Sentencing Law and Policy

A few legal musings about the prospect of Prez Biden commuting all federal capital sentences

Articles published last week from the New York Times and the Washtington Post discussed campaigns urging Prez Joe Biden to commute the capital sentences of all convicted murderers on federal death row.  Now the Wall Street Journal has this new "exclusive" report, headlined "Biden Weighs Commuting Sentences of Death Row Inmates," which gets started this way:

President Biden is considering commuting the sentences of most, if not all, of the 40 men on the federal government’s death row, people familiar with the matter said, a move that would frustrate President-elect Donald Trump’s ability to resume the rapid pace of executions that marked his first term....

A decision from the president could come by Christmas, some of the people said.  A principal question is whether the president should issue a blanket commutation of all the condemned men, or whether death sentences should remain for the most heinous convicts, these people said. 

According to the WSJ, "Attorney General Merrick Garland ... has recommended that Biden commute all but a handful of the sentences, ... excepting a few terrorism and hate-crimes cases."  Also notable, as reported in this Vatican News story, is broader advocacy from the Pope:

Pope Francis and US President Joe Biden spoke with each other in a phone call overnight on 19 December....  The two leaders discussed "efforts to advance peace around the world during the holiday season," according to a White House statement....  The President "also graciously accepted His Holiness Pope Francis’s invitation to visit the Vatican next month."  In a subsequent statement, the White House press secretary noted Biden will be in Rome from 9-12 January [and that] the audience with the Pope is scheduled for 10 January....

One of the issues that is particularly close to the Pope's heart is the fate of prisoners on death row.... The Pope has described the death penalty as an act "at odds with Christian faith" and one that "eliminates all hope for forgiveness and rehabilitation."  During the Angelus on the Feast of the Immaculate Conception on 8 December, the Holy Father called on the faithful to "pray for the prisoners who are on death row in the United States."...  "Let us pray," he said, "that their sentence be commuted, changed.  Let us think of these brothers and sisters of ours and ask the Lord for the grace to save them from death."  

I have been expecting Prez Biden to commute at least a few capital sentences on his way out of the Oval Office.  Prez Obama commuted two death sentences during his last week in office, and capital clemency has a rich modern history at the state level.  But these press reports have me thinking blanket or near-blanket commutation for all of federal death row is a real possibility and perhaps real soon (though maybe not until just before or just after Prez Biden meets with the Pope).  Though I will leave it to others to discuss the morality and the politics of blanket federal capital commutations, I wanted to muse here about a few legal matters:

1.  Because there are some pending federal capital prosecutions, including 9/11 terrorists at GTMO and the racist mass shooter who murdered 10 in Buffalo (and perhaps also even the recent murder of the UnitedHealthcare CEO), an effort to preclude all possible future executions might need to include murderers beyond those already sentenced to death.  There are ways to write up a broad clemency order that would apply to all pending cases, and it will be interesting to see if anti-capital commutations extend to pending cases as well as past ones.

2.  Because broad federal capital commutations will surely be controversial, I wonder if any states could or would try to secure death sentences for murderers spared by Prez Biden.  For example, I believe Pennsylvania held state capital charges in abeyance while DOJ sought and secured a federal capital sentence for the Tree of Life Synagogue mass murderer.  Were this mass murderer to escape a federal capital sentence, perhaps state capital charges would begin again.  Practically, I suspect there are only a very few cases in which a state could pursue their own capital charges (and a number of federal capital defendants committed murders in states without the death penalty).  

3.  Because broad federal capital commutations will surely be controversial, I wonder if the future Trump Department of Justice might explore the possibility of capital reprosecutions.  That might sound peculiar, but the Biden Department of Justice pursued unresolved fraud charges against Philip Esformes after his prison sentence had been commuted by Prez Trump.  Many folks expressed concern about what seemed like an end-run around a presidential clemency grant; I had the honor of testifying at a congressional hearing on the topic, and I've been deeply concerned about a new norm of future administrations looking for ways to undo some past clemency grants.  Practically, I suspect reprosecution efforts unlikely, especially if Prez Biden leaves some murderers on federal death row, but I am still grumpy the Biden DOJ created a precedent for doing so.

4.  Because federal capital commutations will be, presumably, to a term of imprisonment of life, it could be possible for the recipients to seek a future reduction of their prison sentence thanks to a key provision of the First Step Act signed into law by Prez Trump.  Specifically, 18 U.S.C. § 3582(c) now provides authority for a judge to "reduce the term of imprisonment" on a defendant's motion when certain (fairly stringent) conditions are met.  Though I can imagine viable arguments that murderers serving LWOP-commuted-death sentences are categorically ineligible for so-called "compassionate release," I still would expect some (many?) of those who get death sentences commuted to, at some point, try to also get their imprisonment term reduced.

Rounding up some new stories about state clemency activity

Federal clemency issues remains robust with both the out-going and in-coming President generating news and commentary.  Though I am sure to have many more posts on the federal front in the days and weeks ahead, I was pleased to see a few recent stories about Governors granting clemency that should not get overlooked.  Here is a round up:

From Colorado: "Colorado governor issues 22 pardons and commutes sentences of 4 people, including 2 men convicted of murder"

From Missouri: "Missouri Governor Mike Parson Clears Clemency Backlog, Grants 16 Pardons, and 9 Commutations at End of Term"

From New York: "Hochul grants clemency to 22"

From Tennessee: "Gov. Lee grants executive clemency to more than 40 people"

As noted in recent posts linked below, a few other state governors have also used their clemency pen in notable ways earlier this month. But, obviously, there are a lot more Governors who have not made clemency news than those who have. And it will be interesting to see if all the clemency controversy at the federal level could impact how Governors use their powers.

A few of many prior recent related posts:

• Ohio Gov DeWine adds to clemency conviviality with pardon event 
• After seven years in office, NJ Gov finally finds his clemeny pen to grant 33 pardons and three commutations
• Imagining better clemency traditions than turkey pardons and lame-duck frenzies

UPDATE ON CHRISTMAS EVE (in the AM):  Based on latest headlines, it seems at least three more Governors got into the holiday clemency mood:

From Michigan: "Michigan Gov. Gretchen Whitmer pardons 3, commutes sentences of 5"

From North Carolina: "Cooper pardons 9, commutes sentences for 6, including former NC teen convicted of murder"

From Texas: "Gov. Greg Abbott pardons four Texans but stays silent on Robert Roberson" 

CCJ updates short reports on the impact of the First Step Act on recidivism and time served

The First Step Act (FSA), which was signed into federal law on December 21, 2018, by then-Prez Donald Trump, celebrates its sixth birthday tomorrow.  Well-timed for a well-justified celebration, the Council on Criminal Justice (CCJ) have produced two updated data reports on notable FSA implementation issues.  (I flagged in this post and this post from last year CCJ's very valuable initial data  analyses.)  Here are the titles, links and substantive introduction to these updated pieces both authored by Avinash Bhati:

"First Step Act: An Early Analysis of Recidivism"

Recidivism Rates

Recidivism rates were 55% lower for people released under the FSA.

The BOP defines recidivism as any rearrest or return to federal prison for a new crime or technical violation of supervision, regardless of the outcome of that arrest (whether a person is charged or convicted). According to the BOP's published data, the recidivism rate for all people released under the FSA is 9.7%.2 While that is considerably lower than the 44.8% recidivism rate3 for all people released from BOP facilities in 2019, people released under the FSA differ in important ways from all persons released from federal prisons; the differences include their assessed risk level and the length of time they have been out of prison. To account for these differences, this analysis estimates recidivism among people released prior to the implementation of the FSA who are similar to people released under the FSA in two key ways: (1) they had a similar risk assessment classification according to BOP’s current risk assessment tool, and (2) they had been released to the community for a similar amount of time.

The analysis shows that people released prior to the FSA who were at similar risk of reoffending and had similar amounts of time in the community had an estimated recidivism rate of 21.5%. This means the recidivism rate for people released under the FSA is roughly 55% lower than similarly situated people released prior to the FSA.4 The analysis also found lower rates of recidivism among people released under the FSA within each of the four risk levels as assessed by BOP's risk assessment tool.

"Time Sentenced and Time Served: Exploring the Impact of the First Step Act"

People released under the FSA in 2023 served 7.6% less of their imposed prison term than similarly situated people released prior to the FSA.

This analysis estimates the share of the imposed prison term served by the 14,727 people released under the FSA in 2023. It compares that estimate against the share of the imposed prison term (which does not include any required post-release supervision) served by a group of individuals released from BOP prior to the FSA who were convicted of the same primary offense.

People released under the FSA in 2023 are estimated to have served 82.1% of their imposed prison term, on average. An equal group of similarly situated people released from BOP before the FSA was implemented are estimated to have served an average of 89.7% of their imposed prison term.  Therefore, people released under the FSA served 7.6% less time than similarly situated people in the BOP, on average.  To use a hypothetical example, prior to the implementation of the FSA a person with an imposed prison term of 60 months could expect to serve 54 months, on average. After passage of the act, that same person could expect to serve 49 months, on average — five months less.

"The Prison Discovery Crisis"

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

For incarcerated people litigating pro se, the civil discovery process is of vital importance.  Without meaningful access to discovery, imprisoned litigants’ cases become swearing contests they are bound to lose, and wrongdoing in prison goes unaddressed.  Yet for these same plaintiffs, civil discovery is defunct.  The vast majority of incarcerated plaintiffs, including those with promising or meritorious claims, are unable to navigate either to or through litigation’s discovery phase.  Part diagnosis and part treatment, this Article is the first to explore in depth how the discovery process — as designed and implemented — fails those pursuing civil-rights claims against their jailers, betraying both a crisis in prison litigation and a failure of our procedural regime.

Relying on both case research and extensive interviews with federal judges, staff attorneys, prison rights lawyers, formerly incarcerated people, and prison officials, the Article chronicles prison discovery’s written and unwritten rules and their failures.  It begins with the Federal Rules of Civil Procedure, which map awkwardly or not at all onto prison litigation.  It then discusses the much broader amalgam of practical impediments to evidence-gathering in prison. These include profound informational asymmetries, resource disparities, and hostility between prison defendants — who create and control much of the evidence relevant to incarcerated people’s claims — and imprisoned plaintiffs.

The Article then scrutinizes the dockets and filings of 200 recent federal cases arising out of two different prisons in two different districts: Louisiana State Penitentiary in Louisiana and Menard Correctional Center in Illinois.  The research reveals differences between the districts’ case-management decisions and cultures, resulting in profound disparities in prison litigants’ discovery prospects.  Incarcerated litigants’ current chances of evidencing and vindicating claims may be largely contingent on the district in which their prison sits — what some incarcerated people call “justice by jurisdiction.”  Arguing that this situation is both untenable and preventable, the Article suggests multiple concrete avenues for reform.

The Sentencing Project releases review of "Top Trends in Criminal Justice Reform, 2024"

The folks at The Sentencing Project today released this new report reviewing a number of state criminal justice reform developments in this past year.  Though the report is not detailed or comprehensive, I still recommend the short report in full for its broad coverage of various state-lelvel developments.  Here is its opening "overview":

The United States has one of the highest incarceration rates in the world.  Nearly two million people -- disproportionately Black -- are incarcerated in the nation’s prisons and jails.  In the early 1970s, 360,000 persons were incarcerated in correctional facilities.

Criminal legal reform trends in 2024 were divergent at a time when politicians used punitive-sounding talking points to move voters fearful of a recent uptick in crime.  However, stakeholders, including formerly incarcerated activists and lawmakers, saw some success in scaling back mass incarceration.  Advocacy organizers and officials in at least nine states advanced reforms in 2024 that may contribute to decarceration, expand and guarantee voting rights for justice impacted citizens, and advance youth justice reforms.

Death Penalty Information Center releases its annual year-end report, "The Death Penalty in 2024"

The Death Penalty Information Center (DPIC) has a tradition, following the final scheduled execution of a calendar year, of releasing a year-end report with lots of data and other information about capital punishment's administration in the US.  DPIC is critical of problems in the application of the death penalty, and its annual report is often styled to suggest the death penalty is in decline; that has not changed this year even though the total number of death sentences and executions ticked up slightly in 2024.  This year's report is fully titled "The Death Penalty in 2024: Death Sentences and Executions Remain Near Historic Lows Amid Growing Concerns about Fairness and Innocence," and here is its executive summary:

The num­ber of new death sen­tences in 2024 increased from 2023, with 26. The num­ber of peo­ple on death row across the United States has con­tin­ued to decline from a peak pop­u­la­tion in the year 2000.

Public sup­port for the death penal­ty remains at a five-decade low (53%) and Gallup’s recent polling reveals that more than half of young U.S. adults ages 18 through 43 now oppose the death penal­ty. Fewer peo­ple found the death penal­ty moral­ly accept­able this year (55%) than last year (60%).

Significant media atten­tion, pub­lic protest, and sup­port from unlike­ly allies in the cas­es of Marcellus ​“Khaliifah” Williams, Robert Roberson, and Richard Glossip ele­vat­ed the issue of inno­cence in 2024, as the United States marked the mile­stone of 200 death row exonerations.

No indi­vid­ual death-sen­tenced per­son received clemen­cy in 2024, the first year since 2016 with­out any clemen­cy grants. At least two mass clemen­cy cam­paigns are pending decisions.

Death penal­ty-relat­ed leg­is­la­tion was enact­ed in at least six states to lim­it use of the death penal­ty, alter exe­cu­tion meth­ods or pro­to­cols, mod­i­fy pro­ce­dures, and increase secre­cy. Abolition efforts con­tin­ue in more than a dozen states, and efforts to rein­tro­duce the death penal­ty in eight states failed. Only one effort to expand the death penal­ty to non-homi­cide crimes was successful.

The 1600th exe­cu­tion in the mod­ern death penal­ty era occurred in September 2024. The num­ber of peo­ple exe­cut­ed in 2024 remained near­ly the same as 2023, with 25 exe­cu­tions occur­ring in nine states. This was the tenth con­sec­u­tive year with few­er than 30 exe­cu­tions. Utah, South Carolina, and Indiana con­duct­ed their first exe­cu­tions after more than a decade hia­tus. Alabama became the first state to use nitro­gen gas to execute prisoners.

The United States Supreme Court has large­ly aban­doned the crit­i­cal role it has his­tor­i­cal­ly played in reg­u­lat­ing and lim­it­ing use of the death penalty.

The death penal­ty has been abol­ished in prac­tice or in law in a major­i­ty of coun­tries around the world (144), and 2024 saw legal abo­li­tion efforts progress in four more coun­tries. Despite this, glob­al exe­cu­tions increased in 2024 for the third straight year, led by Iran.

The full report includes lots more interesting capital punishment administration data and other information. I am always grateful for the detail accounting DPIC of death sentences that DPIC maintains (and I will there was a comparable resource for LWOP sentences).

US Sentencing Commission votes on (first?) set of notable "Proposed Amendments to the Sentencing Guidelines (Preliminary)"

As previously noted here, the US Sentencing Commission held a public meeting this afternoon which included unanimous votes to "Publish Proposed Guideline Amendments and Issues for Comment."  Interestingly, before the vote on the proposed amendment, the "Report from the Chair" included a statement by USSC Chair Judge Carlton Reeves that there could be additional future proposed amendments coming from the Commission in January related to the drug guidelines and supervised release issues.  For this meeting, there were five proposed amendments on the topics of simplification, criminal hisotry, firearm offenses, circuit conflicts and retroactivity.  I will update this post when the USSC provides links to its proposals.

UPDATE:  Here is the main text of this Commission press release discussing its proposed amendments:

Today the bipartisan United States Sentencing Commission voted unanimously to publish proposed amendments to the federal sentencing guidelines for the amendment cycle ending May 1, 2025 (watch the meeting).  These proposals stem from public input the Commission has received in recent years, including more than 1,200 pages of comments on what work the agency should prioritize this amendment cycle. Among today’s proposals are those that would: 

• create an alternative to the “categorical approach” used in the career offender guideline to determine whether a conviction qualifies a defendant for enhanced penalties; 
• simplify the “three-step” approach that courts currently use when applying the guidelines; 
• address the guidelines’ treatment of devices designed to convert firearms into fully automatic weapons; 
• add a mens rea requirement to the sentencing enhancement for use of stolen firearms; and 
• resolve certain circuit conflicts regarding guideline application.

“We look forward to hearing from the public about these proposals in light of the Commission’s statutory obligation to promote fairness in sentencing, end unwarranted disparities, and ensure sentences reflect the latest data, research, and science,” said Judge Carlton W. Reeves, Chair of the Commission.  “Over the next month, the Commission will consider whether to publish additional proposals that reflect the public comment, stakeholder input, and feedback from judges that we have received over the last year -- including at the roundtables we have held in recent months on drug sentencing and supervised release.”

The Commission is seeking comment on these proposals through February 3, 2025 with a reply period closing on February 18, 2025. The public is encouraged to submit comment through the agency’s comment portal available here.  A public hearing will be scheduled on these proposals in early 2025.  Official text of proposed amendments and issues for comment will also be published in a forthcoming edition of the Federal Register. “We welcome your comments,” said Chair Reeves.

This USSC webpage provides a helpful summary of the coverage of the proposed amendments.  The full "reader-friendly" text of these proposals clocks in at 665 pages (thank goodness it did not turn evil with just one more page)!

Oklahoma completes last (and 25th) execution in the US for 2024

As reported in this AP piece, an "Oklahoma man who killed a 10-year-old girl in a cannibalistic fantasy died by lethal injection Thursday in the nation’s 25th and final execution of the year."  Here is more:

Kevin Ray Underwood was pronounced dead at 10:14 a.m. at the Oklahoma State Penitentiary in McAlester, state Department of Corrections spokesperson Lance West said. It was Oklahoma’s fourth execution of the year, and it took place on Underwood’s 45th birthday. Oklahoma uses a three-drug lethal injection process that begins with the sedative midazolam followed by a second drug that paralyzes the inmate and a third that stops their heart.

Underwood, a former grocery store worker, was sentenced to die for killing Jamie Rose Bolin in 2006. Underwood admitted to luring Jamie into his apartment and beating her over the head with a cutting board before suffocating and sexually assaulting her. He told investigators that he nearly beheaded Jamie in his bathtub before abandoning his plans to eat her....

Underwood’s attorneys had argued that he deserved to be spared the death penalty because of his long history of abuse and serious mental health issues that included autism, obsessive-compulsive disorder, bipolar and panic disorders, post-traumatic stress disorder, schizotypal personality disorder and various deviant sexual paraphilias. Prosecutors argued that many people suffer from mental illness, but that doesn’t justify harming children.

With two executions this week (this one and one in Indiana), a bit of recent death penalty history has been made.  It's been more than a quarter century since the US has had two executions this close to Christmas.  In addition, 25 total executions for the year equals the most for a single year in the US since 2015.

Notable reviews from Reason on Prez Biden's uninspired criminal justice record

The folks at Reason have devoted the new issue of their magaziine to "giving performance reviews of Joe Biden's presidency."  The issue includes ten review articles, and at least two ought to be of particular interest to criminal justice fans.  Here are full headlines, links, and short excerpts from the start of each piece: 

"What Happened to Biden's Ambitious Criminal Justice Reform Plans?: Joe Biden ran on some good ideas to reform policing and incarceration, which he mostly failed to deliver."

To win the Democratic primaries four years ago, Joe Biden had to take a left turn on criminal justice, offering voters a smorgasbord of reforms to a carceral system he had helped build over his decades as a tough-on-crime senator. As Biden's presidency sputters to an end, the White House has made strides on some of those goals but failed to deliver on many others.

"Biden Failed To Deescalate the Drug War: Though he commuted some drug offenders' sentences, Biden never delivered on the rest of his drug reform promises."

When he was hired for his current position, Joe Biden set ambitious goals for himself on the drug policy front. He promised to "eliminate mandatory minimums"; "end, once and for all, the federal crack and powder cocaine disparity"; "decriminalize the use of cannabis and automatically expunge all prior cannabis use convictions"; and "use the president's clemency power to secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes."  As president, Biden had the unilateral power to accomplish just one of these five things. Not coincidentally, that is the only action item on which he made progress after starting work in January 2021.

"Crime in 2024: A Historic Drop in Murder with Declining Violent and Property Crime"

The title of this post is the title of this new substack entry from Jeff Asher reporting (a bit prematurely) on various data on crime trends in the year 2024 with two weeks to go.  Here is some of the text and links from the start of the post:

America’s crime trends in 2024 were remarkably positive with an enormous decline in murder, a continued small but steady decline in violent crime, and a sizable decline in motor vehicle theft on the heels of several years of surges. The nation’s murder rate has largely erased the post-COVID surge and was roughly around or 2019’s level while reported violent and property crime were likely amongst the lowest rates recorded since the 1960s and 1970s.  This assessment is based on an evaluation of data from multiple official and unofficial data sources all painting the same picture.

Murder likely fell at the fastest rate ever recorded in 2024 after falling at the fastest rate ever recorded in 2023 based on an assessment of 2024 crime data from numerous sources.  The Real-Time Crime Index has murder down 16 percent in 309 cities with available data through October 2024, the FBI has murder down 23 percent through June (though it’s almost certainly overstating the decline), the CDC has homicide down 14 percent through May (provisional count), and the Gun Violence Archive has fatal shootings down more than 11 percent as of mid-December.

Not every city in America is experienced a decline this year, and even cities with sharp declines have massive room for continued improvement. Still, the data from many individual cities is remarkable.  As of late November, murder was down more than 40 percent in Philadelphia through late November, down 23 percent in Memphis, down 38 percent in New Orleans, down 15 percent in Los Angeles (where murder was up as of midyear), down 29 percent in DC, down 24 percent in Baltimore, down 20 percent in Kansas City, and I could go on.

The full post has much more data,and lots of charts and graphs, and is worth reading in full. The short story is that the latest crime data is very encouraging and we should all hope recent trends continue.

Indiana completes execution of mass murderer, its first since 2009

As reported in this USA Today article, "Indiana has executed its first inmate in 15 years, as Joseph Edward Corcoran was declared dead before sunrise on Wednesday morning." Here is more:

Corcoran, 49, was convicted in 1999 for the 1997 quadruple murder of his older brother, sister's fiancé and their two friends. He committed the homicides with a semi-automatic rifle, and at the home he lived in with his older sister and brother in Fort Wayne, Indiana.

Corcoran, who was 22 at the time, killed his brother, 30-year-old James Corcoran; his sister's fiancé, 32-year-old Robert Scott Turner; and their two friends, 30-year-old Timothy Bricker and 30-year-old Douglas Stillwell.

Before Corcoran's execution, his attorneys filed a request at the Indiana Supreme Court asking them to consider his client's competency due to his paranoid schizophrenia diagnosis in 1999. The court denied the attorneys' request on Dec. 5....

Corcoran died at 12:44 a.m. CST after being given a lethal dose of pentobarbital.... After the execution, Gov, Eric Holcomb said, "Joseph Corcoran’s case has been reviewed repeatedly over the last 25 years — including 7 times by the Indiana Supreme Court and 3 times by the U.S. Supreme Court, the most recent of which was tonight. His sentence has never been overturned and was carried out as ordered by the court.”

"The Rule of Lenity and Affirmative Defenses"

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

The rule of lenity is undergoing a renaissance.  Lenity requires courts to construct ambiguous penal statutes narrowly. In recent years, scholars have sought to reinvigorate lenity as an important tool for combatting the American crisis in overcriminalization.  At the same time, the Supreme Court has issued a series of decisions debating the breadth and importance of lenity.  This Article contributes a new and unexplored dimension to the growing scholarship on lenity by considering lenity’s implications for affirmative defenses.

Affirmative defenses negate criminal liability, and they fall into three categories: justifications, excuses, and public policy defenses.  Justifications, like self-defense, render conduct non-criminal; justified conduct is permissible conduct.  Excuses, like insanity, render an actor non-punishable, despite their criminal conduct, because the actor is not an appropriate subject for blame.  Excused conduct is thus impermissible yet also unpunishable.  Finally, public policy defenses preclude punishment for justification-like or excuse-like reasons; they either vitiate an act’s wrongfulness (justification-like) or prevent punishment even though the act was wrongful (excuse-like).  Along with criminal statutes, affirmative defenses define the boundaries of what the state can punish.

This Article advances a novel claim: lenity applies to justifications and justification-like public policy defenses but not excuses or excuse-like public policy defenses.  Because justificatory defenses render conduct non-criminal, they effectively narrow the scope of a penal statute — the broader the justification, the narrower the penal statute.  Excusatory defenses, however, do not alter the scope of the criminal law.  They preclude punishment despite an act’s criminal character, so they do not affect the breadth or narrowness of penal statutes and do not implicate lenity. Lenity thus applies to justificatory defenses but not excusatory ones.

The consequences of applying lenity to justificatory defenses are profound. As a practical matter, it helps ordinary criminal defendants raise uncertain defenses and provides courts with an interpretative guide for recently enacted justifications like stand-your-ground laws and affirmative defenses to anti-abortion laws.  This expanded role for lenity also creates new possibilities for environmental and animal activists aiming to exploit ambiguous justifications to advance their causes, thus laying the groundwork for potentially transformative legal change.  Further, the Article’s claims about the ambit of lenity have important implications for related scholarly debates.  For example, the Article argues for the first time that some public policy defenses may be justification-like in their function, and it proposes a staunchly textualist — or “empirical” — approach to drawing the distinction between justifications and excuses.  These novel arguments have implications for foundational questions regarding culpability and interpretative methodology in criminal cases.

Highligthing great new guest posts at the Sentencing Matters Substack (and welcoming more)

I have been (somewhat inconsistently) highlighting here the weekly posts at the Sentencing Matters Substack that some colleagues and I host to publish longer-form essays on an array of sentencing topics.  I am especially pleased that this month we have published two great new guest posts in that forum:

From Katie Kronick, "Why is it So Hard for Courts to Adjust to Advancements in Knowledge of Human Behavior?: A Death Penalty Case Study"

From Norman Reimer, "First Steps and Second Chances: A Review of "A Second Chance": a Federal Judge’s Perspective on Compassionate Release and a System in Need of Reform"

We are planning a final 2024 substack post new week that provides a brief review of some of the substack's coverage, and it also provides this open invitation for more outside contributions:

We genuinely appreciate you reading our essays and being part of this project.  Through our writing, we are trying to uncover an insight or two and share that thinking in a mildly interesting way.  We hope you will continue to join us as we grapple with the important issues of crime and punishment, remorse and forgiveness, policymaking and politics, law and judging, and freedom and justice in the year to come.  We’d love to hear from you now and then.  And we’d love to bring in new voices to this conversation, including yours, including those serving -- or who have served -- time in prison, victims of crime, prosecutors, defense lawyers, probation officers, judges, other academics, and just other everyday citizens.  We’ve tried to create an aesthetic on this Substack that is serious, at times just a little bit snarky, but always gracious.  If you’re at all inclined to contribute something, let us know. 

"The Impact of United States v. Erlinger on State Recidivist Sentencing Laws"

The title of this post is the title of this notable new essay authored by Chad Flanders just posted to SSRN.  Here is its abstract:

In Erlinger v. United States, the U.S. Supreme Court ruled that finding that an offender had committed two felonies "on separate occasions" under the Armed Career Criminal Act had to be made by a jury, not a judge.  In one respect, the decision is narrow and straightforward: it merely is an extension of the Court's Apprendi jurisprudence.  But in another respect, the decision is far-reaching.  As some state appeals courts have already realized, the decision makes unconstitutional state laws that give the judge -- rather than the jury -- the power to decide whether someone is a "persistent" or "habitual" offender based on whether a defendant's felonies occurred at "different times" or on "separate occasions."  This paper is a call for lawyers and scholars to pay attention to Erlinger.  It also tries to give some guidance to defendants litigating Erlinger violations, courts dealing with these defendants, and state legislatures who will have to fix their now-unconstitutional sentencing laws.

After seven years in office, NJ Gov finally finds his clemeny pen to grant 33 pardons and three commutations

I am disinclined to have this blog drone on with non-stop clemency coverage, but this is the season for grace and today marked the end of one Garden State mystery with New Jersey Governor Phil Murphy finally discovering his clemency power.  This Politico article provides some details:

New Jersey Gov. Phil Murphy on Monday issued 33 pardons and three sentence commutations in his first act of clemency, nearly seven years after he took office.  “My only regret is we did not get to this day sooner,” Murphy said at a Trenton press conference, promising this was just the “first round” of legal relief, with more to come over his final year in office....

Most of the pardons in New Jersey are for non-violent offenses, predominantly property crimes and drug offenses. Some date back to the early 1970s, with the most recent crime being a 2011 conviction for making a false report to law enforcement.

The three sentence commutations are all for women who were convicted of murder, with the most recent one from 2006.  “Over the course of their lives, each one of these women has suffered immense hardship. All of them are survivors in one form or another. But when they were originally sentenced for the crimes they committed years ago, they received sentences that were too long based on what we know today,” Murphy said....

Murphy ran for office as a progressive and instituted several major criminal justice initiatives, including expanding expungement and restoring the right to vote for those on probation and parole. That contrasted with his lack of clemency actions during his seven years in office. Murphy’s recent gubernatorial predecessors from both parties issued pardons or sentence commutations far earlier in their tenure, though most saved the bulk of them for their final year in office.

Murphy in June ordered the formation of a Clemency Advisory Board to consider pardon and commutation applications and make recommendations. The board gave expedited consideration to those convicted of non-violent crimes who later stayed out of the legal system. For commutations, they expedited applications for those given “excessive trial penalty” or if they were victims of domestic violence, sexual violence or sex trafficking.  The Murphy administration also said it made “more robust victim outreach than in prior administrations” ahead of granting clemency.

This official press release from Gov Murphy's office includes the full list of clemency recipients and other details, as well as some quotes from stakeholders (including "criminal justice advocate" Kim Kardashian).

Noting the shrinking of death row in Missouri and elsewhere

This new AP piece details some notable capital punishment data from the Show Me state and eleswhere.  This article's headline notes its themes: "Missouri's death row had nearly 100 inmates in the 1990s. Now, it has eight."  Here are excerpts (with links from the original):

Missouri 's status as one of the most active death penalty states is about to change for one simple reason: The state is running out of inmates to execute.

The lethal injection of Christopher Collings on Dec. 3 left just eight men on death row — a figurative term since condemned Missouri inmates are housed with other prisoners. By contrast, nearly 100 people were living with a death sentence three decades ago.

Three of the eight Missouri inmates will almost certainly live out their lives in prison after being declared mentally incompetent for execution.  Court appeals continue for the other five, and no new executions are scheduled.

Missouri isn’t alone. Across the nation, the number of people awaiting the ultimate punishment has declined sharply since the turn of the century....

The Legal Defense Fund’s Death Row USA report showed 2,180 people with pending death sentences this year, down from 3,682 in 2000. Missouri’s peak year was 1997, when 96 people were on death row.

After reaching a height of 98 U.S. executions in 1999, the annual number hasn’t topped 30 since 2014.  So far this year, 23 executions have been carried out — six in Alabama, five in Texas, four in Missouri, three in Oklahoma, two in South Carolina and one each in Georgia, Utah and Florida.  Two more are scheduled: Wednesday in Indiana and Thursday in Oklahoma.

Use of the death penalty has declined in part because many states have turned away from it.  Twenty-three states and the District of Columbia have abolished the punishment, and five others have moratoriums.

Even in active death penalty states, prosecutors in murder cases are far more inclined to seek life in prison without parole.  In the 1990s, the nation was typically seeing over 300 new death sentences each year. By contrast, 21 people were sentenced to death nationwide in 2023.

Lots of notable new items from the Prison Policy Initiative

I am behind on flagging notable new entries posted over at the Prison Policy Initiative in part because PPI has posted three new items in just the past week.  Here they are:

How journalists can push back on prison and jail “gag rules”

Broad policies prohibiting prison and jail staff from talking to reporters are common but likely unconstitutional. Here’s how reporters can push back against these policies.

The 2024 reporting on incarceration that newsrooms should emulate in 2025

We highlight some of the year’s best reporting on incarceration, and offer tips for journalists interested in pursuing similar stories in their states.

Why jails and prisons can’t recruit their way out of the understaffing crisis

Jails and prisons across the country have record-high vacancies, creating bad working conditions for corrections staff and nightmarish living conditions for incarcerated people. Why haven’t pay raises, benefits, and new facilities turned recruitment around, and what does that tell us about the state of mass incarceration?

Reviewing basic demographics of home-confinement recipients of Prez Biden's mass commutation

This new USA Today piece, headlined "Who was pardoned in Biden's clemency? Data breakdown of demographics, ages," reports on some general characteristics of the 1499 persons serving time on home confinement who received commutations from Prez Biden last week.  Here are some of the details:

An analysis of data collected by USA TODAY from the Bureau of Prisons showed the demographic split behind the numbers. Among the 1,499 whose sentences were commuted, 1,217 were identified as male and 282 as female.

About 61% of those were white, 37% Black, 1.8% Asian and 0.5% American Indian. Overall, 57% of people in prisons are white, 39% Black, 1.5% Asian and 2.9% American Indian....

The ages of those granted clemency ranged from 25 to 89, with a median age of 51. Many were nearing the end of their sentences; half had a year or less remaining before their projected release.

Reduction granted on two bases to remedy extreme stash-house sting sentence

A helpful colleague alerted me to a notable recent sentence reduction ruling/opinion handed down last week in US v. Evans, No. 93-00123-CR (SD Fla. Dec. 10, 2024) (available download below). The case inolves a defendant who was initially sentenced three decades ago to 57 years in federal prison in a so-called "stash house sting" case. (I have posted on the ugly dynamics of stash-house stings in any number of prior posts, and I recommend two episodes of the Drugs on the Docket podcast (here and here).)  

The 33-page ruling in the Evans case should be read in full, as it covers lots of notable factual and legal ground.  The ruling defies easy summarization, and I will here just reprint the start of the opinion and some later notable passages:

Sherlon Evans has served over thirty-one years of a nearly fifty-year sentence, totaling 595 months.  Mr. Evans has now moved for a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A), claiming that “extraordinary and compelling” reasons warrant review....   

Mr. Evans cites two “extraordinary and compelling” bases recognized by the recent policy statement issued by the U.S. Sentencing Commission (the “Commission”) as potentially justifying a reduction in sentence.  First, Mr. Evans contends that he is serving an “unusually long sentence” that is subject to a substantive change in law, which would produce a “gross disparity” between the sentence he is currently serving and the sentence that would likely be imposed today. USSG § 1B1.13(b)(6).  Second, Mr. Evans points to the “unique aspects of [his] case” under the “catch-all” provision of § 1B1.13(b)(5), which permits a reviewing court to consider “any other circumstance[s]” that are “similar in gravity” to the other extraordinary and compelling reasons recognized by the Commission.

The Government opposes Mr. Evans’s Motion in its entirety.  It first challenges the validity of the Commission’s new policy, claiming the Commission had no authority to issue it, that the policy conflicts with § 3582(c)(1)(A), and that the policy raises separation of powers concerns.  The Government also argues that even if the new policy is binding, Mr. Evans is not entitled to a reduction under the supposedly compelling reasons he cites.  I reject the Government’s position on both fronts ... and reduce his sentence to time served....

[A]t least forty-three defendants who were convicted through reverse stash house stings have since had their sentences reduced to an average of just three years following protracted litigation against the ATF for alleged racial discrimination in its implementation of reverse stings.  [And] the circumstances of Mr. Evans’s sentence are even more striking in light of the fact that he played a relatively minor role in the conspiracy orchestrated by the ATF and Henry. That is, Mr. Evans was arrested because he was present when Henry planned and executed the “robbery.” I use the term “present,” as “the case against Mr. Evans was one that rose and fell on presence, and nothing more than presence. Presence [at] one meeting in which he may or may not have had very little to say, and presence along with everybody else at the scene of the offense at the time the arrests were made.”  Mr. Evans was not the ringleader or mastermind, did not supply weapons or recruit the other co-defendants into the scheme.  He was not even present when the conspiracy was hatched.  He was a tagalong, a hired hand to assist in the criminal deeds of others. Yet, Mr. Evans was sentenced with nearly the same degree of severity as those who were arguably more culpable in the commission of the crime....

[Other cases in which sentences were reduced] echo my own dismay and discomfort with the concept of a reverse stash house sting.  And when such a process results in a sentence of nearly half a century, that is an intolerable outcome.  To be sure, § 1B1.13(b)(5) may not be a vehicle to question the wisdom of the Government’s policing and prosecutorial practices.  It is a vehicle, however, to question the wisdom of continuing to incarcerate this particular man for another decade or more.  Sherlon Evans has served thirty-one years in federal prison for his presence in a conspiracy that he did not plan or lead, attempting to rob drugs that never existed, and carrying a “machine gun” that wasn’t a machine gun, which he never bought, held, brandished, or used. If his original sentence is left unaltered, Mr. Evans will be well into his seventies when he leaves prison — without having been convicted of actually selling one gram of cocaine or hurting any other person.

Download US v. Evans sentence reduction opinion

Notable new cert petition seeks to undo atextual "petty offenses" exception to constitutional jury trial right

In prior posts (some linked below), and also in this recent post over at the Sentencing Matters Substack, I have mused in various ways about what the Supreme Court's originalist turn could and should mean for various sentencing doctrines and broader criminal justice constitutional jurisprudence.  And so I was intrgued to see this new press release from the New Civil Liberties Alliance highlighing a new cert petition urging the Supreme Court to overturn its (unoriginalist) limit of just trial rights.  Here excerpts from the press release:  

[On December 13, 2024], the New Civil Liberties Alliance and the Stanford Law School Supreme Court Litigation Clinic petitioned the Supreme Court to hear David Lesh v. United States.  On behalf of Mr. Lesh, NCLA seeks to overturn the Court’s unjust precedent that directly contradicts the explicit language of the Constitution by denying individuals charged with “petty offenses” their right to a jury trial.  This precedent led the U.S. Court of Appeals for the Tenth Circuit to rule that NCLA client David Lesh was not deprived of his constitutional jury-trial right when prosecuted and convicted for violating U.S. Forest Service (USFS) regulations. The Supreme Court should take this opportunity to eliminate the “petty-offense exception.”...

The Supreme Court’s “petty-offense exception” to the Constitution’s jury-trial guarantee required the Tenth Circuit to uphold the magistrate’s determination that Mr. Lesh was not entitled to a jury trial.  However, in a powerful concurrence, Tenth Circuit Judge Tymkovich, joined by Judge Rossman, urged the Supreme Court to revisit the doctrine.  Judge Tymkovich explained that this exception appears to be inconsistent with the text of both Article III of the Constitution and the Sixth Amendment, and he noted that the exception has been called into question by many constitutional scholars.  Notably, the district court judge, who reviewed the magistrate’s determination, had made a similar observation in his decision upholding the convictions.

The Sixth Amendment’s jury-trial guarantee “[i]n all criminal prosecutions” is currently interpreted by the Supreme Court to exclude petty offenses — those generally carrying a penalty of six months’ imprisonment or less.  Article III independently protects this right as well, requiring trials for all crimes.  The exception applies even if, as in Mr. Lesh’s case, the defendant could conceivably serve more than six months if multiple counts of conviction are served consecutively.  Regardless, the exception contravenes the Constitution’s plain language and history and contradicts the Supreme Court’s methods for interpreting constitutional text.  The Justices have recently made clear that Americans cannot be stripped of their right to a jury trial for reasons of efficiency or expedience.

Lots of informatin about this case are assembled on this NCLA page, and here are a few excerpts from the cert petition (which is worth reading in full):

Today, the petty-offense exception denies criminal defendants the right to jury trial when they are charged with crimes punishable by a maximum of six months’ imprisonment and that are not otherwise judicially classified as “serious”— even when charged with multiple counts punishable by six months each....

This departure from the plain and unambiguous text of the Constitution violates a core promise of the Framers: that, in a criminal case, a jury of one’s peers would always stand between the accused and the power of the state to deprive him of liberty or property. It also makes a hash of the Constitution’s broader structure, rendering other carefully calibrated language regulating criminal procedure either meaningless or nonsensical. And the petty-offense exception flouts the historical common-law rule the Constitution was meant to render inviolate....

[T]he petty-offense exception flouts the text, structure, and history of the Constitution. But that is not all; it is also flatly inconsistent with this Court’s modern methodology for construing the Sixth Amendment....

Yet instead of adhering to the original public meaning of the right to jury trial, the Court has grounded its petty-offense exception in a balancing of policy considerations. The Court has opined that “the possible consequences to defendants from convictions for petty offenses have been thought insufficient to outweigh the benefits to efficient law enforcement and simplified judicial administration resulting from the availability of speedy and inexpensive nonjury adjudications.” Duncan, 391 U.S. at 160. And when creating the six-month cutoff for petty offenses, this Court “weigh[ed] the advantages to the defendant against the administrative inconvenience to the State inherent in a jury trial and magically conclud[ed] that the scale tips at six months’ imprisonment.”  Baldwin v. New York, 399 U.S. 66, 75 (1970) (Black, J., concurring in the judgment).

A few of many recent posts on originalism topics:

• Initial musings on the Supreme Court’s originalist turn and sentencing issues
• Exploring originalism and criminal justice at this SCOTUS moment 
• Modest musings on Eighth Amendment originalism two decades after Ewing v California 
• Notable (and failed) argument that “originalist" jury trial right must allow juries to know about sentence and nullification