Sentencing Law and Policy

"Expanding Homicide Liability for a Parent’s Omission"

The title of this post is the title of this new essay authored by Monu Singh Bedi now available via SSRN. Here is its abstract:

Earlier this year, Jennifer and James Crumbley were convicted of manslaughter and sentenced to 10-15 years for not stopping their teenage son, Ethan, from killing four students at his high school.  This is the first known occurrence of an American prosecutor obtaining a homicide conviction relying on a parental omission-or failure to act-where the victim was not the parent's own child.  Parental omissions historically have only triggered homicide charges if the parent fails to protect their child, not others, from harm.  Unlike the general population, parents owe a special duty to their child because they are the ones tasked to oversee the child's care.  The Crumbley verdict has dislodged this longstanding criminal precedent. It has expanded a parent's common law duty to include protection of the would-be victims of their child's criminal acts.  Recently, in fact, Georgia has brought manslaughter charges against the parent of a school shooter under similar circumstances.  This Essay provides the first legal assessment of this prosecutorial theory and analyzes the various doctrinal, constitutional, and policy considerations surrounding its use.

Gallup reports "lowest levels of death penalty support" since 1972 (but still majority support)

This new Gallup piece, headlined "Drop in Death Penalty Support Led by Younger Generations: Less than half of millennials, Gen Z are in favor of it for convicted murderers," reports on its latest survey data concerning views on capital punishment.  Here are excerpts:

Younger generations of U.S. adults are far less likely than older generations to favor the death penalty for convicted murderers. As a result, overall support for the death penalty in the U.S. has fallen to 53% today, a level not seen since the early 1970s.

Less than half of U.S. adults born after 1980 -- those in the millennial and Generation Z birth cohorts -- favor the death penalty. At the same time, roughly six in 10 adults in older generations are in favor of such laws. Two decades ago, there were no meaningful age differences in views of the death penalty.

These results are based on aggregated data from Gallup’s annual Crime survey, which dates back to the year 2000. This analysis focuses on three time periods during which death penalty support was relatively stable -- 2000 through 2006 (when an average of 66% of U.S. adults were in favor of the death penalty), 2010 through 2016 (61%) and 2020 through 2024 (54%). The last period reflects the lowest levels of death penalty support Gallup has measured since a 50% reading in 1972.

Two decades ago, all generations’ support for the death penalty was within three percentage points of the 66% national average. At that time, the oldest millennials had entered adulthood. Between 2010 and 2016, support among adult millennials had fallen from 63% to 56%, while it dipped only slightly, to 63% or 64%, among the older generations.

In the most recent period, millennials again show diminished support, dropping another nine points to 47% in favor of the death penalty. Members of Generation X, baby boomers and the Silent Generation all show slight declines over the past decade, ranging from two to five points. Now that many in Generation Z (currently aged 12 to 27) have become adults, this subgroup is proving even less supportive of the death penalty than millennials are, at 42%....

As Gallup showed in last year’s death penalty update, the percentage of Republicans in favor of the death penalty has generally held steady over the past 25 years. The change in attitudes by generational group is thus seen more among political independents and, especially, Democrats. To analyze changes in death penalty support among generations in different party groups, the two younger (Gen Z and millennial) and three older (Gen X, baby boom and Silent) birth cohorts are combined to increase the reliability of the subgroup estimates. Even so, there are not sufficiently large sample sizes of Gen Zers and millennials in the 2000-2006 time period, before most had reached adulthood, to produce estimates for party subgroups of those generations.

Decreased death penalty support was first apparent among Democrats in older generations. Between 2000 and 2006, 57% of Democrats in Generation X or above favored the death penalty. Ten years later, support among this group had dropped to 49%, and it is at 38% in the most recent period. Younger Democrats -- those in Gen Z and millennials -- show an even larger drop in the past decade, from 45% to 27%.

Among political independents, those in Generation X or above showed steady support for the death penalty between the early 2000s and early 2010s, but that has dropped modestly since then, from 64% to 58%. The change among younger independents has been larger, from 55% to 45%.

While older Republicans’ views have not changed to a meaningful degree, there has been a slight decline in death penalty support over the past decade among younger Republicans, from 73% to 69%.

As a result of these changes, there are now double-digit gaps in death penalty support between people with the same political party identification from different generations. For example, 38% of Democrats and 82% of Republicans in older generations versus 27% of younger Democrats and 69% of younger Republicans, respectively, favor the death penalty.

It will be interesting to see if and how the incoming Trump Administration, which seems likely to advocate for capital punishment in various way, might have some impact on these public opinion trends.

Notable new sentencing reform recommendations from New Jersey commission

As reported in this local article, New Jersey's Criminal Sentencing and Disposition Commission this week issued its annual report that makes four notable sentencing recommendations. Here are details and context:

The group, which is made up of representatives from every facet of New Jersey’s criminal justice system along with designees from all three of New Jersey’s branches of government, is chaired by Chris Porrino of Lowenstein Sandler, and the former attorney general for the state of New Jersey.

Tasked with making recommendations to Gov. Phil Murphy and the Legislature on a yearly basis to promote a “rational, just, and proportionate sentencing scheme,” the group also offered [these] recommendations: ...

1. Eliminate some mandatory minimums....

2. Allow sentencing judges to consider the fact that a person was abused by the victim of their crime....

3. Allow those who have served long sentences and have aged past 60 (or 62 in some cases) to apply for a reduced sentence....

4. Permit judges to reduce or waive fines and other fees assessed against those convicted of crimes

This additional local article, headlined "Ending mandatory sentences for non-violent drug crimes back in play in N.J.," provides some additional details and context.

UPDATE:  I just found this online version of the letter that was sent to Gov Murphy with the reform recommendations.  Notably, it seems none of thise years recommendations are new, but they are all reiterations of recommendations previously made in prior reports from New Jersey's Criminal Sentencing and Disposition Commission.

Still more good news on crime from Major Cities Chiefs Association as we head into final stretch of 2024

I just saw that late last week the Major Cities Chiefs Association released here its crime data from its on "Violent Crimes Survey" based on reports to 69 law enforcement agencies over the first nine months of 2024.  These data continue to show a significant drop in violent crime in 2024 through September as compared to the same months in 2023.  Specifically, these data report over a 17% decline in homicides and a nearly 10% drop in reported aggravated assaults, rapes and robberies.  The homicide numbers matche up closely with the data coming from this AH Datalytics webpage, which shows a cumulative 18% decline in murders across more than 250 US cities mostly reporting through the end of September 2024.

If 2024 concludes on this note, I think it nearly certain that the reported crime declines of 2024 will be historic.  Indeed, it now seem possible that, after a stunning and historic rise in homicides in 2020, the nation may conclude 2024 with a near record low homicide rate.  (Of course, homicides and other crimes could tick up in the last quarter of 2024 and it seems hard to predict what we should expect in 2025.)  And, as I have noted in prior posts, it strikes me as especiallt notable that the 2024 declines in homicide (following big declines also in 2023) come at a time of relatively little use of the death penalty and relatively lower rates of incarceration by modern US standards.  (Though, as I have also stated before, I generally doubt that punishment trends siginficantly or directly account for homicide trends in any direction.)

New Death Penalty Information Center report presents critical account of federal death penalty history

The Death Penalty Information Center has today released this new report titled "Fool’s Gold: How the Federal Death Penalty Has Perpetuated Racially Discriminatory Practices Throughout History."  The title leaves little doubt about the tone and leanings of the report, and here is its executive summary to the same effect (which only appears online and not in the full report):

In 2020, President Joe Biden promised to end the federal death penalty during his administration and his Attorney General, Merrick Garland, acknowledged its many longstanding concerns as reasons to pause federal executions pending an internal review of Department of Justice policies and practices. Project 2025, the product of a political conservative movement, calls for President Trump to “obtain finality” for all federal death row prisoners. Before any decision about future use of the federal death penalty is made, it is critically important to understand its history and the serious flaws in the way it is used today. Although sometimes referred to as the “gold standard” of capital punishment, an analysis of the federal death penalty reveals that it is plagued by the same serious problems as state level capital punishment systems.

The federal death penalty has been used disproportionately against people of color: to subjugate Native Americans Resisting Colonization, and to intimidate and terrorize newly freed Black Americans.

Before the start of the Civil War, the federal death penalty was used primarily against white men. After slavery was abolished and the U.S. continued its westward expansion, however, the demographics of those executed shifted. At least 58 Native Americans were executed by the federal government between 1862 and 1899, with the majority killed in mass executions (defined as at least three people executed at the same time).

Black Americans were also overrepresented among those executed. Before the Civil War, 8 Black people were executed by the federal government; between 1862 and 1899, 47 Black people were federally executed — a 488% increase. Most of these executions occurred during the Reconstruction era, which also saw a dramatic rise in the extralegal lynchings of Black people....

Since the federal death penalty was reinstated in 1988, multiple studies have demonstrated that racial disparities continue to define federal capital prosecutions. The Death Penalty Information Center’s 1994 review of federal prosecutions found that “no other jurisdiction comes close to th[e] nearly 90% minority prosecution rate” seen at the federal level. A 2001 supplementary study found similarly jarring disparities, with nearly 80% of cases involving non-white defendants. A review of all federal death penalty authorizations from 1989 to June 2024 reveals that these disparities persist: 73% of all cases authorized for prosecution involved defendants of color.

Similar to use of the death penalty at the state levels, statistics suggest that there is a correlation between the race and gender of a victim and a federal death sentence. Defendants who killed white female victims receive the death penalty at a substantially higher rate than defendants whose victims were not white women.

The Death Penalty Information Center website all has this accounting of "Five Facts To Know About the Federal Death Penalty."

President-elect Donald Trump selects Matt Gaetz to serve as US Attorney General ... UPDATE: and eight days later he withdraws

As reported in this Fox News piece, "President-elect Donald Trump on Wednesday announced Rep. Matt Gaetz, R-Fla., as his pick for attorney general."  Here is more:

If confirmed, Gaetz will head up the Justice Department after Trump is sworn in for his second term in January.

Early contenders for the post included sitting U.S. senators, former Justice Department personnel and at least one top White House adviser from Trump's first term.

"He's going to want someone who he knows, likes and trusts," Former Acting Attorney General Matt Whitaker told Fox News about the role last week. "He's going to want someone who was there from the beginning."

Wow!  Here is more from a now-updated piece from Fox News:

Trump first announced his nomination in a post on Truth Social, saying Gaetz "has distinguished himself in Congress through his focus on achieving desperately needed reform at the Department of Justice."

Gaetz confirmed the nomination on the social media site, X, adding "It will be an honor to serve as President Trump’s Attorney General!"

In his statement on Truth Social, Trump praised Gaetz for his experience on the House Judiciary Committee, where he said Gaetz "played a key role" in "defeating the Russia, Russia Hoax," and exposing what Trump described as "alarming and systemic Government Corruption and Weaponization."

"He is a Champion for the Constitution and the Rule of Law."

UPDATE: It seems this pick for US Attorney General is not likely to get a warm reception from the Senate, as evidenced by this new Politico piece headline: "‘Reckless pick’: Lawmakers express doubts that Gaetz can get confirmed as attorney general; ‘I think he has a zero percent shot of getting through the Senate,’ said Donald Trump ally Rep. Max Miller."

ANOTHER UPDATE ON NOVEMBER 21: As this FOX News piece reports, "Matt Gaetz, the former Florida representative and Trump nominee for Attorney General, announced Thursday that he is withdrawing as Trump's pick for the top prosecutor, citing what he described as the 'distraction' his nomination had caused due to a swirl of allegations about paying underage women for sex." 

Harvard Law Review covers some of the notable criminal justice rulings from last Term in SCOTUS issue

As true law nerds know, the November issue of the Harvard Law Review is always focused on the Supreme Court's work in the prior Term.  And it has become somewhat of an annual tradition for me to be somewhat disappointed when the November HLR SCOTUS issue does not give considerable attention to the Court's considerable criminal justice work.   

This year, as the full HLR SCOTUS issue reveals, criminal justice cases do get some love in the student case commentaries (and I suppose it makes sense that the Foreword and lead commentaries are focused on other topics).  But while it is heartening to see some of the noteworthy criminal cases of OT 2023 SCOTUS covered in case comments in this issue, Apprendi fans will know what I consider to be a notable ommission frin this list:

• United States v. Rahimi
• McElrath v. Georgia
• Smith v. Arizona
• City of Grants Pass v. Johnson
• Fischer v. United States

On all sorts of grounds, I think Erlinger v. US is worthy of much more attention and commentary than McElrath  Similary, since I already authored a commentary on Pulsifer v. US, it also seems to me quite note-worthy.  (And cases like Diaz v. US and Snyder v. US also seem worth a mention, too.)  Of course, I fully understand why not everyone is ever-focused on the parts of the SCOTUS docket that gets me most exited.  But that won't keep me from this kind of annual moaning.

Bureau of Justice Statistics releases new report on "Methamphetamine, Cocaine, and Other Psychostimulant Offenses in Federal Courts, 2022"

Via email, I learned of this notable new report released today by the Bureau of Justice Statistics, titled "Methamphetamine, Cocaine, and Other Psychostimulant Offenses in Federal Courts, 2022."   The reportprovides details on persons arrested and convicted for a federal offense in Fiscal Year 2022 involving various (but not all) federal controlled substances: "Fifty-five percent (14,392) of the total arrests (26,233) the Drug Enforcement Administration (DEA) made during fiscal year (FY) 2022 were for methamphetamine, cocaine, and other psychostimulant offenses." The discussion of sentencing in this report appears drawn from US Sentencing Commission data, and here is a small part of an extended data discusssion:

In FY 2022, 14,420 persons were sentenced for a drug offense involving psychostimulants, an increase from 12,616 in FY 2021. Methamphetamine (9,704) was the psychostimulant type that the largest number of persons were sentenced for in FY 2022, followed by powder cocaine (3,476) and crack cocaine (1,117)....

On average, the number of persons sentenced for psychostimulants decreased by 1% annually from FY 2002 to FY 2022. More persons were sentenced for methamphetamine (up 5% annually) in FY 2022 than in FY 2002. Fewer persons were sentenced for drug offenses involving MDA and MDMA (down 11% annually) crack cocaine (down 7% annually) and other amphetamines (down 4% annually) in FY 2022 than in FY 2002....

Nearly three-quarters (73%) of persons sentenced for a drug offense involving psychostimulants in FY 2022 were sentenced below the applicable guideline range. Thirty-five percent of persons sentenced received a downward departure (a more lenient sentence than the guideline range). The most common (21%) downward departure was a substantial assistance departure for assisting the authorities in the investigation or prosecution of another person or organization.  Nine percent of persons sentenced for a drug offense involving psychostimulants received an early disposition program departure, which occurs when the government seeks a sentence below the guideline range because the person participated in the government’s expedited guilty plea program.  An additional 37% of persons sentenced for a psychostimulant drug offense received either a downward range variance (24%) or a governmentsponsored variance (13%) Reductions in sentences, both departures and variances, were due to prosecutors’ motions 43% of the time.

In FY 2022, 94% of persons sentenced for a drug offense involving psychostimulants were sentenced to imprisonment only. The median term of imprisonment for persons sentenced for a drug offense involving psychostimulants was 70 months. Persons sentenced for a drug offense involving methamphetamine received a median prison term of 94 months in FY 2022.

"Preserving Precedent on Capital Mitigation"

The title of this post is the title of this new essay authored by Jesse Cheng now available via SSRN.  Here is its abstract:

In the Court's recent decision in United States v. Tsarnaev, Justice Thomas appears to be planting the seeds for overturning longstanding precedent in death penalty trial procedure.  A line of cases on capital mitigation — evidence in favor of sparing the life of a criminal defendant facing the death penalty — has both expanded the scope of mitigating evidence and afforded wide latitude to sentencing decision-makers when evaluating this evidence.  The Essay asserts that in opposing this line of cases, Justice Thomas improperly ignores the procedural safeguard function that mitigation's deliberative liberties serve at a capital trial.  This safeguard function is indispensable: even with it in place, the existing system has produced convictions and death sentences of innocent individuals, some of whom have likely been executed.  The Essay casts a much-needed spotlight on the logic of mitigation as procedural safeguard, arguing that any attempt to overturn precedent must explain why this logic and its aspiration to heightened reliability no longer apply when it comes to the nation's ultimate punishment.

Highlighting continuing challenges in implementing First Step Act's custody transition mandates

In this extended new commentary in the Atlanta Journal-Constitution, Hugh Hurwitz and Walter Pavlo discuss the importance of halfway house in the federal prison system and challenges created by the First Step Act. I recommend the piece in full, and here are excerpts:

When most people think of the Federal Bureau of Prisons, they think of the many federal prisons across the country. They don’t think of houses in their neighborhoods.

There is a group of 150-plus small facilities in our communities that house and oversee more than 14,000 adults in custody. The Bureau of Prisons contracts with these facilities — known as residential reentry centers or halfway houses — to provide assistance to adults in custody who are nearing release. Residential reentry centers provide a safe, structured, supervised environment for the adults in custody, as well as employment counseling, job placement, financial management assistance and other programs and services.

Reentry centers help those in custody gradually rebuild their ties to the community during this transitional phase. Contracts usually have an in-house portion (the adult in custody lives in the halfway house) and a home-confinement portion (where the adult is ordered to stay their own residence for some of the day)....

The First Step Act of 2018 was signed into law by then-President Donald Trump on Dec. 21, 2018. The act sought to improve criminal justice outcomes and reduce the size of the federal prison population while creating mechanisms to maintain public safety.  Among other things, the act provides for low-risk adults in custody to earn time credits toward placement in early supervised release and prerelease custody....

Congress inadvertently put the bureau in an impossible position. The act states that “Time credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in prerelease custody or supervised release. The Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.”  The use of the word “shall” is key here.  “Shall” is mandatory, not permissive.  This means that if someone earns time credits and is otherwise eligible, they must be put in prerelease custody.

When the First Step Act was passed, the Bureau of Prisons recognized this requirement and began looking into ways to increase residential reentry center capacity. Despite repeated attempts, the bureau has made only incremental increases.

According to the bureau’s Office of Public Affairs, there were 10,408 beds in contracted halfway houses on Jan. 1, 2019. As of Sept. 23, 2024, that number was 10,553 — only 145 more in 5½ years. Inexplicably, the Bureau of Prisons is now telling offerors that they are canceling some solicitations for additional residential reentry center capacity because of “budgetary and staffing considerations.” The bureau receives more than $400 million annually to implement the First Step Act.  Surely, it can find a way to use some of this funding to increase reentry center capacity....

As adults in custody are now earning sufficient time credits to be eligible for significant time placement in prerelease custody, the bureau says it lacks sufficient bed space and is unable to fully comply with the law.  The Bureau of Prisons is limited in its ability to house adults in custody in residential reentry centers by the number of centers and home confinement “beds” under contract.

Pentagon secrets leaker sentenced after plea deal to 15 years in prison

Professor Sam Merchant, in a forthcoming article to appear in the next issue of the Federal Sentencing Reporter, makes the astute point that it is hard to assess or even understand judicial sentencing discretion exericised by federal judges after Booker without a deeper understanding of plea practices.  As he puts it: "If binding or nonbinding plea agreements actually drove the [most federal] sentences, any discussion of judicial discretion that ignores the central role of plea agreements is at best incomplete and at worst inaccurate or misleading."  This insight came to mind when I saw this AP report about today's high-profile sentencing of a "Massachusetts Air National Guard member to 15 years in prison after he pleaded guilty to leaking highly classified military documents about the war in Ukraine." Here are the basics:

Jack Teixeira pleaded guilty earlier this year to six counts of willful retention and transmission of national defense information under the Espionage Act following his arrest in the most consequential national security case in years....

The security breach raised alarm over America’s ability to protect its most closely guarded secrets and forced the Biden administration to scramble to try to contain the diplomatic and military fallout.  The leaks embarrassed the Pentagon, which tightened controls to safeguard classified information and disciplined members found to have intentionally failed to take required action about Teixeira’s suspicious behavior....

Earlier in court, Assistant U.S. Attorney Jared Dolan told [Judge] Talwani that 200 months — or a little more than 16 1/2 years - was appropriate given the “historic” damage caused by Teixeira’s conduct that aided adversaries of the United States and hurt the country’s allies.  He also said that recommendation by prosecutors would send a message to anyone in the military who might consider similar conduct....

But Teixeira’s attorney Michael Bachrach told the judge Tuesday that 11 years was sufficient. “It is a significant, harsh and difficult sentence, one that will not be easy to serve,” Bachrach said. “It will serve as an extreme deterrent to anyone, particularly young servicemen. That is enough to keep them deterred from committing serious conduct.”

When Teixeira pleaded guilty, prosecutors said they would seek a prison term at the high end of the sentencing range. But the defense wrote in their sentencing memorandum earlier that the 11 years “would be essentially equal to half the life that Jack has lived thus far.”

His attorneys had described Teixeira as an autistic, isolated individual who spent most of his time online, especially with his Discord community.  They said his actions, though criminal, were never meant to “harm the United States.” He also had no prior criminal record.  “Instead, his intent was to educate his friends about world events to make certain they were not misled by misinformation,” the attorneys wrote.  “To Jack, the Ukraine war was his generation’s World War II or Iraq, and he needed someone to share the experience with.”

Prosecutors in court filings countered that Teixeira did not suffer from any intellectual disability that would prevent him from knowing right from wrong, adding his post-arrest diagnosis of “mild, high-functioning” autism was of “questionable relevance” to the proceedings.

Why, one might wonder, did the prosecution "only" argue for a 16+-year sentence while the defense was "only" advocating for 11 years?  Becuase the parties defined those numbers as the acceptable sentencing range in this case via the plea agreement.  Perhaps the district judge here might have thought to impose a 15-year sentence without the plea agreement providing this binding anchor on the outcome, but we can never really know.

Highlighting notable rulings for when federal prisoners can start earning time credits under the First Step Act

Walter Pavlo has this notable new Forbes piece, headlined "Courts Continue To Hand Bureau Of Prisons Losses On First Step Act," highlighing how courts showing a lack of deference to federal agencies can be helpful to federal prisonsers.  I recommend the piece in full, and here are excerpts: 

The Federal Bureau of Prisons (BOP) is still having issues interpreting the First Step Act (FSA), which was enacted in December 2018 under Donald Trump. As Trump returns to the White House next January, he’ll see a BOP that is still struggling in implementing FSA, which was meant to save money on incarceration. However, the BOP has continued to interpret the FSA in a way that favors longer incarceration in institutions rather than sending men and women into lesser restrictive community options, such as halfway houses and home confinement. A judge in the Middle District of Alabama made a ruling that could affect the sentences of thousands of federal prisoners, if the BOP would make a broader change to its policies rather than addressing issues one at a time in court....

The BOP was tasked with implementing FSA and the law seemed easy when the law was passed. It allowed some prisoners, minimum and low security, who did not have a disqualifying crime, to participate in programming to earn up to 365 days off of their sentence. They can further earn credits toward prerelease custody, halfway house and home confinement. But when a prisoner can start earning was defined by the BOP as starting when a person arrives at his/her designated institution. That turns out is a big deal.

Many prisoners, particularly those who are minimum security, are allowed to voluntarily surrender to prison weeks after sentencing. When the person arrives at prison, that is when their sentence starts and when they can start earning FSA credits. However, there are other prisoners who are in custody at sentencing or who are taken into custody at sentencing, who need to wait for their designation and then be transferred to the prison. This process can take months and the BOP has determined that the time between the sentence and when the person in custody arrives at the institution is not counted toward FSA credits. While this may not be that big of a deal for a single prisoner as it relates to days off the sentence, this situation happens to thousands of prisoners every day, making it a huge cost to the BOP in thousands of prisoner days....

Beyond savings, Courts have handed the BOP a series of defeats in its interpretation of FSA. Some of these could actually save the BOP more money, if only it would listen to the judges who have ruled against it on allowing prisoners to earn FSA credits after sentencing but before they reach their final designation.

In a New Hampshire federal case (Austen Yufenyuy v Warden FCI Berlin), Austen Yufenyuy was in federal prison at FCI Berlin (New Hampshire) challenged the BOP’s rule of starting FSA credits only after the prisoner arrived at the institution. Yufenyuy was sentenced and spent months in transit before he got to his designated institution and the BOP denied giving him credits for that time that he was on the road from the courthouse to his final designated institution. The judge in that case ruled that Yufenyuy should get his credits, which he did. He was subsequently released but the BOP did not apply this ruling to any other prisoners, nor did they appeal the decision. It should be noted, that the Yufenyuy was made in March 2024, months before the Supreme Court ruled in the Loper case.

Now a judge has referenced Loper in a decision that, like Yufenyuy, granted prisoner Sohrab Sharma (Middle District of Alabama, Case No.: 2:24-cv-158-RAH-KFP) his FSA credits for the time he was in custody at sentencing until the time he arrived at his designated institution. U.S. District Judge R. Austin Huffaker, Jr. noted that the BOP has used its discretion in the past to award FSA credits when the person was not at the designated institution but did this on a case-by-case basis. Judge Huffacker concluded, “[T]ime Credits are available for successfully completed programing unless that programming is completed: (1) “prior to the date of enactment of this subchapter; or ... during official detention prior to the date that the prisoner’s sentence commences under section 3585(a);” or (2) the prisoner is otherwise ineligible under section 3632(d)(4)(D). Sharma does not meet any of these disqualifications.” Huffaker is hardly a bleeding-heart liberal. He was appointed by Trump.

"Classical Liberalism and Crime Prevention"

The title of this post is the title of this new paper just posted to SSRN authored by Nick Cowen. Here is its abstract:

This chapter discusses what crime is, why it provokes government action, and the problems of both private and public approaches to crime prevention.  For classical liberals, crime is deliberate or reckless harm imposed on persons and their property through violence or deception.  Besides violating people’s interests as moral equals, crime weighs heavily on commercial societies as it raises the costs of production, trade and exchange with strangers.  Crime is a significant challenge because it is: a) a disequilibrium phenomenon resulting from an information asymmetry between potential victim and offender; b) imposes externalities on the community that are hard for isolated actors to internalise; c) frequently causes more harm than apprehended offenders could realistically compensate.  Private crime prevention strategies use insurance, security, reputation, and bargaining with potential offenders to face this challenge.  The success of private crime prevention is often underrated.  Nevertheless, only capable states have so far managed to reduce violent crime to low levels by historical standards.  State solutions bring their own problems as they allow for predation and the imposition of externalities through the ‘legitimate’ political process.

Is attempted murder under New York law a "crime of violence" under federal law?

The question in the title of this post likely seems a bit ridiculous.  And yet this question is the issue being considered by the Supreme Court at oral argument this morning in Delligatti v. US.  To be precise, here is the (lengthy) question presented in the petitioner's brief: 

Under 18 U.S.C. § 924(c)(3)(A), a felony qualifies as a “crime of violence” if it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 

Courts have disagreed about how to apply use-of-force language to crimes that require proof of a victim’s bodily injury or death but can be committed by failing to take action. In the decision below, the Second Circuit held that any crime requiring proof of death or bodily injury categorically involves the use of physical force, even if it can be committed through inaction — such as by failing to provide medicine to someone who is sick or by failing to feed a child. 

The question presented is: Whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.

The government's brief is more economical in its statement of the issue in Delligatti: "Whether attempted murder, in violation of the Violent Crimes in Aid of Racketeering statute, 18 U.S.C. 1959(a)(5), is a crime of violence under 18 U.S.C. 924(c)(3)."  (The charge of attempted murder underlying petitioner’s Section 924(c) count was premised on petitioner’s commission of New York attempted second-degree murder.)

Though I expect "normies" could answer the question in the title of this post without difficulty, astute federal criminal lawyers likely know why this question is not so simple.  The so-called "categorical approach" to sorting out what are "crimes of violence" under federal law has been bedeviling lawyers and judges for decades now, and Delligatti is just the latest variation on the theme.  Helpfully, this recent Law360 analysis of the case, headlined "High Court 'Violent Crimes' Case Tangled Up In Hypotheticals," provides a detailed account of this tale as old as ugly jurisprudential time as well as the parties' arguments in Delligatti.  I recommend that piece in full, and it concludes with a call to Congress to jettison the mandatory minimum at issue here altogether:

Delligatti shows how the categorical approach relies on hairsplitting legal hypotheticals and reaches absurd results.... So long as the Supreme Court remains supportive of the categorical approach and requires its implementation when analyzing elements clauses, lower courts cannot simply get rid of the categorical approach.  However, Congress can get rid of Section 924(c), with minimal consequences.

As the federal defenders explained in their amicus brief, even without Section 924(c), those convicted of violent crimes will still face long sentences, "even if their crimes are not technically ones of 'violence.'"...  Even without mandatory sentences, judges can impose sentences that fit the specific circumstances of individual defendants. In some cases, this might reduce the costs of our overgrown carceral system.  And where it is warranted, decades-long incarcerations can still be imposed without Section 924(c), and without the time-wasting uncertainty caused by the categorical approach. 

After Delligatti, Congress should recognize that requiring hypertechnical arguments regarding enhancements leads to counterintuitive outcomes and unnecessarily long prison sentences, and repeal Section 924(c). 

I am not expecting Congress to get rid of 924(c) mandatory minimums anytime soon, but it will be interesting to see if SCOTUS is willing to keep advancing limiting constructions of this statute.

How about some clemency grants, Prez Biden, to really honor vets in need on Veterans Day?

On Veterans Day, I often find myself thinking about veterans who, after serving our country in the military and thereby supporting our nation's commitment to liberty and freedom, return home to discover the hard way that these constitutional values are not always paramount in our modern criminal justice systems.  The Council on Criminal Justice (CCJ) has created a Veterans Justice Commission which has done a lot of extraordinary work in this space, and I have linked below some prior posts on CCJ's important efforts to spotlight the wide array of issues at the intersection of military service and criminal justice systems.  For example, this recent CCJ report highlights what (little) we know about justice-involved veterans: 

Approximately one third of veterans indicate that they have been arrested at least once in their lifetime, but that statistic relies on self-reported data.  In addition, the most recent estimate of incarcerated veterans comes from 2011; it identified 181,500 veterans in state and federal prisons and local jails.  These two findings underscore an unfortunate truth: reliable data on justice-involved veterans and the circumstances surrounding their criminal offending is sorely lacking.

Usefully, the most recent CCJ report focused on veterans gives attention to some of my favorite topics, second-look sentencing and clemency, to advocate on behalf of the veteran incarcerated population:

Within this push for second looks, little has been done to consider opportunities for incarcerated veterans to request resentencing based on facts related to their military service.  California is an exception.  In 2022, the legislature passed a penal code amendment that allows veterans suffering from one or more specified service-related conditions to seek resentencing....

Beyond resentencing, the consideration of military service might also be extended to the parole, pardon, and clemency processes, where it is often overlooked.  By not fully and formally considering military service as part of release decisions, crucial context may be missed, potentially denying veterans opportunities for parole, pardon, or clemency.

As the title of this post highlights, I would like to see President Biden operationize this recommendation today by using his historic clemency powers to salute at least a few veterans in federal prison with commutations and at least a few veterans who are out of federal prison with pardons.  There is much chatter these days about to whom Prez Biden might grant clemency on his way out and to whom Prez-Elect Trump might grant clemency on his way in, and yet it seems only "high-profile" crimes and criminals are getting much attention.  That reality is not suprising, but it is still quite disappointing on a Veterans Day when we all should know that there are plenty of low-profile veterans who surely merit clemency consideration.

Prior related posts:

• New CCJ commission to examine factors driving veterans' involvement in criminal justice system 
• Noting the notable challenge of defining "veteran" for various purposes connected to criminal justice systems 
• CCJ's Veterans Justice Commission releases "Honoring Service, Advancing Safety: Supporting Veterans From Arrest Through Sentencing" 
• Council on Criminal Justice releases new policy roadmap encouraging alternatives to prosecution and incarceration for justice-involved veterans 
• CCJ's Veterans Justice Commission releases new report with recommendations on aiding veteran reentry 

Rounding up various accounts of Election 2024 on crime and punishment

I flagged in this post the morning after Election Day 2024 the results on various state initiatives that detailed that voters in many states have turned against progressive criminal justce reforms reforms.  The overwhelming voter support for California's Proposition 36, titled "Increase Sentences for Drug and Theft Crimes," and the ouster of a number of progressive California DA's has served as the focal point for much subsequent press coverage and commentary on these issues, though a number of the pieces rounded up below cover a lot of additional notable ground:

From City Journal, "The Anti-Crime Election: What some state and local results say about the future of public safety in America"

From Fox News, "'Failed experiment': Experts reveal why Soros-backed policies took beating in deep blue state"

From The Marshall Project, "Key Criminal Justice Takeaways from the 2024 Election"

From National Review, "Law and Order Politics Are Back"

From the New York Times, "Voters Sent Mixed Message on Crime and Law Enforcement"

From Politico, "California deals criminal justice reform a punishing blow"

From Vox, "Tough-on-crime laws are winning at the ballot box"