Sentencing Law and Policy

"Reaching a Verdict: Empirical Evidence of the Crumbling Conventional Wisdom on Criminal Verdict Format"

The title of this post is the title of this intriguing article recently posted to SSRN and authored by Avani Mehta Sood.  Here is its abstract:

Criminal jurors in American courts typically deliver their judgments through “general verdicts,” which announce only their legal conclusions of “guilty” or “not guilty.”  An alternative format, the “special verdict,” would require jurors to confirm their findings of fact regarding each element of the applicable law before reaching a conclusion.  Courts have long rejected the use of special verdicts in criminal cases, under the presumption that general verdicts better protect criminal defendants and their right to trial by jury.  However, this procedural status quo and its underlying rationale have never been empirically examined — until now.

This Article presents the results of an original nationwide survey on criminal verdict format that comprehensively measured the perspectives of over 1,600 stakeholders in the American legal system: state and federal judges, prosecutors, criminal defense attorneys, law professors, criminal science experts, civil litigators, and jury-eligible lay citizens — with former criminal defendants, victims, and jurors also included in the sample.  The data reveal that criminal case law’s longstanding position and presumptions on verdict format are strikingly misaligned with the views and intuitions of current legal stakeholders.  The majority of stakeholder groups — including criminal defense attorneys and jury-eligible lay citizens — on average supported the use of special criminal verdicts and expected this format to benefit criminal defendants and jurors in various ways.  Furthermore, even the only two stakeholder groups that on average supported the legal status quo in favor of general criminal verdicts — prosecutors and judges — did not subscribe to its rationale that special verdicts will disadvantage criminal defendants.

The survey’s findings call the criminal legal system’s status quo on verdict format into question by debunking the conventional wisdom on which it is based.  The Article also draws upon the data to consider why the norm in favor of general criminal verdicts nonetheless persists.  It concludes by identifying next empirical steps to qualitatively understand and experimentally test the legal and psychological implications of verdict format in criminal cases.

Rounding up some continuing discussions a week after Alabama's nitrogen gas execution

Unsuprisingly, conversations and debates over Alabama's pioneering next execution method are continuing a week after that state used nitrogen gas to carry out a death sentence for a murder committed over 35 years ago.  Here is an abridged round-up of some of the recent pieces that have caught my eye:

From the AP, "Oklahoma governor says he’s not interested in changing from lethal injection to nitrogen executions"

From the Louisiana Illuminator, "Landry wants Louisiana to resume executions, fulfill ‘contractual obligations’ with victims’ families"

From the New York Times, "A Select Few Witnessed Alabama’s Nitrogen Execution. This Is What They Saw."

From Slate, "'It Was the Most Violent Thing I’ve Ever Seen': Inside the chamber for Alabama’s experimental new execution technique."

From the Statehouse News Bureau, "Opponents of nitrogen executions bill cite Ohio's ban on gas for pet euthanasia"

Two new grants of sentence reductions rejecting DOJ's arguments that change in the law an improper ground

A helpful reader made sure I saw two notable new grants of sentencing-reduction motions. I recommend the both full opinions as they covers thoughtfully the legal debate over the US Sentencing Commission's new sentence-reduction guideline. Here are links to the opinion and key snippets from the rulings:

US v. Capps, No. 1:11-cr-00108-AGF (ED Mo. Jan. 31, 2024):

the Government argues that subsection (b)(6) is an invalid exercise of the Commission’s authority.  Specifically, the Government contends that subsection (b)(6) conflicts with § 3582(c)(1)(A) because nonretroactive changes to sentencing law are neither extraordinary nor compelling.  The Government further argues that the subsection raises separation-of-powers concerns because it contradicts Congress’s deliberate choice not to make the change in sentencing law here retroactive.

The Court disagrees. “Congress is not shy about placing [sentencing modification] limits where it deems them appropriate.”  Concepcion, 597 U.S. at 494. In this case, Congress broadly empowered and directed the Commission to issue binding guidance as to what circumstances qualify for potential reduction. See § 3582(c)(1)(A). Nothing in the statute’s text prohibits the Commission from considering nonretroactive changes in the law as extraordinary and compelling reasons for a sentence reduction.

The absence of any such limitation is telling. Congress could have drafted such a blanket prohibition into § 3582(c)(1)(A), as it did in 28 US.C. § 994(t) by specifying that “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.”  See also Concepcion, 597 U.S. at 483 (“Congress has shown that it knows how to direct sentencing practices in express terms.”).  Congress chose not to impose a similar prohibition with respect to nonretroactive changes in the law.

Download United States v. Capps - Grant (2023.01.31) (002)

US v. Padgett, No. NO. 5:06cr13-RH (ND Fla. Jan. 30, 2024):

The government also asserts that reducing a sentence based on a statutory change that Congress did not make retroactive is inconsistent with Congress’s decision not to make the change retroactive.  Not so.  When Congress chooses not to make a change retroactive, it means the change cannot be invoked by every affected defendant.  It does not repeal § 3582(c)(1)(A)(i) or prevent an affected defendant whose circumstances are extraordinary and compelling from invoking that provision.  See Ruvalcaba, 26 F.4th at 27–28.  Congress could rationally decide to change a statute — by changing the criteria for or length of minimum mandatory sentences, for example — and not to make that change a basis for a sentence reduction in a typical case, while still allowing a reduction in extraordinary and compelling circumstances.  And indeed, that is precisely what Congress has done.  Congress has said rehabilitation alone cannot be an extraordinary and compelling reason for a sentence reduction, but Congress has imposed no other limits on those terms. Id. at 25–26.  Neither the Sentencing Commission nor the courts are obligated to read into the statute an exception Congress did not enact. Id. at 26.

Download Foey Padgett Order reducing sentence b6 is legal (002)

"Resisting Mass Immigrant Prosecutions"

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

Over the last two decades, U.S. courts have convicted hundreds of thousands of Latin American defendants for misdemeanor immigration crimes.  This has mostly happened through a federal program called “Operation Streamline.” In that program, immigrants are convicted without any semblance of due process.  They are charged with the crime of entering the United States, have a brief conversation with a defense lawyer, plead guilty in a mass plea hearing with up to one hundred defendants at once, and receive their sentence — all in a single court appearance.  In 2018, this program encountered its first organized resistance.  In that year the Trump Administration tried to bring Operation Streamline to California for the first time.  There, immigrant defendants and their lawyers did not acquiesce to a norm of immediate guilty pleas.  Instead, they fought their cases by securing release on bond, raising objections, taking their cases to trial, and appealing their convictions.  This unexpected resistance prevented federal prosecutors from processing dozens of cases per day.  In 2021, something similar happened in Texas.  Governor Greg Abbott created a state law version of Operation Streamline called “Operation Lone Star.”  Immigrant defendants and their lawyers have resisted this program as well, securing release on bond and fighting through motions, writs, and trials.

This Article documents, analyzes, and draws lessons from these immigrants’ defiance.  It does so using court records, transcripts, and firsthand accounts.  In the process this Article uncovers the institutional logic of these mass immigrant prosecution systems, which have become a major feature of U.S. immigration policy.  It shows how these systems prioritize efficiency above all else, resulting in inferior jail conditions, summary court proceedings, and coerced guilty pleas.  In particular, it critiques the role defense lawyers typically play in these systems.  Defense lawyers are expected to facilitate these prosecutions by coaching their clients to plead guilty quickly.  Their presence gives the proceedings a false legitimacy, as these systems are designed to prevent lawyers from providing competent counsel.  As this Article argues, defense lawyers should instead undermine these systems by helping defendants assert their rights and litigate.  Indeed, immigrant defendants have powerful incentives to fight their cases if their lawyers will help them.  The battles in San Diego and Texas reveal several effective strategies for immigrant defendants to resist mass criminalization through collective litigation.  These include pushing for bail, going to trial, taking legal issues up on appeal, forcing prosecutors and judges to spend time on each case, and coordinating with outside groups like bail funds, immigration organizations, activists, and the media.

"The Road to Hell is Paved With Good Intentions: Deinstitutionalization and Mass Incarceration Nation"

The title of this post is the title of this new paper authored by Corinna Lain now available via SSRN. Here is its abstract:

They say that the road to hell is paved with good intentions, and our failed implementation of deinstitutionalization in the 1970s is a prime example of the point. In this symposium contribution — a response to Jeffrey Bellin’s book Mass Incarceration Nation — I offer a historical account of deinstitutionalization of state mental hospitals, tracing how severely mentally ill patients were discharged from state hospitals and eventually made their way back to secure beds, but in our nation’s jails and prisons instead.  Mental health and mass incarceration are not separate crises, I argue, but rather interconnected problems with an interconnected past that require an interconnected solution.  The lessons of deinstitutionalization’s failures can inform how our decarceration story plays out, offering an opportunity to avoid the mistakes of our past and move toward a more just, humane, and equitable future — a future that takes the “mass” out of mass incarceration.

Notable whimper for end of decades long federal prosecution of California medical marijuana dispensary owner

As detailed in posts linked below, nearly 15 years ago, I blogged a bit about some interesting sentencing developments in the federal prosecution of Charles Lynch, a fellow who ran a medical marijuana dispensary in California.  This new Los Angeles Times piece, headlined "He opened a medical pot dispensary in California. The feds spent 16 years prosecuting him," details that the case is only now reaching a resolution.  One needs to read the full piece to get the full story, but here are excerpts to whet appetites:

For nearly 17 years, the federal government has been after Charles Lynch for running a medical marijuana dispensary. Prosecutors refused to drop their criminal case against him even as marijuana became fully legal in California and 23 other states. They refused to let it go when Congress forbade the Department of Justice from using its funds to criminally prosecute medical marijuana activities that were consistent with state law.

Prosecutors have pursued Lynch’s case — which involves conflicting state and federal marijuana laws — through appeals and delays and criticisms that they were spending too many resources on a case that meant so little. “Twenty-five percent of my life,” Lynch, now 61, said in a Southern drawl at a hearing in downtown Los Angeles this month.

When federal authorities launched their probe in 2007, George W. Bush was in the White House and Lynch was a respected businessman in Morro Bay with a three-bedroom ranch-style house in nearby Arroyo Grande. These days, he struggles financially, lives in a single-wide trailer on his mom’s property in New Mexico and strains to remember the details of the marijuana operation that got him in so much trouble....

Lynch and his lawyers have portrayed the case as a pointless exercise by the Department of Justice that has cost taxpayers — who are footing the bill for both the prosecution and his public defenders — millions of dollars. Even the federal judge has expressed impatience, telling the prosecutor: “At some point in time, this case has to be resolved.”

Why the federal government continued to pursue the case so ardently remains unclear — even this week, when it took a new twist that caught everyone involved by surprise.

Prior related posts from 2009:

• Maui wowie: pot sentencing impacted by new federal policy
• Sentencing in medical marijuana case impacted by statutory minimums
• Pot dispensary owner scheduled to be finally sentenced... (and gets a year in prison) 

"Death Is Disparate"

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

The high stakes of capital punishment demand heightened procedural safeguards: death is different, so the maxim goes. One such safeguard is the doctrine of individualized sentencing mitigation, which establishes the defense’s right to introduce expansively open-ended evidence about the defendant’s unique life circumstances when making the case for mercy at the penalty trial.  But some have criticized individualized mitigation for upending prior efforts by the U.S. Supreme Court to establish consistency and fairness in death verdicts.

This Article takes individualized sentencing to its logical limit by considering the doctrinal possibility of “adversarial parity,” whereby open-ended individualization is also extended to aggravating evidence offered by the prosecution when making the case for death.  In exploring this possibility, the Article draws attention to a crucial yet heretofore unexplored dynamic of capital sentencing trials.  Even if aggravation is expanded under a doctrine of adversarial parity, the defense’s evidentiary burden will always be substantially more onerous than the prosecution’s, with the case in mitigation delving into the defendant’s full biopsychosocial history across life.  Death is not only different.  It is also disparate. This Article thinks through some constitutional implications of death’s disparity, offering a new framework for reconceptualizing key tensions in the troubled evolution of Eighth Amendment capital trial doctrine.

New stories suggesting that new west-coast legal approaches failing in face of scourge of fentanyl

A couple of notable press pieces this morning highlight data and developments indicating that the harms of the fentanyl crisis are growing in two notable jurisdictions that have been pursuing less punitive approaches to drug policy.  First, news from Oregon:

"In downtown Portland’s fentanyl crisis, Oregon leaders declare emergency"  Snippets:

Multnomah County, the city of Portland and the state of Oregon are embarking on a 90-day experiment to address downtown Portland’s fentanyl crisis. Tuesday, the three governments jointly declared a fentanyl emergency, directing their agencies to work alongside each other on programs that connect people addicted to the synthetic opioid with treatment programs and to crack down on drug sales....

The declaration comes years after fentanyl rooted itself in the region, spurring deaths, addiction and violent crime. According to Multnomah County, the number of overdose fatalities involving fentanyl increased 533% between 2018 and 2022 in the county. The region has also experienced a serious shortage of substance use treatment providers and recovery centers — despite the 2020 passage of a ballot measure meant to fund new drug treatment programs across Oregon. Measure 110 also decriminalized small amounts of illicit drugs, an aspect that state lawmakers are aiming to renegotiate in this year’s legislative session, which begins next week....

Max Williams, the former state lawmaker who also previously led the Oregon Corrections Department, issued a statement saying the emergency was a good start. “But a permanent fix to Measure 110 is necessary,” he said, citing the 2020 drug decriminalization measure. Williams, with the Coalition to Fix & Improve Measure 110, which is considering a ballot measure this fall, said the state “needs to recriminalize possession of fentanyl and other hard drugs as a Class A misdemeanor to help save lives and rescue communities.”

Second, the New York Times has this lengthy new piece exploring reasons why San Francisco has not been able to replicate the success that Portugal has seen with less punitive drug policies. This piece's full headline reads: "Can San Francisco Solve Its Drug Crisis? Five Things to Consider. A comparison with Portugal’s approach to decriminalization shows why many liberal cities have struggled to match its success."  I highly recommend this piece in full, and here is its start:

San Francisco is in the middle of a drug crisis.  Overdose deaths reached a record high last year, topping 800.  Public drug use is widespread in some neighborhoods.  How did San Francisco get to this point? In part, it follows the national story: The rise of fentanyl, a synthetic opioid, and a destabilizing pandemic caused a spike in addiction and overdose deaths.

But San Francisco’s drug crisis has outpaced the country’s. In 2014, the city’s overdose death rate was roughly in line with the national average. As of last year, its rate was more than double the national average, and San Francisco was No. 4 for overdose deaths among U.S. counties with more than 500,000 people. The country’s overdose crisis worsened over the past decade as fentanyl spread, but San Francisco’s worsened much more quickly.

Local policy changes are partly to blame, some experts say. In 2014, California voters passed Prop 47, reducing drug possession to a misdemeanor from a felony.  Different parts of the state have interpreted the change differently.  In San Francisco, law enforcement has responded by scaling back efforts against drugs, de-emphasizing incarceration and effectively allowing public drug use.

Those who support at least partial decriminalization often cite the experience of Portugal, which decriminalized all drugs more than two decades ago and then saw a decline in drug-related problems.  In 2019, the San Francisco district attorney at the time, George Gascón, even visited Portugal to learn more.  But while San Francisco and other liberal cities have embraced some aspects of Portugal’s decriminalization laws, they have struggled to replicate Portugal’s success.

The comparison with Portugal is not perfect. For one, fentanyl has not taken over Portuguese drug markets, and has a relatively small presence in Europe as a whole.  Still, the comparison gives a way to think about the challenges that San Francisco and other cities have faced.  Those challenges can be broken down into five parts, each touching on a different aspect of drug policy.

"The UCLA Law COVID Behind Bars Data Project: Doing Social Justice Work from Inside a Law School"

The title of this post is the title of this article recently posted to SSRN and authored by Sharon Dolovich.  Here is its abstract:

The UCLA Law COVID Behind Bars Data Project began in the first weeks of the COVID pandemic as a two-tab, crowd-sourced spreadsheet allowing advocates for the incarcerated nationwide to share information about the impact of COVID in prisons and jails.  Almost overnight, that spreadsheet became the go-to national clearinghouse for all available data on COVID in detention.  By mid-2020, the United States Centers for Disease Control (CDC) was populating its prison COVID tracker with the national facility-level data the Project collected each day — and things only escalated from there.  This Essay tells the story of how a law professor, a clinical teaching fellow, and a large group of students, researchers, and volunteers created a social justice organization driven by legal scholarship, data, and crisis.  The Data Project experience, conveyed here in narrative form, offers several generalizable lessons about institution building in the public interest and the unique value of doing such work in the law school environment. 

Ohio becomes first state to have bill introduced for nitrogen gas executions after Alabama's success

As reported in this AP article, "Ohio’s Republican attorney general put his weight behind a legislative effort Tuesday to bring nitrogen gas executions to the state, joining what could be a national movement in pro-death penalty states to expand capital punishment on the heels of Alabama’s first use of the method last week." Here is more:

Attorney General Dave Yost said adding nitrogen gas as an execution alternative in Ohio could end an unofficial death penalty moratorium that Republican Gov. Mike DeWine declared in 2020.  The governor said at the time that lethal injection was “no longer an option” for Ohio because of difficulties finding drugs and repercussions the state could face from drugmakers if one of their pharmaceuticals was used in an execution.  The state’s last execution was in 2018.  “Saying that the law of Ohio should be thwarted because pharmaceutical companies don’t want to sell the chemicals is an abdication of the sovereignty of the state of Ohio, which still has this law on the books,” Yost said.

He was joined at a Tuesday news conference by Republican state Reps. Brian Stewart and Phil Plummer, who introduced a bill Tuesday to add the new method. Alabama used it for the first time Thursday, when convicted murderer Kenneth Eugene Smith, 58, was put to death with nitrogen gas administered through a face mask to deprive him of oxygen.... The Ohio bill would give condemned inmates a choice between lethal injection and nitrogen gas but would require their executions to go forward with nitrogen gas if lethal injection drugs are not available, Stewart said....  

Yost said nitrogen gas is abundant and would be easy for the state to procure from the private sector.  At least one private company, industrial gas distributor Airgas, has announced its opposition to supplying nitrogen for executions. Yost, a former prosecutor and potential 2026 gubernatorial contender, said he is not concerned that the method has been used only once and that Smith appeared to struggle for several minutes as he died....

Plummer, a former county sheriff, said lengthy delays are defeating part of the purpose of Ohio’s death penalty law: “We need some closure for the victims in cases like these ones.”  Stewart criticized DeWine for delaying so many executions over pharmaceutical companies’ unwillingness to see their products used to put people to death.  He noted that Florida and the federal government have continued administering lethal injections while Ohio’s unofficial pause has been in place.  Yost noted that the federal government had a stockpile of drugs, putting it in a potentially different position than Ohio.

Ohio’s last execution was on July 18, 2018, when Robert Van Hook was put to death by lethal injection for killing a man he met in a Cincinnati bar in 1985.  His was the 56th execution since 1999.  Amid the unofficial moratorium, bipartisan groups of lawmakers have repeatedly pushed bills to eliminate the state’s death penalty, including one this session....

DeWine’s spokesman, Dan Tierney, said the governor typically does not comment on pending legislation.  Tierney noted that no death penalty-related legislation, whether for or against, has moved in recent years. 

Ohio has 118 men and one woman on death row, according to the most recent state report.

A few recent related posts:

• Will other states move to nitrogen after Alabama's pioneering success with new execution method? 
• "Will other states replicate Alabama’s nitrogen execution?" 

Vera Institute produces big new report on "People on Electronic Monitoring"

The Vera Institute today released this lengthy new report, titled simply "People on Electronic Monitoring" and authored by Jess Zhang, Jacob Kang-Brown and Ari Kotler.  Here is the "Summary" that begins this 54-page report:

Electronic monitoring (EM) is a form of digital surveillance that tracks people’s physical location, movement, or other markers of behavior (such as blood alcohol level).  It is commonly used in the criminal legal system as a condition of pretrial release or post-conviction supervision — including during probation, parole, home confinement, or work release. The United States also uses electronic monitoring for people in civil immigration proceedings who are facing deportation.

This report fills a gap in understanding around the size and scope of EM use in the United States.  The Vera Institute of Justice’s (Vera) estimates reveal that, in 2021, 254,700 adults were under some form of EM.  Of these, 150,700 people were subjected to EM by the criminal legal system and 103,900 by U.S. Immigration and Customs Enforcement (ICE). Further investigation revealed that the number of adults placed on EM by ICE more than tripled between 2021 and 2022, increasing to 360,000.  This means that the total number of adults on EM across both the civil immigration and criminal legal systems likely increased to nearly half a million during that time.

From 2005 to 2021, the number of people on EM in the United States grew nearly fivefold — and almost tenfold by 2022 — while the number of people incarcerated in jails and prisons declined by 16 percent and the number of people held in ICE civil detention increased but not nearly as dramatically as EM.  Regional trends in the criminal legal system reveal how EM has been used more widely in some states and cities but increased sharply from 2019 to 2021 across the country: The Midwest has the highest rate of state and local criminal legal system EM, at 65 per 100,000 residents; this rate stayed relatively constant from 2019 to midyear 2021.  In the Northeast, EM rates are the lowest of all the regions at 19 per 100,000 residents, but they increased by 46 percent from 2019 to 2021.  The South and West have similar rates, 41 and 34 per 100,000 residents respectively, but the growth rate in the South has outpaced that of the West in recent years — up 32 percent in the South compared to 18 percent in the West.

Prior to this report, the most recent estimate of the national EM population was from a 2015 Pew Charitable Trusts study — which studied the use of criminal legal system EM via a survey of the 11 biggest EM companies.  For this report, Vera researchers collected data from criminal legal system agencies in all 50 states and more than 500 counties, as well as from federal courts, the Federal Bureau of Prisons, and ICE.  Therefore, Vera’s study represents the most comprehensive count of the national EM population to date, as it accounts for the rise of smaller EM companies, immigration system surveillance, and new EM technologies.

For this report, Vera researchers also reviewed existing literature and spoke with local officials to better understand the impacts of EM programs.  Vera’s findings contradict private companies’ assertions that EM technology is low-cost, efficient, and reliable.  EM in the criminal legal system is highly variable and subject to political decisions at the local level. In many jurisdictions, EM is not used as a means to reduce jail populations.  Rather, it is often a crucial component of highly punitive criminal legal systems.  This challenges the dominant narrative that EM is an “alternative to incarceration.”  Nonetheless, this report also highlights several jurisdictions that demonstrate how decarceration can occur alongside reduced surveillance.

"Addicted to punishment: Jails and prisons punish drug use far more than they treat it"

The title of this post the title of this new Prison Policy Initiative briefing by Emily Widra. The subtitle highlights its themes: "Despite the common refrain that jails and prisons are 'de facto treatment facilities,' most prioritize punitive mail scanning policies and strict visitation rules that fail to prevent drugs from entering facilities while providing little to no access to treatment and healthcare." Here is how the briefing starts (with links from the original):

Jails and prisons are often described as de facto mental health and substance abuse treatment providers, and corrections officials increasingly frame their missions around offering healthcare.  But the reality is quite the opposite: people with serious health needs are warehoused with severely inadequate healthcare and limited treatment options. Instead, jails and prisons rely heavily on punishment, while the most effective and evidence-based forms of healthcare are often the least available.

This tension points to a crucial flaw in our nation’s reliance on criminalization: these institutions were never intended to be -- and can never function as -- healthcare providers. Efforts to reverse engineer them as such have proven ineffective, harmful, and financially wasteful, substituting medical best practices with moralizing and surveillance, from providing exclusively abstinence-based education to scanning and photocopying mail in a vain attempt to keep contraband out. This briefing builds on our past work about the unmet health needs of incarcerated people and the endless cycle of arrest for people who use drugs by compiling data on treatment availability versus drug-related punishment in jails and prisons across the country. We find that despite the lofty rhetoric, corrections officials punish people who use drugs far more than they provide them with healthcare.

Valuable reminder that Prez pardons are not the same as expungements

In this post from October 2022 following up Prez Biden's first major (but still minor) decision to grant pardons to federal marijuana possession offenders, I lamented that he missed an important opportunity to prod Congress to follow the lead of so many states in expanding mechanisms to seal or expunge past convictions.  At the federal level, no general record relief laws are in place (though a number of bills have been proposed to remedy this legal gap), and that means many thousands of low-level federal offenders can only hope for a presidental pardon and, even if getting an act of clemency, such relief does not formally operate to expunge their  convictions.

That old post came to mind upon seeing this new piece at Marijuana Moment by Kyle Jaeger headlined "  Biden Falsely Suggests Marijuana Pardons ‘Expunged’ Records And Released Prisoners While Campaigning On ‘Promises Kept’."  Here are excerpts (with links from the original):

President Joe Biden is again inflating the impact of his pardons for marijuana offenses, falsely suggesting that his act of clemency “expunged” records and that people were released from prison.  “A promise made and a promise kept,” he said during a campaign speech in South Carolina on Saturday.  “I keep my promises when I said no one — no one — should be in prison for merely possessing marijuana or using it, and their records should be expunged,” Biden said.

The president has routinely framed the mass cannabis pardon as an example of him fulfilling campaign pledges, but he’s also frequently misstated the practical effects of the action.  A presidential pardon represents formal forgiveness from the government, but it does not expunge the record.

Several thousands of people have received the pardon for federal marijuana possession offenses under a pair of proclamations issued in 2022 and last month. The Justice Department has been distributing certificates to eligible people who apply for the largely symbolic document.   “The pardon means that you’re forgiven, but you still have a criminal record,” the certificate says.

Also, of those thousands who earned the clemency, no one was released from prison as a result, despite Biden insinuating as much. Federal prosecutions for possession alone are very rare.  Advocates have pointed out, however, that there are still people in federal prison over other non-violent marijuana offenses....

But by repeatedly touting his mass cannabis pardon, it seems Biden is aware of the political popularity of marijuana reform. And a recent poll suggests he stands to gain significantly in terms of favorability if his scheduling directive results in a reclassification under federal law.  It found that voters’ impression of the president jumped a net 11 points after hearing about the possible implications of the rescheduling review — and that includes an 11-point favorability swing among young voters 18-25 who will be critical to his reelection bid.

Federal judge criticizes ex-IRS tax leaker (and DOJ) when imposing five-year sentence

I flagged today's notable DC sentencing in this post last night, and this lengthy CBS News accounting of the sentencing highlights that there were some notable comments from the judge.  Here are snippets from the press report:

The Internal Revenue Service contractor who pleaded guilty to leaking the federal tax records of former President Donald Trump and some of the nation's wealthiest individuals was sentenced Monday to 5 years in prison, 3 years supervised release and a $5,000 fine. The sentence brings an end to a criminal case that exposed the source of a number of high-profile tax information leaks in recent years.

Charles Littlejohn, 38, pleaded guilty to one count of unauthorized disclosure of tax returns and return information in October and faced a maximum sentence of 5 years in prison. Investigators said he used his position as a contractor with the nation's tax collector to illegally obtain and then disperse the financial records of the former president, which resulted in "numerous articles" based on the information.

Before sentencing Littlejohn on Monday, federal District Judge Ana Reyes called his conduct "an attack on our constitutional democracy." "He targeted the sitting president of the United States of America, and that is exceptional by any measure," Judge Reyes said. "It cannot be open season on our elected officials."...

Littlejohn's explanations did not appear to sway the court's sentencing decision. Reyes said courts must be an "unbreakable bulwark" for American democracy in the face of increased threats. The court's job, the judge said, was to make sure that others never viewed "this type of conduct as acceptable or justifiable or worth the trade-off…We are a nation of laws."...

The Justice Department's court filing revealed that the other tax returns Littlejohn admitted to acquiring dated as far back as 15 years, and they belonged to thousands of the nation's wealthiest Americans. Investigators alleged he mailed a storage device containing the information to another unnamed news organization, identified by CBS News as ProPublica....

The judge appeared frustrated at times with prosecutors as she wrestled with a guideline sentencing range of just 18 months and a crime that she said warranted serious punishment and deterrence.  Reyes asked prosecutor Jonathan Jacobson for information on any additional charges Littlejohn may have faced if he had opted not to enter the guilty plea, but the government attorney did not provide further detail.  "The fact that he did what he did and he is facing one felony count, I have no words for," the judge said, with exasperation in her voice.

Especially in light of some recent blog comment discussions about plea deals and DOJ transparency, I find it interesting that the DOJ apparently rebuffed the sentencing judge's efforts here to find out any more information about DOJ's notable charging and bargaining decisons in this case. I guess what happens inside DOJ, stays inside DOJ.

UPDATE: The comment thread here started a discussion of the terms of plea deal in this case.  Attorney Webb Wassmer kindly sent me a copy of the (public) plea agreement agreement (which was filed back in October 2023), and other case documents accessed from the court website.  I have posted the plea agreement below, and here is a snippet of his helpful summary:

[The agreement calculated] him at total offense level 11, CH I, for a range of 8-14 months with a further reduction possible, [but] there was no agreement as to actual sentence, with the Government stating that it would seek an upward departure and/or variance.

[T]here is a limited appeal waiver. Most significantly, defendant reserved the right to appeal if the Court granted an upward departure or variance above the advisory guideline range identified at sentencing. Thus, he can appeal the five year sentence. As others have noted, that type of appeal almost never succeeds.

Download Littlejohn Plea Agreeement 10-12-23

"Will other states replicate Alabama’s nitrogen execution?"

The question in the title of this post is the headline of this lengthy AP article.  I think an important related question in whether a new execution method might enable more states to increase the pace of executions (which have averaged less than two per month nationwide over the last decade after averaging double or triple that rate in prior decades).  Here are some excerpts from the AP piece:

Alabama’s first-ever use of nitrogen gas for an execution could gain traction among other states and change how the death penalty is carried out in the United States, much like lethal injection did more than 40 years ago, according to experts on capital punishment.

Alabama Attorney General Steve Marshall said Friday that the execution of Kenneth Eugene Smith, a 58-year-old convicted of a 1988 murder-for-hire, went off as planned and his office is ready to help other states if they want to begin nitrogen executions. “Alabama has done it, and now so can you,” Marshall said at a news conference.

At least some prison officials in other states say they hope to closely analyze how the process worked in Alabama and whether to replicate it in their states. Oklahoma and Mississippi already have laws authorizing the use of nitrogen gas for executions, and some other states, including Nebraska, have introduced measures this year to add it as an option. “Our intentions are if this works and it’s humane and we can, absolutely we’ll want to use it,” said Steven Harpe, director of Oklahoma’s prison system....

Oklahoma was the first state to contemplate the use of nitrogen gas nearly a decade ago after the 2014 botched execution of Clayton Lockett who clenched his teeth, moaned and writhed on the gurney before a doctor noticed a problem with the intravenous line and the execution was called off before Lockett died, 43 minutes after the procedure began. A later investigation revealed the IV had become dislodged and the lethal chemicals were pumped into the tissue surrounding the injection site instead of into his bloodstream.

Numerous other states, including Alabama, have had problems for years administering lethal injection or obtaining the deadly drugs, particularly as manufacturers, many of them based in Europe, have objected to their drugs being used to kill people and prohibited their sale to corrections departments or stopped manufacturing them altogether.  Even as some death penalty states remain committed to pursuing the executions, capital punishment is undergoing a yearslong decline of use and support, and more Americans now believe the death penalty is being administered unfairly, according to a recent annual report.

A few recent related posts:

• Alabama officially sets execution date for historic effort to use nitrogen gas for completing death sentence
• Federal district judge concludes condemned has not shown Alabama's nitrogen gas execution protocol is constitutionally infirm 
• Is Alabama going to be able to go forward with an historic execution this week? 
• Federal courts so far refusing to block Alabama's plan to be first-of-its-kind, second execution
• Will other states move to nitrogen after Alabama's pioneering success with new execution method? 

US Sentencing Commission releases its "Interactive Case Law Update" for 2023

I saw from the US Sentencing Commission website that the USSC last week released here its latest (now-annual) installment of its helpful circuit caselaw publication now titled "Inereacrive Case Law Update."  Here is how the USSC wedbsite describes this installment (which runs nearly sixty detailed pages):

Case Law Update provides brief summaries of select Supreme Court and appellate court decisions that involve the guidelines and other aspects of federal sentencing. Each quarterly release is replaced with a cumulative update. Cases appear in descending chronological order within a circuit.  Click the button below to access the interactive PDF and search by topic or circuit. Click the "Back to Home" text at the bottom of each page to return to the map and list of topics. 

Notable players and politics surrounding sentencing of leaker of Prez Trump's and many others tax records

A notable sentencing of a notable crime is scheduled for Monday morning in DC, and this new Roll Call piece provides links to the sentencing arguments and notes the interesting people and politics connected to the case.  The piece is headlined "Lawmakers back maximum prison sentence in tax record leak case," and here are extended excerpts (with helpful links from the original):

Members of Congress have backed a tough prison sentence for a man who pleaded guilty to leaking to the media tax records of Donald Trump, Sen. Rick Scott and billionaires Elon Musk, Warren Buffett and Jeff Bezos.  A sentencing hearing is set for Monday morning in Washington for Charles Littlejohn, a former contractor for the Internal Revenue Service, on one charge of disclosing tax return information without authorization.

Prosecutors have recommended that Judge Ana C. Reyes of the U.S. District Court for the District of Columbia sentence Littlejohn to five years in prison, arguing that he leaked the returns of over a thousand people, damaging the tax system and the public trust.  Prosecutors said the “unparalleled” disclosure warranted the maximum statutory sentence.  “There simply is no precedent for a case involving the disclosure of tax return and return information associated with ‘over a thousand’ individuals and entities,” prosecutors wrote.

Scott, R-Fla., announced Thursday that he was one of the people whose tax information was leaked by Littlejohn and said he intended to read a victim impact statement during Monday’s hearing.  Scott also published a letter that asked Attorney General Merrick B. Garland to attend and criticized prosecutors for allowing Littlejohn to plead guilty to a single criminal charge.  Scott wrote that Littlejohn’s crimes were “entirely aligned with the agenda of the Biden administration” and that Garland had politicized the Justice Department.  “Since you have steered the Justice Department down this partisan political path, you should be on hand personally to in some way be accountable,” Scott wrote....

Republican members of the House Ways and Means Committee, in a letter to the judge, criticized the DOJ’s handling of the case, particularly the fact that Littlejohn pleaded guilty to only one criminal count.  The letter, led by committee Chairman Jason Smith, R-Mo., argued Littlejohn took great steps to damage the tax system and evade justice and should receive the maximum five-year prison sentence.  “Mr. Littlejohn’s actions showed disdain for the rule of law and American confidence in our voluntary tax system.  He acted with an apparent political motivation and perhaps with an intent to impact a Presidential election,” the letter states.

According to court papers, Littlejohn stole information about “Public Official A” over several months in 2019 and provided them to a news organization which later published them.  In September 2020, The New York Times published a lengthy investigation about former President Trump’s finances, which showed he routinely lost money and paid little in taxes.  Littlejohn later stole information on thousands of wealthy taxpayers in 2020, according to court documents.  He later provided that information to another news organization, according to court documents, which published them in 2021....

In a filing last year in court, the government and Littlejohn stipulated to a sentencing guidelines recommendation for between eight and 14 months in prison, but both sides reserved the right to push for departures from those guidelines.  Littlejohn’s attorneys have argued for leniency, saying that Littlejohn believed he was acting in the public interest after becoming concerned about income inequality and tax dodging.  “He did not disclose the information for personal gain; nor did he intend to harm the taxpayers,” the sentencing memorandum said.

Some weekend pieces with a focus on prison stories and commentary

My various feeds have been highlighting that tonight's episode of 60 Minutes will have a feature story about the federal prison system titled "Agency in Crisis: The Bureau of Prisons is plagued by understaffing, abuse, and disrepair. This Sunday, Cecilia Vega gets rare access inside a women’s federal prison in Alabama."  I have my DVR set (football gets my live attention), and I also noticed in recent days another group of press pieces and commentary about other prison stories.  Here is a round up:

From Filter, "As Prisons Shutter Classes and Mental Health Care, Drugs Fill the Gap"

From the Richmond Times-Dispatch, "Under Gov. Youngkin, prison reform is working"

From the Seattle Times, "Kimonti Carter was freed from life in prison. Prosecutors want to send him back."

From the Washington Post, "My dad was ill. Could he survive the prison health-care system?"

From wbur, "Mass. will close its oldest men's prison, MCI-Concord, by summer"