Sentencing Law and Policy

Did Justin Timberlake get a "sweetheart plea deal in drunk driving case"?

The question in the title of this post is prompted by the headline of this New York Post article discussing pop icon Justin Timberlake sentencing on Long Island yesterday.  Here are excerpts from the piece:

Justin Timberlake issued a groveling, court-ordered apology Friday for getting behind the wheel after downing drinks in the Hamptons. “This is a mistake that I made but I’m hoping that whoever is watching and listening right now can learn from this mistake,” said the former boy band heartthrob — who was ordered to deliver the public statement as part of a plea deal to a lesser violation in the case. “Even one drink — don’t get behind the wheel of the car.”

The “SexyBack” singer talked after pleading guilty in a Sag Harbor courtroom Friday to driving while alcohol impaired, which was a lesser charge than the DWI count he faced. The deal with prosecutors orignially only involved him making his public apology, but Justice Carl Irace said that was not enough and decided on his own to also sentence Timberlake to 25 to 40 hours of community service.

While its not clear when the work sentence will begin, the former NSYNC star delivered comments outside the courthouse after the hearing. During the three-minute address to the media, Timberlake admitted that while “I try to hold myself to a very high standard — this was not that.”...

Timberlake then emphasized a second time, that no one should drive even after having just one drink, urging people to look for any other transportation option after imbibing. “There’s so many alternatives,” he said. “Call a friend, take an Uber. There are so many travel apps. Take a taxi.”

In some sense, the local sentencing judge's decision to add a week's worth of community service to the sentence sugests he viewed the plea deal here as too lenient.  But I have no knowledge of what the sentencing norms are in New York courts for a drunk driving offense for a first offender.  This CBS News piece has a local lawyer asserting Timberlake did not het any special treatment:

Long Island defense attorney David Schwartz says with the plea agreement, Timberlake got treated like every other first-time offender. "The 90-day suspension is by statute, the $500 fine is by statute, and the judge threw on 25 hours of community service, which is completely normal," he said.

That CBS piece also has notable comments from the DA and a notable observer:

"Mr. Timberlake received the same treatment as any other defendant. Justice should be applied equally to all individuals, regardless of their wealth or celebrity status. Drunk and drugged driving is an extremely serious nationwide public safety issue," DA Ray Tierney said. "These drivers threaten the lives of random and innocent roadway users of every age, gender, ethnicity, and economic status. In 2024, with the prevalence and convenience of public transit and ride-shares, there is no excuse to get behind the wheel when you are impaired in any way."

The family of Boy Scout Andrew McMorris, who was killed by a drunk driver on Long Island in 2018, was inside the courtroom. "I do feel he was sincere, and I can only hope that his platform with everyone here will make a significant change," mom Alisa McMorris said. "This gives me hope that maybe the next generation will be the generation that ends drunk and impaired driving."

As I have articulated in the past in conjunction with other celebrity DUI sentencings, I think society's strong interest in educating and deterring potential drunk drivers might call for subjecting these offenders to more significant and/or creative alternative sanctions. Adding community service is a start, but why not require Timberlake, who is in the middle of a word tour, to make certain announcements discussing the dangers of DUI at his upcoming concerts?  I strongly share the hope that the "next generation will be the generation that ends drunk and impaired driving," but advancing that cause likely requires a lot more than a " groveling, court-ordered apology" from a societal icon.

"Beyond Problem-Solving Courts"

the title of this post is the title of this new paper on SSRN authored by Erin Collins.  Here is its abstract:

Problem-solving courts were borne out of a well-meaning experimentalist spirit, one that inspired judges to attempt to close the so-called “revolving door” to the courthouse by providing treatment instead of, or in addition to, incarceration. The problem-solving court movement is now more than thirty years old and the results of this experiment in court reform are underwhelming.  Viewed in the most favorable light, studies suggest that problem-solving courts can modestly reduce the likelihood that some court participants will be arrested or convicted again.  Meanwhile, the 40% to 60% of people who begin but do not complete problem-solving court programs often fare worse than they would have otherwise.

In this Article, I argue that it is time to stop trying to perfect problem-solving courts and to instead begin to close this door to the criminal courthouse altogether.  This will require some radical honesty about what these specialized courts do — and do not do — and the ways this punishment model creates unintended harms.  But this reckoning is also an opportunity to revive the experimentalist spirit that animated the earliest problem-solving courts and inspired judges to do things differently in the hopes of building a different future.  This Article ultimately is a call to envision new ways to provide services and opportunities that could help people thrive, and an invitation to open doors to new paths that avoid the system altogether.  In short, I argue that it is time to move beyond problem-solving courts.

New report details that persons with felony records have brought most gun litigation after Bruen changed Second Amendment law

In my very first post after reporting on the Supreme Court's 2022 landmark Second Amendment case, Bruen, I wondered on this blog "Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen?".  Two years later with lots and lots of lower court litigation and the follow-up SCOTUS case of Rahimi, it seems quite clear now the answer is "yes," felon-in-possession criminal gun prohibitions are "constitutional suspect," but the answer as to exactly whether and when they may be unconstitutional remains quite unclear.  The latest data point for these discussion comes from this new article from The Trace, fully headlined "More Than a Thousand Felons Have Challenged Their Gun Bans Since the Supreme Court’s Bruen Decision: The Trace reviewed more than 2,000 court cases that cited Bruen and found that no group has used the decision more often than people whose felony records bar them from possessing guns."  And here are some excerpts:

Bruen set off a wave of legal challenges to gun restrictions across the country, but no other group has taken to the courts as frequently as people with felony convictions, who are prohibited from possessing guns under a federal statute known as the felon gun ban.

The Trace reviewed more than 2,000 federal court decisions that cited Bruen over the past two years. More than 1,600 of them answered challenges to a wide variety of federal, state, and local gun laws — from assault weapons restrictions to bans on guns at the U.S. Post Office. The majority — some 1,100 — of the decisions included a challenge to the felon gun ban, making it the single most frequently contested statute by far.

At least 30 of the challenges to the felon gun ban have succeeded. While that ratio may seem small, it marks a stark departure from the past, when effectively none succeeded, and it shows that Bruen has cracked the longstanding consensus that people convicted of serious crimes may constitutionally be barred from gun ownership. 

Those decisions, albeit rare and frequently narrow, chart new legal pathways for other defendants and judges to follow, meaning that more people convicted of felonies could have their cases thrown out.  Over the past two years, judges have issued on average two Bruen-related rulings each working day, the majority of which have been on challenges to the felon gun ban. And the pace is increasing....

The sheer volume of Bruen challenges to the felon gun ban has the potential to gum up the legal system. Margaret Groban, a former federal prosecutor who focused on gun crimes and domestic violence cases, described the fallout as “a mess.”   “It does take up a lot of resources,” she said. “There are cases to prosecute, and then you spend all your time defending the cases that have already been prosecuted.”...

A felon in possession of a firearm is one of the most commonly charged federal crimes, according to the U.S. Sentencing Commission. In 2022 and 2023, more than 7,000 people with felony records were convicted of this crime — in the federal court system alone.  The majority of these defendants were Black....

“I represent a lot of kids who have never in their lives even fired a gun,” said Christopher Smith, a public defender in the Bronx. “But it’s a dangerous neighborhood.” His clients, he added, would rather be tried for carrying an illegal gun than killed for not having one to defend themselves. Bruen has shifted the legal strategy in gun possession cases, particularly for clients who had prior felony convictions, Smith said. “The biggest change is now we just write a different motion in gun cases, where we challenge on Second Amendment grounds.”

"An Empirical Exploration of a Jury Veto"

The title of this post is the title of this new paper available via SSRN authored by Stephen Henderson, Vanessa Edkins and Matthew Jensen. Here is its abstract:

Among the many contemporary dissatisfactions with American criminal justice are longstanding concerns relating to the scarcity of jury trials and the resulting lack of democratic oversight and control in the adjudicative process.  A novel solution has recently been proposed in the form of a ‘jury veto’: perhaps a jury could be empaneled, prototypically if not exclusively by defense request, that would be empowered to select between the judicially-imposed sentence and a prosecutorial and defense alternative.

We conduct the first empirical exploration of such a structure and find reason to believe it could lessen the disconnect between the American framing vision of citizen control and the current reality.  In particular, we find sentencing preferences different from prevailing norms and resilient to the form of conviction (i.e., guilty plea versus trial verdict), but predictably influenced by anchoring, framing, and adjustment. This suggests a veto could improve criminal adjudications but will require careful structure, and we describe how further study of both citizen pools and legal actors could continue to probe this novel device.

Highligthing again highlights of federal resentencing and broader second-look sentencing issues

In this recent post, I noted Adam Liptak's latest Sidebar column discussing federal compassionate release issues in conjunction with Judge Frederic Block's new book, "A Second Chance: A Federal Judge Decides Who Deserves It."  I was pleased to see today that David Lat now has this new substack post which gives even more attention to the book and Judge Block's work under the headline "This Federal Judge Calls For Giving Prisoners A Second Chance: Judge Fred Block, 90, continues to speak out about important issues facing the criminal-justice system."  I highly recommend the full post (including the footnotes), and here are a few excerpts:

What are the requirements for granting [a sentencing reduction under the First Step Act], known as “compassionate release”? The critical one is that the judge must find “extraordinary and compelling reasons” for doing so.

And what can constitute “extraordinary and compelling reasons”? It’s currently the subject of extensive litigation in district and circuit courts — which have issued conflicting rulings on multiple issues, making it likely that the U.S. Supreme Court will intervene....

If and when the justices get involved, I have a reading recommendation for them: A Second Chance: A Federal Judge Decides Who Deserves It.  In this engaging and enlightening new book, Judge Frederic Block of the Eastern District of New York presents readers with six defendants who filed motions for compassionate release in his court.  He asks us to reflect on whether we would reduce their sentences—then reveals how he ultimately ruled....

But as discussed in A Second Chance, and as Judge Block mentioned again when we spoke, federal prisoners constitute only about 10 percent of the total prison population in the United States.  The remaining 90 percent are in state prisons and local jails.  Judge Block believes that they too should be eligible for compassionate release — and describes his book as “my clarion call to all the states to follow Congress’s lead and enact their own First Step acts.”

The recommendation that all states create second-look sentencing mechanisms is, in my view, very well founded.  And I have been pleased to see various discussions of such a possibility in a few recent media pieces:

From Michigan, "Michigan Coalition Calls for Second Look Legislation to Alleviate Staffing Shortages in State Prisons"

From Nevada, "Committee to sponsor ‘second look’ bill that allows for reduction of lengthy prison sentences"

From New York, "After 17 Years in Prison, I’m a Different Person. Do Cases Like Mine Deserve a Second Look?"

Bureau of Justice Statistics releases "Criminal Victimization, 2023"

As discussed in this press release, the Bureau of Justice Statistics this morning released a new report titled "Criminal Victimization, 2023." Here is how the press release begins:

Data from the National Crime Victimization Survey (NCVS) indicate that in 2023, the rate of nonfatal violent victimization in the United States was 22.5 victimizations per 1,000 persons age 12 or older, which was similar to the 2022 rate of 23.5 violent victimizations per 1,000 persons age 12 or older.

This full report runs 36 pages and here is how it starts and the "highlights" listed on the first page:

In 2023, the rate of violent victimization in the United States was 22.5 victimizations per 1,000 persons age 12 or older, which was similar to the 2022 rate.  Violent victimization includes rape or sexual assault, robbery, aggravated assault, and simple assault.  The last three decades saw an overall decline in the rate of violent victimization, from 1993 (79.8 per 1,000) to 2023.  While the 2023 rate was higher than those in 2020 and 2021, it was not statistically different from 5 years ago, in 2019.

Similarly, the rate of violent victimization reported to police was consistent from 2022 to 2023 (10.1 per 1,000 persons).   The 2023 rate was higher than the 2020 (6.6 per 1,000) and 2021 (7.5 per 1,000) rates but was comparable to 5 years ago in 2019 and consistent with the overall downward trend since 1993 (33.8 per 1,000).

HIGHLIGHTS

• In 2023, there were 22.5 violent victimizations per 1,000 persons age 12 or older in the United States.
• The rate of violent victimization excluding simple assault for males decreased from 9.5 per 1,000 persons in 2022 to 6.9 per 1,000 in 2023.
• A smaller percentage of robbery victimizations that occurred in 2023 (42%) than in 2022 (64%) were reported to police.
• The percentage of motor vehicle thefts reported to police decreased from 81% in 2022 to 72%in 2023.
• About 9% of violent victimizations involved a firearm in 2023, similar to 2022.
• The percentage of persons age 12 or older who experienced at least one violent victimization declined from 1.51% in 2022 to 1.36% in 2023.
• A lower percentage of households were victims of burglary or trespassing in 2023 (1.01%) than in 2022 (1.12%).
• The rate of property victimization in urban areas increased from 176.1 per 1,000 households in 2022 to 192.3 per 1,000 in 2023.

Reviewing some elected offices that impact local, state and federal criminal justice system

Prison Policy Initiative has this new election-season briefing about criminal justice official titled "Mass incarceration is on the ballot: A guide to how 19 offices you may be asked to vote on can help end mass incarceration in America."  Here is how it gets started:

Election Day is right around the corner. While presidential campaigns get most of the attention from the news media, many lesser-known down-ballot races can have a much more dramatic impact on criminal legal system reform in America.

For voters interested in ending mass incarceration, we’ve put together a guide to the most common offices for which they will cast their ballots this November.  We also explore how those offices can make decisions to reduce the number of people behind bars, improve conditions in prisons and jails, and help turn the page on America’s failed experiment with mass incarceration.

It’s worth recognizing that there are significant differences in what an office might be called and its exact responsibilities from state to state and city to city, so readers should keep in mind that this might not be a perfect match for their area.  Additionally, it would be impossible to list all of the complex and far-reaching ways some offices influence the criminal legal system.  This guide focuses on the most common and consequential offices and responsibilities in this realm and is not intended to be all-encompassing.  With this guide, we aimed to give people a starting point for their research to better understand the roles and powers of the offices they’ll be asked to vote for.

Readers should use this guide to evaluate their candidates for office, press them to take clear stands on how they’ll use their position to improve the criminal legal system if elected and hold them accountable for those commitments once they take office.

"In the wake of Miller and Montgomery: A national view of people sentenced to juvenile life without parole"

The title of this post is the title of this new paper from multiple authors recently published in the Journal of Criminal Justice. Here is its abstract:

Objective

The movement to end mass incarceration has largely concentrated on people serving shorter sentences for non-violent offenses.  There has been less consideration for the 1 in 7 people in prison serving life sentences, overwhelmingly for violent offenses, including those serving juvenile life without parole (JLWOP).  Recent U.S. Supreme Court decisions result in a pressing need for data on second chance considerations for JLWOP.  This study tracks outcomes of the national population of juvenile lifers.

Data/methods

We cross-reference data to identify the JLWOP population at the time of Miller (N = 2904) to build a demographic profile and track resentencing, release, and mortality statuses. Statistics and data visualization are used to establish national and state-level baselines.

Results

Findings reveal more than 2500 individuals have been resentenced and more than 1000 have been released.  There is notable state variation in the number of JLWOP sentences, the extent to which JLWOP is still allowed, sentence review mechanisms, and percentage of juvenile lifers released.

Conclusions/implications

The present study provides an important foundation for subsequent work to examine equity in the implementation of Miller and Montgomery within and across states, and to study reentry of an aging population that has spent critical life stages behind bars.

For executive connected to FTX collapse (and Sam Bankman-Fried's girlfriend), federal guidelines call for LWOP, but probation office recommends time served

If anyone wants a good example of the federal sentencing guidelines not doing an effective job of guiding a federal sentencing judge, consider the specifics of the upcoming high-profile sentencing of Caroline Ellison.  This CNBC story about a sentencing filing provides some of the background, as well as helpful links to some key court documents:

Lawyers for Caroline Ellison, the star witness in the prosecution of FTX founder Sam Bankman-Fried, are recommending no prison time for their client’s role in the implosion of the crypto empire that was run by her former boss and ex-boyfriend.

In a court filing Tuesday night, the attorneys said that, at most, Ellison should be sentenced to time served and supervised release because of her swift return to the U.S. from FTX’s Bahamas headquarters in 2022 and her choice to voluntarily cooperate with the U.S. attorney’s office and financial regulators in helping them understand what went wrong at FTX and sister hedge fund Alameda Research. 

Judge Lewis Kaplan, who presided over Bankman-Fried’s case, cited Ellison’s testimony when he decided in March to sentence the FTX founder to 25 years behind bars.  Ellison, who ran Alameda Research, agreed to a plea deal in December 2022, a month after FTX spiraled into bankruptcy. Unlike Bankman-Fried, who was convicted of all seven criminal fraud charges against him, Ellison pleaded guilty to conspiracy and financial fraud charges, rather than go to trial.

The Tuesday filing also refers to the recommendation of the court’s Probation Department that Ellison be given a sentence of “time served with three years of supervised release” as a credit to her “extraordinary cooperation with the government” and “her otherwise unblemished record.”  Lawyers added that the department’s presentence report, which referenced numerous character testimonials speaking to Ellison’s ethics and integrity, also recommended that she not be fined.  “Caroline poses no risk of recidivism and presents no threat to public safety,” the filing says. “It would therefore promote respect for the law to grant leniency in recognition of Caroline’s early disclosure of the crimes, her unmitigated acceptance of responsibility for them, and — most importantly — her extensive cooperation with the government.”

In the filing, FTX CEO John Ray, who has been guiding the crypto firm through bankruptcy proceedings, describes Ellison’s cooperation as “valuable” in helping his team protect and preserve “hundreds of millions of dollars” in assets.  He added that she has worked with his advisors to provide information regarding private keys to cryptocurrency wallets that contain “estate assets, DeFi positions, FTX exchange internal account information, the use of third-party exchanges for pre-petition trading, and pre-petition auditing practices.”

The 67-page document describe large swaths of Ellison’s life, starting from her earliest days in Boston and stretching into her protracted and troubled romance with Bankman-Fried. In that time, she “moved around the globe at his direction, first to Hong Kong and later the Bahamas,” and “worked long, stressful, Adderall-fueled hours,” the filing says.  Bankman-Fried forced Ellison into a sort-of isolation, culminating in her moral compass being “warped,” the lawyers say. At his direction, Ellison helped “steal billions,” all while living “in dread, knowing that a disastrous collapse was likely, but fearing that disentangling herself would only hasten that collapse.”

“Bankman-Fried convinced her to stay, telling her she was essential to the survival of the business, and that he loved her,” all “while also perversely demonstrating that he considered her not good enough to be seen in public with him at high-profile events,” the filing says.

Though I have only had a chance to briefly scan Ellison's sentencing memorandum, I noticed it included no objection to the calculated guideline range, which produced "the Guidelines sentence of life imprisonment, reduced to the statutory maximum of 1,320 months" (110 years).  As guideline mavens know, the massive "loss" in this case drove Ellison’s guideline calculation to produce a recommended LWOP sentence; as federal sentencing mavens know, pleading guilty and providing "extraordinary cooperation with the government" is one critical way a defendant can seek to get a judge to ignore the guidelines at sentencing.

It will be interesting to see if the feds ask for any prison time here, but I am quite sure they will not be urging Judge Kaplan to follow the guidelines.  After all, the feds urged a sentence well below LWOP even for Sam Bankman-Fried even though his guideline calculation was literally "off the grid" and had the highest calculated offense level I had ever seen.  White-collar prosecutors and defense attorneys have long known, of course, that guideline calculations in high-dollar, white-collar cases often amount to a kind of Kabuki theater amounting to little of real substance.  That reality is surely on display, yet again, in the FTX sentencings.

Some prior related posts about SBF's sentencing

• You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts? 
• Should a bounce in crypto markets mean a much lower federal sentence for Sam Bankman-Fried? 
• Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"
• Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried
• Sam Bankman-Fried sentenced to 25 years in federal prison for his FTX frauds

"Fines, Forfeitures, and Federalism"

The title of this post is the title of this recent article I just came across via SSRN and authored by Jessica Asbridge. Here is its abstract:

Fines are ubiquitous in modern society, and they are imposed for both serious crimes and minor civil wrongs.  The U.S. Supreme Court recently recognized that the Constitution’s Excessive Fines Clause applies to the states, but that decision raises previously unexplored questions as to how to enforce the Clause’s protections in the states.  A key question is what role, if any, federalism should play in crafting doctrinal rules that apply the Clause’s protections to state and local fines and related property forfeitures.  This Article is the first to accord in-depth treatment to that important question.

The extent to which federalism principles should apply does not have an immediate and obvious answer.  On the one hand, federalism plays a significant role in the Court’s jurisprudence on the Cruel and Unusual Punishment Clause.  The Court therefore generally takes a highly deferential approach in reviewing sentences of imprisonment.  Lower courts have applied that same deferential review in the context of the Excessive Fines Clause.  On the other hand, fines and forfeitures are unlike other forms of punishment — such as prison — because they are often used as a revenue source for state and local governments, creating a conflict of interest for state and local decision-making bodies.

To address this conundrum, this Article makes the novel argument that the Court should look to the exactions doctrine under the Takings Clause, which often implicates similar concerns of government self-interest and overreaching. Exactions and excessive fines are conceptually similar, but scholars thus far have overlooked the close relationship between them.  The exactions doctrine gives minimal weight to federalism concerns, and it applies a heightened-scrutiny standard that is well suited to the excessive fines context.  Indeed, differences between federal practice and state and local practices as to fines suggest that discretionary state and local fines should be subject to closer constitutional scrutiny than federal fines.  As a recent example illustrates, such heightened scrutiny would ensure that the Excessive Fines Clause is not merely a parchment barrier, while still accounting for variations between states and localities in terms of their communities’ values and needs.

A reminder that kicking a cat down the road can get you sentenced to years in a federal prison

I am a big animal lover, especially cats, and so I was struck by this notable NBC News story about a federal sentencing today in Texas for kicking a cat.  The story details that this cat kicking was quite extreme and horrific:

A Texas man on Tuesday was sentenced to more than three years in federal prison for kicking a cat “as if kicking a football field goal,” in a case of abuse that was recorded and shared on social media, prosecutors said.

Donaldvan Williams, 30, was sentenced to three years and four months in prison, the U.S. Attorney’s Office for the Eastern District of Texas said in a statement....

He pleaded guilty in October to animal crushing and aiding and abetting in connection with the Oct. 15, 2021, incident in the parking lot of a Beaumont apartment complex, according to court records.  The cat was foaming at the mouth and convulsing as if it was poisoned, according to a factual basis of the crime filed in court following a plea deal....

The kick was recorded by another man, Decorius Mire, who encouraged Williams to kick the cat, prosecutors said. Mire posted the video to social media. Mire was sentenced last year to 18 months in prison....

Williams was charged with kicking the cat, but the animal’s torture did not end there. Someone else, whose identity was not known when the case was presented to a grand jury, poured an accelerant on the cat and set it on fire, the indictment against Williams says. The animal running away on fire was also recorded on video.

Each man's guilty plea dealt with kicking the cat and recording it, not the animal being set on fire, records show. Court records in the cases don’t appear to say if the cat lived or died.

I am inclined to suspect that the defendants here may have had some criminal history and/or were linked to the further torture of the cat to drive these sentencing outcomes.  Still, I suspect these cases may involve record-setting sentences for cat kicking.  Interestingly, almost exactly a decade ago, the New York Times a piece headlined "Should You Go to Jail for Kicking a Cat?".  That piece was a follo up to prompted by this NY Times piece headlined "He Kicked a Stray Cat, and Activists Growled." 

Rounding up some discouraging recent prison news stories from coast to coast

A helpful reader flagged for me a recent story about inmate deaths, and that reminded me that a number of discouraging prison stories had recently caught my eye.  Here is a partial round-up:

From the Chicago Cruisader, "New research links medical copays to reduced healthcare access in prisons"

From the Columbus Dispatch, "Ohio shouldn't put kids under age 14 in prisons, report says"

From the Milwaukee Courier, "Short on Fixes for Prison Problems, Wisconsin Weighs Independent Oversight"

From the Los Angeles Times, "Widespread sexual abuse of women in two California prisons draws federal investigation"

From Reason.com, "A Federal Prison Was Warned About Synthetic Marijuana. Then Inmates Started Overdosing."

From Reason.com, "Federal Judge Rules Inmate Death Records Can Remain Secret Because They Could Embarrass Prison Officials"

From WFSU, "Incarceration deaths are increasing across the country -- including in Florida"

"Justice Theater in the Criminal Law Curriculum"

I just came across this recent article about legal education that was posted to SSRN earlier this year and is authored by Gregory Brazeal. (I wrote a little on this topic more than 20 years ago, and I still view legal education on crime and punishment matters to be important underexplored issues.)  Here is this new article's abstract:

For the last half-century, law students have been required to take a criminal law course that ostensibly trains them to think critically about the justifications for criminal punishment.  The same students have then gone on to serve as central actors in a system of mass incarceration that millions of Americans today view as profoundly unjust.  How did this happen?

A number of legal scholars, notably including Alice Ristroph in her 2020 article “The Curriculum of the Carceral State,” have argued that the traditional criminal law curriculum has played a role in creating and reproducing the practices of mass incarceration.  This article agrees, and focuses on two concrete critiques, alongside two corresponding curricular reforms.

First, criminal law courses routinely introduce the field in part by discussing a series of theoretical “justifications of punishment” such as retribution, deterrence, incapacitation, and rehabilitation.  These discussions often provide students with tools for arguing in favor of punishment, and in particular incarceration, without providing relevant empirical evidence that shows the limits of the theoretical justifications.  Students are invited to focus on the theoretical benefits of incarceration without being adequately exposed to the negative effects of incarceration as it is actually practiced in the United States today.

The tradition of introducing criminal law through the discussion of theoretical justifications for punishment should be abandoned.  Instead, the article proposes beginning the criminal law course with an empirically informed discussion that frames criminal law as one response among many to the social problem of public safety.  Second, the bulk of most criminal law casebooks consists of excerpts from judicial opinions.  These excerpts tend to describe harmful acts carried out by defendants without providing adequate context for thinking seriously about justice.  The excerpts send the message that criminal harms result from isolated, individual choices by bad people, rather than being conditioned by situational and other factors, including policy choices by the state.

The article proposes replacing criminal law case excerpts with a method of instruction based on case studies, similar to the case study method used in many professional schools.  Case studies could provide students with more context for understanding criminal harms, and in particular could better equip future prosecutors to serve as “problem-solver[s] responsible for considering [the] broad goals of the criminal justice system,” as the ABA Criminal Justice Standards demand. In the coming years, the arrival of the NextGen bar exam will offer an occasion to reconsider how criminal law is taught in the United States.  Rather than continuing to train students in ways of thinking that facilitate mass incarceration, the curriculum should be changed. 

Former Prez Trump goes all in on marijuana reform ... perhaps as a pregame strategy for big Prez debate

I have been covering over at my other blog statements by former Prez Donald Trump about marijuana reform: in this post nine days ago, I noted the social media post seemingly supportive of Florida's marijuana legalization ballot initiative; in this post last week, I noted further comments suggesting his likely support for federal rescheduling.  Now, via this latest social media posting from late last night, Trump has made it quite clear that he is all-in on both state and federal marijuana reforms: 

As a Floridian, I will be voting YES on Amendment 3 this November.  As President, we will continue to focus on research to unlock the medical uses of marijuana to a Schedule 3 drug, and work with Congress to pass common sense laws, including safe banking for state authorized companies, and supporting states rights to pass marijuana laws, like in Florida, that work so well for their citizens.

These policy positions are quite interesting and significant in their own right, but it is also notable that Trump starts his latest social media posting of his pro-reform positions with this notable preamble: "As I have previously stated, I believe it is time to end needless arrests and incarcerations of adults for small amounts of marijuana for personal use."  This sentiment reinforces my prior stated view that Trump, ever the populist, understands that decriminalizing marijuana for personal use is very popular.  But it also now has me thinking that Trump is gearing up to attack VP Kamala Harris at their coming debate over her record as a local prosecutor jailing persons for low-level marijuana offenses.  

Of course, there is a notable history of Harris being attacked on her marijuana record by Tusli Gabbart back in 2019.  This new NBC News article talks about that moment and how "Gabbard won loud, raucous cheers and applause" after stating that Harris "put over 1,500 people in jail for marijuana violations and then laughed about it when she was asked if she ever smoked marijuana."   And, of course, Gabbart has recently endorsed Trump and is apparently part of his debate-prep team:

Asked about Gabbard’s involvement in debate preparations — such as they are in Trump world — a Trump campaign official said she had been helpful getting Trump to think about the pivot from attacking Harris to highlighting his policies or what he would do differently.  That included talking through how to take things one step beyond the attack lines he gives at rallies into cohesive debate answers.  The campaign official said the Trump team had been trying to get Gabbard involved for a while. “Tulsi Gabbard whipped Kamala Harris’ butt on the debate stage,” Trump spokeswoman Karoline Leavitt said. “She’s offering her advice to President Trump ahead of Tuesday’s debate.”

Interesting times, and likely also reflective of the fact that marijuana reform is especially popular with many young voters that Trump seems eager to court.  And, for anyone thinking more broadly about criminal justice issues and the coming Prez debate, the Sentencing Matters Substack team has a new post for you: "Presidential Debate: Agreements Call for Deeper Probing on Crime and Punishment."

Some recent related posts:

• Former Prez Trump articulates forceful support for state marijuana legalization, federal rescheduling and banking reforms
• Former Prez Trump suggests he is supportive of marijuana legalization in Florida and elsewhere
• Does former Prez Trump's praise for medical marijuana suggest he would robustly support federal marijuana rescheduling?
• Ever the criminal justice reform populist, former Prez Trump signals support for marijuana legalization in Florida and elsewhere 

Spotlighting new book that spotlights First Step Act compassionate release and sentence reconsideration

I was pleased to see that Adam Liptak today committed his Sidebar column in the New York Times to federal compassionate release issues in conjunction with US District Judge Frederic Block's new book  on the topic, "A Second Chance: A Federal Judge Decides Who Deserves It."  I recommend both the full NYTimes article and the full book.  The subtitle of the article serves as a kind of summary of both: "In a new book, Judge Frederic Block, who has served for decades, urged courts to vindicate the promise of the First Step Act, which lets prisoners ask for compassionate release from their sentences."  And here are excerpts from the article:

Judge Frederic Block is 90, and he has had decades to consider what counts as his gravest responsibility. “Look,” he said over the phone the other day, “the most important part of the job of a district court judge is sentencing.”...

Still, sometimes a sentence that made sense when it was imposed can look like a bad fit over time. Prisoners grow old or get sick.  The laws under which they were sentenced change.  Others who committed the same crimes get starkly different prison terms. Doubts arise about guilt.  On occasion, everyone agrees that the prisoner has been thoroughly rehabilitated.

In a timely book to be published next week, Judge Block makes a vigorous case for giving judges wide discretion to revisit sentencing decisions, describing cases he has encountered and urging states to adopt a more lenient approach.

The book, “A Second Chance: A Federal Judge Decides Who Deserves It,” arrives as federal courts are deeply divided on the question, one prompted by an extraordinary 2018 law, the First Step Act.  The law, enacted by enormous bipartisan margins and with President Donald J. Trump’s backing, overhauled federal sentencing.  A major feature of the law lets prisoners file motions for compassionate release in “extraordinary and compelling” circumstances.

“The First Step Act just really changed the sentencing landscape in the United States, because we are getting these motions every week,” said Judge Block, who was appointed by President Bill Clinton.  “As I speak right now, I probably have two new ones today,” he said. “Understandably, the district court bench will be inundated with them.  Because if you’re in jail and you have the opportunity to make an application asking the district court judge to reduce your sentence, you want to do it.”

But what counts as “extraordinary and compelling” is deeply contested.

US Sentencing Commission releases FY 2024 third quarter sentencing data

The US Sentencing Commission last week released on its website its latest quarterly data report, this one labelled "3rd Quarter Release, Preliminary Fiscal Year 2024 Data Through June 30, 2024."  These new data with the latest accounting of federal sentencing trends helps to further define the new normal in federal sentencing patterns.  As I have noted before, and as reflected in Figure 2, the quarters just prior to the COVID pandemic averaged roughly 20,000 federal sentencings per quarter; the "new normal" over the past year is roughly 15,000 and 16,000 total federal cases sentenced each quarter (and Figure 2 shows that declines in immigration sentencings accounts for the decrease in overall cases sentenced).

As I have also noted before, the other big COVID-era trend of historically large numbers of below-guideline variances has persisted for years now (as detailed in Figures 3 and 4). I continue to suspect this trend is mostly a facet of the different caseload and case mixes.  Interestingly, in the most recent two quarters, the official data show a small but notable uptick in the percentage of all federal sentences that are imposed "Within Guideline Range."  But it remains the case that a majority of federal sentences are being imposed outside the guideline range (for a wide array of reasons) than are being imposed inside the calculated range.

As I have also flagged before, the modern USSC's data on drug sentencing reflected in Figures 11 and 12 remains fascinating. These figures show, for the last three quarters, that over 46% of all federal drug sentencings involved methamphetamine and the average sentence for all those meth cases is well over eight years in prison.  Also notable is how few marijuana (2.7%) and crack cocaine (4.0%) cases are being sentenced in federal courts.  

As always, there are more big and small stories to mine from the latest USSC data.  But the relative consistency of the system, even with lots of notable recent reforms by the Commission and talk of more, is my consistent take away from these valuable data runs. 

Flagging a number of notable recent Inquest essays

It has been some time since I have highlighted items from Inquest, "a decarceral brainstorm," in part because the site has been recently running essays mostly focused on policing issues.  But I noticed a number of more punishment-focused pieces, and here I will  flag a handful of newer pieces sentencing fans may want to check out:

By Paul Butler & Cristian Farias, "Returning to Freedom: A PBS series on reentry is exposing audiences to how people leaving prison grow, heal, and thrive despite their past." By

By Joseph Margulies, "A Forgiving Society: Only by approaching each person as a member of society—rather than an outcast—will we begin to unwind the punitive turn of the past sixty years."

By Raj Jayadev, "People-Powered Defense: Participatory defense allows families and communities to protect their own in courtroom spaces that have long robbed them of power."

By William Kissinger, "Squinting in the Sunlight: Most reentry programs assume a person who is able to work and live on their own. Those of us who are older don’t have that kind of freedom."

By Stephen Wilson, "Unsettled People: Prison transfers are routinely used to punish, disorient, and isolate incarcerated people, disconnecting them from family, friends, community, and all sense of place."