Sentencing Law and Policy

Rounding up some prison press pieces as the week winds down

The highest-profile corrections stories of this week were surely the four executions in four US states.  But, as is always the case in our big nation with lots of prisons and jails, there were also lots of lower-profile incarceration stories from this week worth noting.  Here is an abridged list of pieces catching my eye:  

From Fortune, "Binance founder ‘CZ’ leaves prison on Friday—along with his $60 billion fortune"

From The Guardian, "Activists ‘fight against censorship’ in the largest US book bans: prisons"

From The Marshall Project, "The Future of Prisons?: Inspired by Germany, South Carolina let prisoners design their own units, write house rules and settle their own disputes. Then came politics."

From the Minnesota Star Tribune, "Many people in jail have an opioid addiction, but less than half of jails offer medication, study shows"

From the Mississippi Free Press, "Mississippi Town Ran ‘Kinds of Debtors’ Prisons Charles Dickens Described,’ Justice Department Alleges"

From MIT News, "Study evaluates impacts of summer heat in U.S. prison environments"

From NPR, "DOJ watchdog: federal prison not doing enough to prevent inmate suicides"

From the Washington Post, "D.C. Jail inmates take up soccer in new program with D.C. United"

From Wisconsin Public Radio, "Wisconsin DOC: Nonprofit can no longer send used books to prisoners"

Another day, another two executions completed in two states

As noted in this post, on Tuesday of this week, Missouri and Texas completed executions of condemned murderers.  Today, it was Alabama and Oklahoma carrying out executions.  Here are press accounts:

From AL.com, "Alabama inmate Alan Miller executed with nitrogen gas Thursday for 1999 shootings":

An Alabama Death Row inmate, convicted of killing three men in a workplace shooting, was executed Thursday evening. He is the second inmate in the country to be executed using nitrogen gas.

Alan Eugene Miller, 59, was executed at 6 p.m. at William C. Holman Correctional Facility in Atmore. The prison, located just north of the Florida border, is the only facility in the state equipped with an execution chamber and where most of the state’s death row inmates are housed.

From USA Today, "Emmanuel Littlejohn executed in Oklahoma despite clemency recommendation from state board":

Emmanuel Littlejohn was executed by the state of Oklahoma Thursday morning in the shooting death of a beloved convenience store owner, despite a recommendation from a clemency board that his life should be spared.

Littlejohn was convicted of the 1992 murder of Kenneth Meers in a robbery that turned fatal. Littlejohn had admitted to his role in the robbery but insisted until his death that an accomplice was the one to pull the trigger.

Littlejohn's execution was the fourth in the U.S. in less than a week and comes just hours before Alabama is set to use nitrogen gas to execute Alan Eugene Miller on Thursday evening.

Notable resource provides "State Constitution Tool"

I just saw this week this (new?) website, called "State Constitution Tool."  In a brief foray, I have found this resource pretty easy to navigate as a means to find state constitutional provisions related to a particular topic, such as "punishments" or "Due Process & Court Access."  The About page describing the resource starts this way:

The State Constitution Tool was developed by lawyers and scholars with expertise in constitutional law. They share a desire to equip other lawyers and the general public with the ability to identify, analyze, and compare different constitutions by topic.

Other research tools and commentaries categorize constitutions according to the author’s interests and opinions. The State Constitution Tool is unique because it allows users to draw their own comparisons directly from the source – the text of constitutions.

"The Weight"

The title of this post is the title of this new essay authored by Mark William Osler now available via SSRN (and forthcoming in the Federal Sentencing Reporter). Here is its abstract:

Baked into the mechanism for determining sentences in drug cases is an old, simple and pernicious machine for injustice: the use of the weight of narcotics to measure relative culpability for drug crimes.  At an instinctual level it makes sense, since someone selling 100 pills is doing more harm than another person who sells five.  But this ignores a basic fact about drug crimes: that they are business crimes that are committed by groups of people acting together, with different roles. That means the same deciding factor, the weight of the narcotics transported, is going to apply equally to both the mule who simply drives the drugs to a destination for a small payment and the mastermind who will ultimately make real money off the deal.  There is a better way — to tie relative culpability to the profit taken by an individual — and it is time to make this change.

Missouri and Texas both complete lethal injection executions

Two states completed executions last night.  Here are the basics from news accounts:

From CNN, "Missouri executes Marcellus Williams despite prosecutors and the victim’s family asking that he be spared":

Marcellus Williams, whose murder conviction was questioned by a prosecutor, died by lethal injection Tuesday evening in Missouri after the US Supreme Court denied a stay.  The 55-year-old was put to death around 6 p.m. CT at the state prison in Bonne Terre.

Williams’ attorneys had filed a flurry of appeal efforts based on what they described as new evidence – including alleged bias in jury selection and contamination of the murder weapon prior to trial. The victim’s family had asked the inmate be spared death.  The US Supreme Court’s action came a day after Missouri’s supreme court and governor refused to grant a stay of execution.

From AP, "Texas man who waived his right to appeal death sentence is executed for killing infant son":

A Texas man who had waived his right to appeal his death sentence received a lethal injection Tuesday evening for killing his 3-month-old son more than 16 years ago, one of five executions scheduled within a week’s time in the U.S.

Travis Mullis, 38, was pronounced dead at 7:01 p.m. CDT following the injection at the state penitentiary in Huntsville. He was condemned for stomping to death his son Alijah in January 2008.

I believe that the last time the US had two executions on the same day was just last year on November 16, 2023. And it woudl happen again tomorrow with executions scheduled in Alabama and Oklahoma.

Caroline Ellison sentenced to two years in prison for her role in FTX collapse

As reported in this CNBC article, "Caroline Ellison, the star witness in the prosecution of her former boyfriend, FTX founder Sam Bankman-Fried, was sentenced Tuesday in New York federal court to two years in prison and ordered to forfeit $11 billion for her role in the massive fraud and conspiracy that doomed the cryptocurrency exchange once valued at $32 billion."  Here is more about her sentencing:

The prison term was significantly stiffer than the recommendation by the federal Probation Department that Judge Lewis Kaplan sentence Ellison to three years of supervised release, with no time at all behind bars.

Defense lawyers also had requested a no-prison sentence for Ellison, who had run the hedge fund Alameda Research, which had received much of the $8 billion in customer funds looted by Bankman-Fried from FTX.  The stolen money was used for Alameda’s trading operation and other purposes.

While Kaplan praised Ellison for her extensive cooperation with prosecutors — which led to the conviction of Bankman-Fried — the judge said her criminal sentence needed to deter other potential bad actors from committing fraud.

The judge said that the FTX case is probably the greatest financial fraud perpetrated in the history of the United States, and because of that a “literal get-out-of-jail-free card I can’t agree to,” Kaplan said in U.S. District Court in Manhattan, where Ellison’s parents and two sisters looked on from the courtroom’s gallery.

“I’ve seen a lot of cooperators over the years and I’ve never seen one quite like Miss Ellison,” said Kaplan, who also said he believed that Ellison was genuinely remorseful for her crimes and that her cooperation carried a steep price for her emotionally....

Ellison read from a statement in a shaky voice while crying at times as she apologized to the people she had hurt and said she was deeply ashamed. She also said she was sorry for being brave enough to walk away from FTX and Bankman-Fried....

Ellison reached a plea deal with prosecutors in December 2022, a month after FTX spiraled into bankruptcy. She pleaded guilty to conspiracy and financial fraud charges. Bankman-Fried, in contrast, chose to stand trial and was convicted of all seven criminal fraud charges against him in the same courthouse where she was sentenced.

He was sentenced to 25 years in prison in March and also was ordered to pay $11 billion in forfeiture by Kaplan. Bankman-Fried since then has appealed his conviction, and requested a new trial and a different judge, arguing that Kaplan was biased against him.

Two other former FTX executives, Gary Wang and Nishad Singh, are scheduled to be sentenced later this year. Like Ellison, they pleaded guilty instead of standing trial....

On Tuesday, before sentencing Ellison, Kaplan contrasted her conduct after she was charged with that of Bankman-Fried.  While the FTX founder had denied criminal conduct, she cooperated with authorities, Kaplan noted.  “It didn’t work out so well” for Bankman-Fried, in part because of Ellison’s cooperation, the judge said.

Both Bankman-Fried and Ellison had faced the same statutory maximum sentence of about 110 years in prison for their crimes. But defendants in criminal cases who cooperate with prosecutors instead of fighting the charges particularly in white-collar cases such as FTX, often receive leniency when they are sentenced.

A few prior related posts:

• 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
• For executive connected to FTX collapse (and Sam Bankman-Fried's girlfriend), federal guidelines call for LWOP, but probation office recommends time served
• Feds praise Caroline Ellison's cooperation while refusing to suggest any specific sentence when federal guidelines recommend LWOP

Another notable long sentence for cruel animal mistreatment

For whatever reason, I am noticing a number of notable recent sentencing stories involving pets and aninals.  A couple of weeks ago, I blogged here about notable federal sentences given to criminal cat kickers, and a few days ago I flagged here the story of negligent dog owners in Texas getting sentenced in state court to decades in prison when their dogs killed an elderly man.  Today, the latest notable sentencing story in this (interesting?) genre comes from Alabama and involves horses as well as dogs.  This local reporting, headlined "Colbert County woman sentenced to 30 years for animal abuse," details the basics:

A Colbert County woman who was found guilty of animal cruelty was sentenced on Tuesday.  A judge sentenced Debra Catledge to a 30-year split sentence.  That means she will only have to serve nine years. Catledge will then be on probation for the remainder of her sentence. If she violates her probation she will be sent back to prison for the remainder of her sentence.

In August, a Colbert County jury found Catledge guilty. The charges were filed after Colbert County deputies found dead horses and more than 60 malnourished dogs and horses on her property.

When she was convicted, Colbert County Assistant District Attorney Dustin McCown said this should be a warning and an example to everyone in Colbert County. “We are doing everything we can to keep this type of behavior and conduct from something that is acceptable here,” McCown said. “I don’t think it’s acceptable here but we are going to show that we will enforce the laws on these types of cases.”

This local story from earlier this year provides a few more details about what seems to have been a pretty extreme case of animal cruelty.  In addition, a little google searching turned up this story from 10 years ago suggesting that this defendant had previously been charged with animnal cruelty in conjunction with running a puppy mill.  All that context perhaps makes nine years in prison and an additional two decades on probation a bit easier to understand.

Prior recent related posts:

• A reminder that kicking a cat down the road can get you sentenced to years in a federal prison 
• Negligent owners get decades in prison for deadly failings to control dogs

"Plea Agreements and Suspending Disbelief"

The title of this post is the title of this new essay authored by Sam Merchant now available via SSRN (and forthcoming in the Federal Sentencing Reporter). Here is its abstract:

This Essay explores the traditional view that judges exercise broad discretion at sentencing after Booker.  Around 98% of cases are resolved through guilty pleas, and at least 71% of those cases involve binding or nonbinding plea agreements, many of which stipulate to an exact sentence, guideline, or range.  Parties sometimes collaborate to ensure that sentences fit within confabulated guideline ranges, and when a sentence falls within a guideline range, the U.S. Sentencing Commission never systematically collects data on the judge's reasons for the sentence.  The absence of meaningful data on judges' reasons for two-thirds of federal sentences prevents thorough analysis of whether those sentences fulfill the intended purposes of punishment.

This Essay contributes new data on plea agreements for sentences within guideline ranges and suggests that parties drive more of federal sentencing than previously acknowledged.  Judges' apparent complicity, particularly post-Booker, gives those sentences the cathartic gloss of Article III, maintaining a peculiar but potentially necessary framework of fictions in federal sentencing.

Another review of the jurisprudential mess of the Second Amendment ... and originalism's deep challenge

Adam Liptak's latest Sidebar column in the New York Times, headlined "Supreme Court’s Gun Rulings Leave Baffled Judges Asking for Help," is focused on the mess that is Second Amendment jurisprudence.  I recommend the piece in full, and here are excerpts: 

Federal appeals courts were busy this summer trying to make sense of the Supreme Court’s recent Second Amendment decisions. It has not gone well.  In 2022, Justice Clarence Thomas introduced a new test to assess the constitutionality of laws meant to address gun violence.  Such laws must be struck down, he wrote, unless they are “consistent with the nation’s historical tradition of firearm regulation.”

Last month, Chief Judge Albert Diaz of the U.S. Court of Appeals for the Fourth Circuit, in Richmond, Va., writing for six judges, said that approach had created “a labyrinth for lower courts, including our own, with only the one-dimensional history-and-tradition test as a compass.”  He added: “Courts, tasked with sifting through the sands of time, are asking for help.”....

In June, in United States v. Rahimi, the Supreme Court upheld a federal law that made it a crime for people subject to domestic violence restraining orders to have guns.  In his majority opinion, Chief Justice John G. Roberts Jr. looked to history in very general terms and said lower courts bore the blame for the confusing state of the law.  “Some courts have misunderstood the methodology of our recent Second Amendment cases,” the chief justice wrote. “These precedents were not meant to suggest a law trapped in amber.”

Chief Judge Diaz was not convinced. The Rahimi decision, he wrote, “offered little instruction or clarity.”... Judge Pamela Harris of the Fourth Circuit, speaking at a conference on Saturday at William & Mary Law School, said appeals court judges faced a perplexing task.  “The trick is that we all need to go back in time and become historians,” she said. “And short of that, I find this to be very, very challenging.”

She gave an example. “I just got two briefs,” she said. “One brief says, ‘This happened in history.’ The other says, ‘No, it didn’t.’”

“What do I do?” she asked.

I noted in this post a few days ago that the three federal circuit courts which have weighed in on what Rahami and the Second Amendment means for federal felon-in-possession law have reached three different conclusions using, in essence, three different interpretive methodologies.  And this comes after the Supreme Court has had three major opinions embracing an originalist approach to the Second Amendment (Heller, Bruen and Rahimi), with the latter two seemingly serving as a bold statement that lower courts could not properly understanding and apply the Supreme Court's prior originalist rulings.

I do no want to go too far in suggesting that modern Second Amendment developments show that the originalist jurisprudential emperors wear no clothes.  But I do think the problems is these gun cases reflect the unavoidable difficulties in turning the wholesale concepts of originalism into detailed retail rules for precises case-by-case application and adjudication.  And these problems seem especially acute in various criminal justice settings where there are literally thousands of factual and legal variations being litigated in federal and state courts nationwide all the time.  (And that's why, as I have discussed here and here, I suspect some of the current conservative Justices may be fearful about where their originalist inclinations could take them in the constitutitional criminal procedure cases that used to be a mainstay of the SCOTUS docket.) 

Latest FBI reporitng on 2023 crime in US shows decreases in all violent crimes

The FBI this morning here released this summary accounting of violent crime in the United States in 2023:

The FBI’s crime statistics estimates, based on reported data for 2023, show that national violent crime decreased an estimated 3.0% in 2023 compared to 2022 estimates:  

• Murder and non-negligent manslaughter recorded a 2023 estimated nationwide decrease of 11.6% compared to the previous year.  
• In 2023, the estimated number of offenses in the revised rape category saw an estimated 9.4% decrease.  
• Aggravated assault figures decreased an estimated 2.8% in 2023. 
• Robbery showed an estimated decrease of 0.3% nationally.  

This AP article on this FBI data provides a lot more context:

Crime surged during the coronavirus pandemic, with homicides increasing nearly 30% in 2020 over the previous year — the largest one-year jump since the FBI began keeping records. The rise defied easy explanation, though experts said possible contributors included the massive disruption of the pandemic, gun violence, worries about the economy and intense stress.

Violent crime across the U.S. dipped to near pre-pandemic levels in 2022, according to the FBI’s data. It continued to tick down last year, with the rate falling from about 377 violent crimes per 100,000 people to in 2022 to about 364 per 100,000 people in 2023. That’s just slightly higher than the 2019 rate, according to Deputy Assistant Director Brian Griffith of the FBI’s Criminal Justice Information Services Division....

Law enforcement agencies in the biggest municipalities in the U.S. — communities with at least 1,000,000 people — showed the biggest drop in violent crime last year — nearly 7%. Agencies in communities between 250,000 and 499,999 people reported a slight increase — 0.3%— between 2022 and 2023.

Rapes decreased more than 9% while aggravated assault decreased nearly 3%. Overall property crime decreased more than 2%, but motor vehicle theft shot up nearly 13%. The motor vehicle theft rate — nearly 319 per 100,000 people — was the highest last year since 2007....

The FBI’s report is in line with the findings of the nonpartisan Council on Criminal Justice, which earlier this year analyzed crimes rates across 39 U.S cities, and found that most violent crimes are at or below 2019 levels. That group found there were 13 percent fewer homicides across 29 cities that provided data during the first half of 2024 compared the same period the year before.

At his Substack, Jeff Asher has some more context in a post titled "Murder Fell At The Fastest Pace Ever Recorded In 2023: Takeaways from the FBI's Crime in the United States 2023 report."  Here is the summary start to that post:

The murder decline is the largest one-year decline ever recorded, besting a 9.1 percent decline in 1996.  The 2023 murder decline combined with a large decline being seen so far in 2024 shows murder is falling faster than ever before recorded in the United States.   The 3 percent decline in reported violent crime puts the national violent crime rate (363.8 per 100k) alongside 2014 (363.6 per 100k) as the lowest level of reported violent crime since the early 1970s.

Highlights some recent sentencing discussions at Sentencing Matters Substack

As noted here a few months ago, this summer I helped create a Substack place and space for sentencing discussions titled Sentencing Matters Substack.  It dawned on me recently that I have not been regularly flagging all the interesting original content that has been posted at this Substack (usually on Monday mornings and mostly by Jonathan J. Wroblewski), and so I figured I would catch up here with just a partial listing of some summer highlights:

"Fair Enough?  Truth, Justice, and the Case of Chrystul Kizer" by Jonathan J. Wroblewski

"Who Cares If the Sentencing Commissioners Get Along?" by Jonathan J. Wroblewski

"Presidential Debate: Agreements Call for Deeper Probing on Crime and Punishment" by Douglas A. Berman

"The Sentencing Matters Substack Interview: Recent SCOTUS Fellow Sam J. Merchant" by Jonathan J. Wroblewski

"Less is More for the U.S. Sentencing Commission’s Policy Priorities … For Now" by Douglas A. Berman

"Bryan Stevenson, Second Looks, and Lasting Reverberations" by Jonathan J. Wroblewski

"Should Second Look Efforts Focus Particularly on Drug Offense Sentences?" by Douglas A. Berman

"Can Machine Learning Bring More Diversity – and Maybe Some New Thinking and Insights Too – to the U.S. Sentencing Commission?" by Jonathan J. Wroblewski

This amounts to just an abridged review of all the original content you can check out at the Sentencing Matters Substack.  And I expect we will continue regular postings through the fall and into the new year.  As always, these are exciting sentencing times, and we hope to keep contributing thought-provoking commentaries on thought-provoking sentencing issues.

Negligent owners get decades in prison for deadly failings to control dogs

A couple of weeks ago, I blogged here about notable federal sentences given to criminal cat kickers. Today, I saw a notable state sentencing in response criminal dog behavior, though in this case it involves fatal results for both humans and canines. NBC News reports these details in this piece headlined "Texas couple sentenced to prison after pit bulls killed 81-year-old man":

A Texas couple was sentenced to more than a decade in prison each Friday after their pit bulls got loose and killed an 81-year-old man last year, the Bexar County District Attorney’s Office said. Christian Moreno was sentenced to 18 years in prison and Abilene Schnieder was sentenced to 15 years in prison for the Feb. 24, 2023, mauling near their San Antonio home.

Ramon Najera, 81, was killed and his wife, Juanita Najera, was injured in the attack. The dogs got loose and attacked the Najeras as they were running errands nearby, officials said. “What happened to Mr. Najera was an unspeakable horror,” 226th District Court Judge Velia J. Meza said before imposing the sentence.

Firefighters who arrived on the scene saw a bloodied man being dragged around a corner by dogs, and the firefighters had to use pickaxes to fend off the animals, the city’s fire chief said at the time.

The three dogs involved in the attack or off their property at the time were euthanized, Animal Care Services said at the time of the attack.

Juanita Najera told the court Friday that she has post-traumatic stress disorder, courtroom video broadcast by NBC affiliate WOAI of San Antonio shows. “I would never have imagined I’d be calling myself a widow at this time in my life, and in this tragic way,” she said. "PTSD is now something I will have to deal with the rest of my life. Extreme loneliness and emptiness will also be a part of my life."...

There had been previous complaints about loose and aggressive dogs from that home, officials said at the time of the attack. “This unfortunate tragedy was preventable. The defendants’ failure to act responsibly and secure their pit bulls resulted in injuries and the loss of a life,” Bexar County District Attorney Joe Gonzales said in a statement....

If paroled, Moreno and Schnieder are prohibited from owning or possessing dogs.

I surmise that parole eligibility under Texas law might mean that these defendants could be released from prison before 2039 and 2042.