Sentencing Law and Policy

Rounding up lots and lots of (holiday weekend?) reading on crime and punishment and more

I am thankful for so very much this holiday season, including for all those who flag interesting pieces for the blog (and for the fact that I sometimes have the time to read -- or at least skim -- lots of writings about crime and punishment and more).  And so, heading into a holiday weekend (when I hope to get some more reading done), here is a long list of pieces from various sources catching my attention:

From The Appeal, "Thousands of People in Prison Have ADHD. Why Aren’t They Receiving Treatment?"

From the Arizona Daily Star, "Arizona to resume executions after two-year pause"

From Astral Codex Ten, "Prison And Crime: Much More Than You Wanted To Know"

From Bolts, "How California’s Embrace of a Tough-on-Crime Measure May Undo a Decade of Reform"

From the Brennan Center, "What Trump’s Victory Means for the Private Prison Industry"

From The Causal Falacy, "Seven Principles for Dealing with Disorder"

From City Journal, "Build More Prisons: The case for incarceration"

From the DP3 Substack, "DP3 Study: After 1,600 Executions, the Public and Police are Safer in States with No Death Penalty"

From Forbes, "Bureau Of Prisons Director Speaks Out After Latest OIG Report"

From The Hill, "Biden’s easy case for clemency: prisoners in home confinement" 

From Jeff-alytics, "Why the FBI's 2023 Estimates Were Likely Better Than Recent Years"

From Law360, "Rikers Faces Federal Takeover As NYC Held In Contempt"

From the Marshall Project, "Is The Age of Progressive Prosecutors Over?"

From Ms. Magazine, "‘Take Beauty From Ashes’: Advocating for Felony Murder Law Reform" 

From the New York Times, "When Leniency Is the Goal, a Justice System Breaks Easily"

From Nieman Lab, "Are Americans’ perceptions of the economy and crime broken?"

From the Toledo Blade, "State lawmakers struggle with Ohio's death penalty regulations"

From the Washington Examiner, "Which Jan. 6 defendants could see pardons?"

From Willamette Week, "Oregon’s Laws For When Aging Inmates Can Leave Prison Are Among the Nation’s Most Vague"

UPDATE: I just saw a couple of sentencing-related newer posts at the newly-revived CrimProf Blog:

"Presidential Pardons: Biden and Trump vs. Their Predecessors"

"Kolber on Punishment for the Greater Good"

New DPIC resource: "In Era of Secrecy, States Increasingly Restrict Media Access to Executions"

A helpful reder made sure I did not mean that the Death Penalty Information Center recently posted on its website this new resource titled "In Era of Secrecy, States Increasingly Restrict Media Access to Executions." Here is how the lengthy discussion gets started:  

On December 18, Joseph Corcoran is scheduled to be the first person executed by Indiana officials in 15 years.  For the first time, the state will use a single drug, pentobarbital, which comes from an unknown source and has been known to cause prisoners “excruciating” pain during executions.  But no media witnesses will be present to relay what happens to the public. Indiana is an outlier in its policy decision to completely exclude the press from witnessing executions in the state.  But a survey by the Death Penalty Information Center finds that many states now significantly restrict whether and how members of the press may observe and document the execution process.

Unobstructed media access to executions is critical because the media observes what the public cannot.  States generally prohibit citizens from attending executions, so the media becomes the public’s watchdog, providing important information about how the government is following the law and using taxpayer funds.  “We’re the ones that are there as the eyes and ears of the public, and we’re there to ensure that the state does it correctly,” said Rhonda Cook, a reporter for the Atlanta Journal-Constitution who has witnessed 28 executions.  Without journalists seeing and hearing every step of the process, the public can only rely on official state accounts, which often refuse to acknowledge problems regardless of the evidence.

Fifth Circuit panel reverses notable Second Amednment dismissal of federal felon-in-possession prosecution

I noted in prior posts (assembled below) the work of US District Judge Carlton Reeves in a case after the Supreme Court's landmark Bruen ruling in which a defendant challenged application of the federal criminal statute prohibiting felons from possessing firearm.  Judge Reeves intially asked the parties whether he "should appoint a historian to serve as a consulting expert" before deciding, in a 77-page opinion, that the Second Amendment required dismissal of the indictment in US v. Bullock. 

I now see that yesterday, though this three-page per curiam unpublished opinion, the Fifth Circuit reversed citing the Supreme Court's opinion in Rahimi setting limits on Bruen: "In light of recent precedent, the district court erred when it held that § 922(g)(1) violates the Second Amendment as applied to Bullock."  Here is a bit of the fairly brief analysis:

Here, Bullock previously misused a firearm to harm others when he shot one individual, fired into a crowd of others, and in the process killed an innocent passerby. A ban on his ability to possess a firearm “fits neatly” within our Nation’s historical tradition of firearm regulation. See [Rahimi, 144 S. Ct.]  at 1898–902....

Bullock’s violent conduct here is also “relevantly similar” to, and arguably more dangerous than, the “prototypical affray [which] involved fighting in public,” the precursor to the “going armed” laws punishable by arms forfeiture. Rahimi, 144 S. Ct. at 1901. And the justification behind going armed laws, to “mitigate demonstrated threats of physical violence,” supports a tradition of disarming individuals like Bullock pursuant to § 922(g)(1), whose underlying convictions stemmed from the threat and commission of violence with a firearm.  Id.; see United States v. Diaz, 116 F.4th 458, 470 n.5 (5th Cir. 2024).

The Diaz ruling from a couple of months ago cited here (and blogged here) certainly presaged this outcome, and Bullock is a long way from the best advocate for limits on felon disarming.  But Diaz suggests that at least some "modern" felons may not be lawfully disarmed, and it will be interesting to see if and when a Fifth Circuit panel addresses a potentially toughter Second Amendment case. 

Prior recent related posts:

• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
• Justice Department tells federal district judge "it is unnecessary ... to appoint an historian to assist" in resolving defendant's Second Amendment claim 
• US District Court concludes Second Amendment requires dismissal of federal felon-in-possession prosecution
• Fifth Circuit panel rejects Second Amendment challenge to federal felon in possession for defendant with prior car theft offense

Weak names this year at Prez Biden's final turkey pardon ceremony

This new Washington Post piece reporting on today's turkey pardon ceremony at the White House includes a little political gravy, along with an explanation for the names of the birds. Here is how the piece starts:

“They tell me there’s 2,500 people here today, looking for a pardon!” President Joe Biden stared through his aviators at the crowd on the White House’s South Lawn on Monday morning.  Everyone laughed. It was a joke, right? The rows of chairs closest to the president were stuffed with Biden loyalists: Cabinet members, political appointees, staff, friends — maybe the sort of people whom President-elect Donald Trump might seek retribution against?

In the end, only a pair of turkeys, Peach and Blossom, walked free. They are the last turkeys who will be pardoned by the 46th president, and they will “join the free birds of the United States of America,” Biden said. Peach, standing on a platform to the president’s right, released an ecstatic gobble. “Peach is making a last-minute plea here,” Biden added.

The birds were raised by National Turkey Federation Chairman John Zimmerman on a farm in Northfield, Minnesota. Zimmerman and his 9-year-old son, Grant, were on hand, as was Minnesota Gov. Tim Walz, less than three weeks removed from his star turn as Vice President Kamala Harris’s running mate.  This would be the closest Walz gets to the White House, at least for now.

The turkeys were named for the state flower of Delaware. “By the way,” Biden told the crowd, “Delaware has a long history of growing peaches,” and peach pie is the official state dessert.  One imagines this is the last we’ll hear about Delaware for a while.  Biden also said that the peach blossom flower “symbolizes resilience, which is, quite frankly, fitting for today.” The president did not explain what he meant by this.

The names given to the pardoned turkeys are never especially clever or interesting, but I was hoping for a bit more fun this year.  I suppose Hunter and Donald would have been too edgy, and Martha and George a bit too opaque in its cheekiness except for those on a first-name basis with famous federal defendants. 

Knowing this ceremony was sure to take place this week, I drafted and published a new Substack entry at the Sentencing Matters Substack to fill out some of my yearly griping about turkeys getting more clemency attention than people.  This new entry, "Imagining better clemency traditions than turkey pardons and lame-duck frenzies," gets started this way:

Late November 2024 augurs some traditions in the world of executive power that I do not view as a cause for holiday celebration.  Every year, as Thanksgiving approaches, the President and some Governors conduct ceremonies to “pardon” a few turkeys (who are often given not-so-clever names).  This year, with President Joe Biden and some Governors now in their final weeks in power and no longer accountable to the voting public, the 2024 holiday season also brings the spectacle of efforts to encourage out-going chief executives to use their clemency pens robustly to benefit a wide array of justice-involved individuals.  That spectacle traditionally presages a frenzy of lame-duck clemency grants that are more predictable based on calendar dates than based on the merits of substantive pleas for justice or mercy.

Be sure to head over to the substack if you want to review my efforts to "envision a few potential new traditions in the clemency arena that would justify celebration."  I also close with some clemency thanks, including: "I am also thankful that, even in divisive political times, we typically hear only robust debates over how the clemency power should be exercised, not over whether the power should exist at all."  

In the spirit of thankfulness, it dawns on me that I have been remiss in highlighting a lot of the recent new content from the Sentencing Matters Substack thanks to my co-authors.  One co-author in particular has done a particularly impressive job making sure we post new content every week, and here are some of his more recent efforts:

• A Better Federal Drug Guideline
• Facing a New Political Reality: A Five-Part Post-Election Agenda for the U.S. Sentencing Commission
• The Sentencing Matters Substack Interview: Former Presidential Candidate, Governor, DEA Administrator, Congressman, and U.S. Attorney Asa Hutchinson
• The Sentencing Matters Substack Book Review: Sentencing Without Guidelines, by Rhys Hester
• § 5H1.1 (James’ Version)

Espcially because I have the great joy of hosting family this week, which means blogging may be a bit lighter than usual, be sure to head over to the Sentencing Matters Substack if you want to feast on extra helpings of sentencing discussions.

Also, for those of you hungry for more clemency talk, remember to register for the online event, "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power," being hosted on December 10 by the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law.  More details and a list of panelist can be found on this event page. 

Intriguing statement from two Justices after cert denial concerning Takings Clause and police destruction of private property

The Supreme Court this morning issued this order list that concludes with an interesting Statement by Justice Sotomayor joined by Justice Gorsuch respecting the denial of certiorari in a case from the Fifth Circuit, Baker v. City of McKinney.  Though not a sentencing case, it raises a common question relating to whether and how civil provisions in the Constitution might have application to crminal matters.  The facts of the case involve local police causing signifant property damage (over $50k) to Ms. Bakers while reasonably seeking to apprehend a violent and dangerous fugitive holed up therein. Here are portions of how Justice Sotomayor discusses the legal question raised:

The Takings Clause of the Fifth Amendment provides that private property shall not “be taken for public use, without just compensation.” This case raises an important question that has divided the courts of appeals: whether the Takings Clause requires compensation when the government damages private property pursuant to its police power....

All agree that the McKinney police acted properly that day and that their actions were necessary to prevent harm to themselves and the public. [But] actions of the police also caused extensive damage to Baker’s home and personal belongings....

At the summary judgment stage, the District Court held that the City’s destruction of Baker’s property was a compensable taking under the Fifth Amendment. Baker v. McKinney, 601 F. Supp. 3d 124, 144 (E. D. Tex. 2022). Following trial, a jury awarded Baker nearly $60,000 in damages.

On appeal, the Fifth Circuit reversed.  The court declined to adopt the city’s broad assertion that the Takings Clause never requires compensation when a government agent destroys property pursuant to its police power. Such a broad categorical rule, the Fifth Circuit reasoned, was at odds with its own precedent and this Court’s Takings Clause jurisprudence. Baker, 84 F. 4th, at 383–384. Instead, the Fifth Circuit adopted a narrower rule that it understood to be compelled by history and precedent: The Takings Clause does not require compensation for damaged property when it was “objectively necessary” for officers to damage the property in an active emergency to prevent imminent harm to persons....

The Court’s denial of certiorari expresses no view on the merits of the decision below. I write separately to emphasize that petitioner raises a serious question: whether the Takings Clause permits the government to destroy private property without paying just compensation, as long as the government had no choice but to do so. Had McKinney razed Baker’s home to build a public park, Baker undoubtedly would be entitled to compensation. Here, the McKinney police destroyed Baker’s home for a different public benefit: to protect local residents and themselves from an armed and dangerous individual. Under the Fifth Circuit’s decision, Baker alone must bear the cost of that public benefit.

The full story leading to the property damage, as well as the limited caselaw on these issues, are well covered in Justice Sotomayor's statement. Anyone intrigued should make sure to read the full six-page statement.

"Sentencing Insurrection"

The title of this post is the title of this new paper authored by Kevin Lapp recently posted to SSRN. Here is its abstract:

On January 6, 2021, an estimated two thousand people broke police lines and breached the U.S. Capitol building in an effort to prevent the certification of the 2020 presidential election results.  Over one thousand people have been charged with various crim­­­­­es for their actions that day, from misdemeanor trespassing charges to felony assault with a weapon and seditious conspiracy.  Relying on publicly available sources, this article present results from an analysis of the first 514 people to have been sentenced in federal court for crimes committed on January 6.  The result is a snapshot of the insurrectionists, the charges they faced, and the punishments federal judges imposed on them.

On demographics, the data suggests that the lawbreaking and political violence of January 6 was not just the work of the usual criminal suspects, so-called right-wing extremists, or residents of former President Trump strongholds. Rather, it was committed by a cohort that more closely resembles mainstream White America.  On punishment, the aggregate results are notable for their leniency.  The cases were much more likely to result in a conviction for only a misdemeanor than typical federal criminal cases.  Prison sentences were imposed much less frequently than usual for federal criminal defendants, and were much shorter in length.

The article also explores the relationships between defendant age and sex, the sentences that judges imposed, and the sex and political party of the President who nominated the sentencing judge.  Several intriguing findings raise questions about scholarship on the politics of sentencing. It also examines where individual judges varied in the imposition of incarceration, sometimes in surprising ways, even accounting for the severity of the offense of conviction.

Finally, the article posits three alternative narratives supported by the data.  One is a story of preserving political stability and the rule of law through prosecution, threatened by lenient sentencing.  Another is judicial corrective to prosecutorial overreach.  A third centers the role of politics, demographics, and bias in the administration of criminal justice.