his federal tax case Thursday as jury selection was about to begin, offering an Alford plea in which he maintains he is innocent but acknowledges that the prosecution’s evidence would likely result in a guilty verdict." Here is more:

Prosecutors objected to the proposal, which they had not been told of in advance.  U.S. District Judge Mark Scarsi is expected to decide this afternoon whether to adjourn the proceedings until Friday or give the two sides more time to come to agreement.

“I want to make crystal clear: the U.S. opposes an Alford plea ... Hunter Biden is not innocent, he is guilty," Leo Wise, an attorney working for special counsel David Weiss, told the judge. "We came to court to try this case.”

Biden’s attorney, Abbe Lowell, noted that Alford pleas are an option available to all criminal defendants — even though such plea agreements are relatively rare. “All over the U.S. people do this,” Lowell said.  "It’s not that [Hunter Biden] seeks special treatment, but that he gets the same rights as everyone who is charged.”

Weiss charged Biden last year on nine tax-related counts, accusing him of failing to pay at least $1.4 million in federal taxes from 2016 through 2019.  Three charges were felonies and six were misdemeanors.  They include failing to file and pay taxes, tax evasion and filing false tax returns. Weiss separately charged Biden last year with three felony gun counts in Delaware.  A jury convicted Biden on all three charges in June, and he is scheduled for sentencing in November.

The indictments came after a lengthy investigation into Biden’s business dealings while his father was vice president, which Republican lawmakers and former president Donald Trump have tried to use as evidence of corruption within the Biden family. No evidence has surfaced publicly to suggest any wrongdoing by Joe Biden.

The younger Biden has said he has undergone treatment for addiction and is no longer using drugs. While his addiction to crack cocaine was a central theme of his gun trial, the Los Angeles case is expected to delve into Biden’s lavish spending and sex life during that period — much of which he chronicled in his 2021 memoir. Among the accusations laid out in the nine-count indictment is that Biden wrote off money he paid sex workers as business expenses on his tax forms.

An Alford plea, named after a case North Carolina v. Alford, is a way for a defendant to register a formal admission of guilt toward charges they are facing while simultaneously maintaining their innocence. United States attorneys are only able to consent to Alford pleas “in the most unusual of circumstances” and consult with top officials at the Department of Justice before doing so, according to federal prosecution guidelines....

The president, who has made clear he thinks the criminal charges against his son are politically motivated, has said emphatically that he does not plan to pardon Hunter Biden’s criminal convictions. Some of Hunter Biden’s allies hope he will change his mind, however, and issue a pardon after the November election.

Just as Hunter Biden was beginning the day in court, the president was leaving the White House to travel to La Crosse, Wis., for an event touting his administration’s economic policies. From Air Force One, White House press secretary Karine Jean-Pierre reiterated that the president would not pardon or commute Hunter Biden’s sentence. “No," she told reporters on Air Force One. "It is still very much a no.”

UPDATE: This Politico article reports that Hunter Biden's guilty plea was entered this afternoon, though it appears it was just a standard open plea to the charges rather than an Alford plea:

Hunter Biden pleaded guilty Thursday to tax evasion and other tax crimes in an 11th-hour about-face that surprised prosecutors as a trial was about to begin....

The only remaining question now is how much prison time, if any, Biden will face. Shortly after Biden entered his guilty plea, U.S. District Judge Mark Scarsi scheduled his sentencing on the tax charges for Dec. 16. Biden is scheduled to be sentenced in the gun case in November.

Biden faces up to 17 years in prison for the tax charges, though experts say lighter sentences in similar cases are more common. Scarsi will consider Biden’s admission of guilt when he sentences him....

The plea was not part of a plea deal, meaning prosecutors did not promise to recommend a reduced prison sentence....  After Scarsi questioned the Alford arrangement and signaled he might seek further legal arguments on whether he should accept it, Biden conferred with his lawyers and entered a straightforward guilty plea.

<P>As Scarsi questioned Biden about the plea in open court, the judge stressed that he still had the authority to hand down a hefty sentence.  “With regard to sentencing, there’s no guarantees. You understand that?” Scarsi, an appointee of Donald Trump, asked....

Biden is scheduled to be sentenced on Nov. 13 in the gun case, where federal sentencing guidelines recommend up to 21 months in prison, though Biden could receive much less or even no prison time at all.  In the tax case, prosecutors alleged that Biden earned more than $7 million during the years in question and later plotted to fraudulently lower the taxes he owed on that income by falsely labeling trips and other luxury purchases as business expenses. They said he used the money to fund a lavish lifestyle filled with drugs, strippers and sports cars.

"Terminating Supervision Early"

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

Community supervision is a major form of criminal punishment and a major driver of mass incarceration.  Over 3.5 million people in the United States are serving terms of probation, parole, or supervised release, and revocations account for nearly half of all prison admissions.  Although supervision is intended to prevent crime and promote reentry, it can also interfere with the defendant’s reintegration by imposing onerous restrictions as well as punishment for non-criminal technical violations.  Probation officers also carry heavy caseloads, which forces them to spend more time on enforcing conditions and less on providing support.

Fortunately, the criminal justice system also includes a mechanism to solve these problems: early termination of community supervision.  From the beginning, the law has always provided a way for the government to cut short a defendant’s term of supervision if they could demonstrate that they had reformed themselves.  Recently, judges, correctional officials, and activists have called to increase rates of early termination in order to save resources, ease the reentry process, and encourage rehabilitation.  Yet despite all this attention from the field, there are no law-review articles on terminating supervision early.

In this Article, I provide the first comprehensive analysis of early termination of community supervision.  First, I recount the long history of early termination, from the invention of probation and parole in the 1800s to the Safer Supervision Act of 2023.  Next, I identify and critique recent legal changes that have made it harder for federal criminal defendants to win early termination of supervised release.  Finally, I propose the first empirically based sentencing guideline on terminating supervision early, which I recommend in most cases after 18 to 36 months.  If community supervision drives mass incarceration, then early termination offers a potential tool for criminal justice reform.

Prison Policy Initiative provides "Mass Incarceration 101: Resources to help students and teachers understand the carceral system"

Prison Policy Initiative have this timely new posting authored by Danielle Squillante with this full title: "Mass Incarceration 101: Resources to help students and teachers understand the carceral system: It’s back to school season, so we’ve curated information and tools for students and teachers to use when researching the carceral system."  The posting serves to highlight a number of PPI's major data reports, and it worth a full read.  Here is how it gets started:

Students and teachers are heading back to the classroom. In addition to math, science, and language arts, many will also focus on the criminal legal system and mass incarceration. Unfortunately for them, the carceral system operates like a black box, making it hard to study what’s happening inside the walls of prisons and jails. Fortunately, we have made it our business to make the data that does exist as accessible and understandable as possible.

To better support the work of students and teachers, we’ve curated a list of publications and tools they can use to better study the carceral system and that can serve as launchpads for further research.

Where to start: The big picture

To start any lesson on mass incarceration, you have to understand the U.S. doesn’t have one criminal legal system; instead, it has thousands of federal, state, local, and tribal systems that incarcerate a combined population of nearly 2 million people.

Our flagship report, Mass Incarceration: The Whole Pie, puts these pieces together to give the “big picture” of mass incarceration by explaining not only the scale of our carceral system but also the policy choices that have driven its expansion.  It provides the most comprehensive picture of how many people are locked up in the U.S., in what types of facilities, and why.  In addition to showing how many people are behind bars on any given day in the U.S., it goes on to bust 10 of the most persistent myths about prisons, jails, crime, and more.

Reviewing the state and challenges surrounding former Prez Trump's approaching state sentencing date

The New York Times has this lengthy new piece, headlined "In Deciding When to Sentence Trump, Judge Faces ‘Impossible’ Task," providing a reminder that former Prez Donald Trump is scheduled to be sentenced two weeks from today and all of issues surrounding that reality.  Here are some excerpts:

Justice Merchan has made a steadfast effort to approach the landmark case no differently than hundreds of others he has overseen.  But more than three months after a Manhattan jury convicted Mr. Trump on 34 felony counts of falsifying records to cover up a sex scandal, the veteran judge faces his greatest predicament: He must decide whether to sentence Mr. Trump as planned on Sept. 18 or wait until after Election Day, as Mr. Trump has requested.

Justice Merchan has already agreed to delay the sentencing once, and his upcoming decision — which will be made in the heat of a presidential campaign that has pitted Mr. Trump against Vice President Kamala Harris — will reverberate well beyond his Lower Manhattan courtroom.  The decision could influence not only the election, but American politics for years to come.   And it will almost certainly subject Justice Merchan to partisan second-guessing at a time when the nation’s faith in the judiciary has been shaken by the Supreme Court’s decisions on abortion, guns and other issues, as well as revelations about some of its justices’ own political entanglements....

While Mr. Trump has already been deemed a felon, if Justice Merchan postpones his sentencing until after the Nov. 5 election, the American people will vote without knowing whether Mr. Trump will spend time behind bars.  A delay would also reward the stalling tactics Mr. Trump has deployed throughout the case, and feed the very impression the judge has labored to dispel — that the former president is above the law.  Yet if Justice Merchan, a moderate Democrat who was once a registered Republican, imposes a sentence just seven weeks before Election Day, Mr. Trump will no doubt accuse him of trying to tip the campaign in favor of Ms. Harris....

“Whatever decision Judge Merchan makes will not only be the right decision, it will be driven by nothing other than that which occurred in the context of this case,” said Jill Konviser, a retired judge who has known Justice Merchan for more than 15 years.  “Donald Trump will be treated fairly,” she added.  “Of that, I am 100 percent sure.”...

After finalizing Mr. Trump’s sentencing date, Justice Merchan faces still more delicate decisions.  The judge has promised to rule this month on Mr. Trump’s request to throw out his conviction in light of a new Supreme Court ruling granting presidents some immunity from prosecution.  And, at some point, he will have to actually decide whether to put Mr. Trump behind bars.

Mr. Trump, the first president to become a felon, faces up to four years in prison.  But legal experts believe it is more likely that Justice Merchan will sentence Mr. Trump to a few months in jail or probation.  Whatever his punishment, Mr. Trump is unlikely to be incarcerated before the election.  Even if the judge hands down the sentence on Sept. 18, he could postpone any punishment until after Election Day, or, if Mr. Trump wins back the White House, until after his second term expires.

Nor is Justice Merchan likely to have the final say.  The former president will appeal his conviction to higher courts, and if Justice Merchan sticks with the plan to sentence him on Sept. 18, Mr. Trump will likely appeal that decision as well.

"Fatal Peril: Unheard Stories from the IPV-to-Prison Pipeline and Other Voices Touched by Violence"

The title of this post is the title of this notable new huge report from the Stanford Criminal Justice Center.  The email I received about the report explains that it examines "the prevalence and severity of intimate partner violence (IPV) in the backgrounds of women incarcerated for homicide in California."  Here is the start of the report's executive summary:

The women’s rate of incarceration in the United States has grown twice as fast as that of men in recent decades.  Research has established that many incarcerated women have histories of abuse throughout their lives, including intimate partner violence (IPV), and that this abuse may contribute to their criminalization.  Gender-based violence results in an array of negative physical and mental health consequences, with intimate partner homicide (IPH) as the most severe outcome.

For women who are arrested, convicted, and sentenced for actions like homicide arising out of their own victimization, the law generally fails to account for domestic and intimate partner violence even when this abuse is supposed to be considered as a mitigating factor.  Unfortunately, little scholarship has examined the linkage between genderbased violence and women’s experiences as defendants ensnared in a broad and powerful criminal legal system.

The overarching purpose of our project was to understand how people experiencing genderbased violence are criminalized for actions they took to survive abuse. While IPV exists for people of all genders, we focused on women given their disproportionate rates of severe and lethal intimate partner abuse.  We also centered our study on people convicted of the most serious of offenses and serving the longest sentences — murder and manslaughter.

Specific objectives were to:

 (1) Quantify the prevalence of IPV and the potential lethality of the abuse;

(2) Describe the nature of the relationship between the survivor-defendant and the decedent as it relates to the circumstances of the offense; and

(3) Identify the extent to which the criminal legal system accounts for IPV.

The lengthy reports discusses sentencing in various ways, and this passage particularly caught my eye:

Although we did not systematically ask respondents about their co-defendants’ sentences, we were able to glean some information about sentencing disparities from their narrative responses.  In some cases, respondents received higher sentences than their co-defendants for less culpable conduct because their co-defendants testified against them.  As one respondent shared, “My ex-boyfriend was the one who did the actual crime. And both of them are already out of prison. I did not participate in the actual crime.  I should have a chance to get out of prison.”  Similarly, many co-defendants took plea deals to [testify against] respondents—even if the respondent did not cause the killing.

Exciting new "Real-Time Crime Index" website officially launched

Regular readers are used to seeing my references to the YTD Murder Comparison from the folks at AH Datalytics.  I am excited to see that these folks now have launched a "Real-Time Crime Index."   Jeff Asher has this new substack post discussing the launch and the tool, and here are excerpts:

The Real-Time Crime Index (or RTCI for short) launches today at https://www.realtimecrimeindex.com!  The RTCI presents a new way of looking at crime data by collecting current crime data from hundreds of law enforcement agencies nationwide to present national crime trends as never seen before: as they develop.

The RTCI was built thanks to generous support from Arnold Ventures and incredible hard work from the RTCI team: Dave Hatten, Katie Schwipps, and Oscar Boochever (as well as my co-founder Ben Horwitz and a ton of people who helped advise on data collection, auditing, and visualization).  The goal of this project is to provide this information so that anyone — regardless of their location, expertise in crime data, political persuasion, or policy preferences — can use it to understand crime locally or nationally.

The RTCI currently has data from more than 350 agencies covering over 80 million people though not all of those agencies have available data for every month from January 2017 through June 2024.  The agencies that do have data for every month since 2017 make up the nationwide sample which as of June 2024 has 304 agencies covering over 76 million people with full data in at least one crime category.  The national sample right now covers around 25 percent of the nation’s population and 45 percent of the murders that occur each year.

I’ll do a post tomorrow with much more detail about what the RTCI says about national crime trends and another post — probably next week — going deeper into the methodology behind the RTCI.  Overall, violent crime and property crime are falling in the United States according to the RTCI’s sample of data through June 2024.  Murder was down roughly 16 percent midway through the year, with overall violent and property crime down 5 and 9 percent respectively.  The RTCI also shows that the big property crime decline is being driven by motor vehicle theft falling 17 percent, after rising considerably each year from 2020 through 2023.

But the beauty of the RTCI is that anyone can see the data, the trends, the sourcing, and the methodology to evaluate what’s happening.  All of the current data for every city comes from either agencies themselves or state UCR programs with data received either through publicly available open data or sent to us directly from agencies or state UCR programs.

"Prosecution Deferred"

The title of this post is the title of this recent article available on SSRN authored by Shima Baradaran Baughman and Taylor Broadbent. Here is its abstract:

Deferred prosecution agreements (or DPAs) have been used with increasing frequency, particularly in corporate criminal prosecutions, over the past two decades.  By allowing prosecutors to offer a path for rehabilitation without ever having to bring charges against a defendant, deferred adjudication presents a valuable tool for progressive prosecutors to use in a broader movement for criminal justice reform.

However, data on how prosecutors use DPAs –– how often they are offered, and who they are offered to –– has long been lacking.  Drawing on a recent national experiment studying state and local prosecutors, we aim to supplement the existing data to help answer these questions.  We then draw on this more complete picture of how prosecutors at all levels are using DPAs to conclude that, contrary to congressional intent, DPAs have come to be used in practically every corporate criminal prosecution, while they are offered to resolve only a small fraction of individual prosecutions.  We argue that this troubling trend not only runs contrary to the legislation that initiated deferred prosecution agreements but is unjustified on public policy grounds.  This misalignment can likely be remedied by using deferred adjudication more frequently in individual prosecutions, presenting a valuable tool to respond to the endemic challenges of overcriminalization and mass incarceration, while still holding individuals accountable for crime. Increasing the use of deferred adjudication allows individuals facing criminal charges an opportunity at rehabilitation without the collateral consequences and reputational tarnish of prosecution. 

Two recent takes on the pendulum swings in recent justice reform efforts

In our nation, reform movements can often have a tendency to moderate over time, and that seem especially true in the criminal justice space where we can often see major (and minor) pendulum swings in reform efforts and broader politics. These moderating tendencies came to mind upon seeing this morning two recent notable pieces discussing, in somewhat differing contexts, the current state of reform efforts:

From The Atlantic, "Bipartisan Criminal-Justice Reform Is Still Very Much Alive: Yes, the pace of progress has slowed, but it certainly continues."

From the Marshall Project, "How Efforts to Cut Long Prison Sentences Have Stalled: Crime victim advocates and conservative groups are resisting moves to revisit 'truth-in-sentencing' laws."

UPDATE:  After doing this post, I came across another recent article discussing another recent pendulum swing:

From the Washington Post, "Hard drugs illegal again in Oregon as first-in-nation experiment ends:  Those who supported a measure that went into effect in 2021, which legislators rolled back this year, said it sought to help instead of simply handcuff."

Notable (and failed) argument that “originalist" jury trial right must allow juries to know about sentence and nullification

Last week I came across a short federal district court opinion in US v. Valdivias, No. 20-20054-02-DDC (D. Kan. Aug. 26, 2024) (available here), rejecting some notable originalist jury claims by a drug defendant. I recommend the entire opinion, and here are excerpts:

Before trial, Defendant Hugo Chavez Valdivias filed a Motion to Inform the Jury of the Sentencing Range, to Permit Nullification Arguments, and to Exclude Pattern Criminal Jury Instruction 1.20 (Doc. 204).  First, he asks the court to instruct the jury on sentencing ranges for the charges in the Superseding Indictment.  Second, he asks the court not to instruct the jury that it must ignore possible punishment in evaluating guilt.  Third, he asks the court to permit sentence-based “nullification” arguments.

Defendant supports these three requests by invoking an “originalist understanding of the constitutional jury trial right.” Doc. 204 at 1. He first argues that our Circuit’s cases prohibiting nullification arguments are based on policy, not the Constitution’s original meaning.  This basis, he argues, requires the court to disregard the cases as “obsolete” in light of the Supreme Court applying “methods of originalism” to interpret the Sixth Amendment. Id. at 6. He next argues that Supreme Court cases frequently cited in opposition to jury nullification don’t resolve the issue before the court. Id. at 9–14. 

The government disagrees. It argues that the jury in this case has no role to play in sentencing and so it can’t consider any possible sentence. Doc. 208 at 2. What’s more, our Circuit has held there isn’t a right to sentence-based nullification arguments, id. at 4, and, the government argues, is bound by those precedents, id. at 6.

Our Circuit and the Supreme Court disagree with defendant’s position as well.  And so, following precedent, this court must disagree.

Though I am not completely versed on every aspect of originalist history and arguments regarding the jury trial right, I have read enough historical accounts or jury functioning at the Founding to believe the defendant here could make a robust originalist claim.  But, as the ruling suggests, all contemporary precedents on informing a jury about sentencing issues and nullification power are contrary to these kinds of originalist contentions.  This arena, then, serves as another example (of many) where it would seem a serious commitment to an originalist interpretation of the Constitution would provide crminal defendants more rights than they have under modern jurisprudence. 

Eleventh Circuit panel finds Excessive Fines Clause applies to FBAR penalties

A helpful reader made sure I did not miss a lengthy new ruling from the Eleventh Circuit late last week in US v. Schwarzbaum, No. 22-14058 (11th Cir. Aug. 30, 2024) (available here).  Here are excerpts from the start of the 50+ page opinion:

Isac Schwarzbaum is a wealthy naturalized citizen of the United States.  He was born in Germany and holds significant wealth in numerous bank accounts in Switzerland and Costa Rica.  The U.S. tax regime required Schwarzbaum to report any foreign bank accounts to the Internal Revenue Service (the “IRS”) using a form known as the FBAR.  Although Schwarzbaum had read the FBAR filing instructions and engaged accountants to assist with his filings, he failed to report his foreign bank accounts to the IRS for years 2007–2009....

This case presents essentially two categories of questions.  The first set are procedural questions asking whether the district court can enforce the IRS’s recalculated penalties.  These questions are easily answered: (1) the United States, as plaintiff in a civil case, has the discretion to seek a lower penalty amount than the IRS assessed; (2) the Eleventh Circuit in Schwarzbaum I already disposed of and rejected Schwarzbaum’s statute-of-limitations argument; and (3) the district court did not err by retaining jurisdiction during a remand to the IRS that was, in essence, an interlocutory order.

More difficult is the fundamental question of whether FBAR penalties are fines within the meaning of the Eighth Amendment’s Excessive Fines Clause.  This is a matter of first impression for this Court.  The only other circuit court to have addressed the question, the First Circuit, recently held that the Eighth Amendment’s Excessive Fines Clause does not apply to FBAR penalties.

After careful consideration of the historical development of the Excessive Fines Clause and the FBAR’s text, structure, and history, we decline to follow the First Circuit.  Rather, we hold that FBAR penalties are in substantial measure punitive in nature.  Therefore, under controlling Supreme Court precedent, they are subject to review under the Eighth Amendment’s Excessive Fines Clause.  And in this case, examining the penalties assessed against Schwarzbaum account by account as we must, we identify $100,000 in penalties levied against one account in each of the years 2007–2009, for a total of $300,000, that are grossly disproportionate to the offense of concealing that account, and are therefore in violation of the Excessive Fines Clause.  We also hold, however, that the other penalties levied against the remaining accounts did not violate the Excessive Fines Clause because the penalties assessed against them were not grossly disproportionate to Schwarzbaum’s willful concealment of tens of millions of dollars in overseas accounts.

Ever the criminal justice reform populist, former Prez Trump signals support for marijuana legalization in Florida and elsewhere

When he was president, Donald Trump played a critical role in advancing, and then signed into law, the most significant federal criminal justice reform in a generation, the First Step Act.  Trump has also often talked up expanding the federal death penalty and he presided over 13 federal executions during the last six months of his presidency.  Based on polling and other indicators, I view these aspects of Trump's criminal justice record as reflecting his populist inclinations.

In that spirit, I was not too surprise yesterday when Trump authored this Truth Social post to signal his support for Florida's Amendment 3, which would legalize adult use of marijuana in the Sunshine State.  National polls in recent years have generally shown about 2/3 of Americans support marijuana legalization, and various polls in Florida have shown nearly 60% of support for Amendment 3.  (Notably, ballot initiatives in Florida require 60% of the vote for an amendment's approval.)  Because marijuana legalization has lately proven quite popular with ordinary citizens, Trump's post and position seems to reflect his populist instinct.

In addition, in reviewing Trumo's post, I was struck by how certain language he used and points he made echo long-standing criminal justice reform advocacy.  Here are excerpts with some key terms emphasized:

We will take our streets back by being tough & smart on violent, & all other types, of Crime....

At the same time, someone should not be a criminal in Florida, when this is legal in so many other States.  We do not need to ruin lives & waste Taxpayer Dollars arresting adults with personal amounts of it on them, and no one should grieve a loved one because they died from fentanyl laced marijuana.

Notably, a wide array of criminal justice reformers and advocacy groups have long talked up the importance of being "smart" on crime.  The "Smart on Crime" label has often been embraced by coalitions of reform-minded groups at the state level, such as in Kentucky and Louisiana and Texas.  Even more notably, in 2013, then-US Attorney General Eric Holder launched a major reform effort labeled the "Smart on Crime" initiative.  And that "smart" branding may well have been drawn from the title of Kamala Harris's 2009 book "Smart on Crime: A Career Prosecutor's Plan to Make Us Safer."

Meanwhile, expressing concern about overcriminalization and also geographic unfairness in criminalization echoes justice reformers' oft-stated concerns (though racial inequities in criminalization are typically given more attention than geographic inequities).  And the suggestion that arrests of adults for mere marijuana possession can "ruin lives" has been a key theme in marijuana reform advocacy found in reports from the ACLU ("the price paid by those arrested and convicted of marijuana possession can be significant and linger for years, if not a lifetime") and editorials in the New York Times ("marijuana convictions — including those resulting from guilty pleas — can have lifelong consequences for employment, education, immigration status and family life").

Interesting times.

"Red Juries & Blue Juries"

The title of this post is the title of this new article authored by Richard Lorren Jolly available via SSRN. Here is its abstract:

The United States is a democracy divided.  Perhaps not since the Civil War have Americans been so deeply and bitterly at odds with one another.  This polarization stretches beyond mere policy disagreements and has become a type of identity that studies show is for many of greater importance than race, gender, and religious faith.  The result of this division has been a loss of confidence across the nation’s institutions, with potentially dire implications.  This Article is the first to examine the jury as an institution in light of partisan hyperpolarization.  It reviews the history and underlying purposes of the jury as a democratic body, stressing that political biases are an inherent — and at times desirable — part of the institution.  But, in drawing on extensive empirical socio-psychological scholarship, it demonstrates that today’s polarization is so extreme that fresh approaches are necessary.  In order to ensure procedural and substantive legitimacy, courts must be diligent in seeking partisan representation in venires and policing partisan partiality among jurors in all cases, not just those that are explicitly political.  Critically, it concludes that potential jurors should not be excluded solely on the basis of political affiliation or past votes cast.  The jury as an institution demands the voices of many in order to fulfill its role as the democratic bench of the judiciary.

Rounding up some notable new capital punishment pieces

In recent posts, I have already covered notable capital punishment adminstration stories from Florida and Missouri and South Carolina.  And as news and commentary on death penalty issues keeps emerging from states and nationally, an abridged round-up of notable recent pieces catching my eye seemed in order:

From 10News, "Gov. Lee says Tennessee is working to resume executions, after sudden halt in 2022"

From the Daily Mail.com, "Trump reveals he'll bring BACK the federal death penalty and expand it to cover these sick crimes... do you agree?"

From FITSNews, "Capital Punishment: Line. Them. Up. And put them down…"

From The Journal, "The weight of the wait 30 years after Kansas death penalty law"

From the Kansas City Star, "Kris Kobach: The only problem with Kansas’ death penalty is that it takes too long"

From the New York Times, "America Does Not Need the Death Penalty"

From the Pittsburgh Post-Gazzette, "Editorial: Baby Leon Katz deserves justice. Pursuing the death penalty will only delay it"

From Salon, "The end of the abolition era: Democrats quietly drop their opposition to the death penalty"

From USA Today, "Death penalty in the US: Which states still execute inmates, who has executed the most?"