Sentencing Law and Policy

Noting 2024 death sentencing trends in a number of notable states

As 2024 winds down, I have seen a few notable press pieces highlighting death sentencing (and execution) trends in a few notable states.  Because the long-term fate and future of capital punishment in the US largely turns on death sentencing trends, I will highlight that part of these stories in the excerpts below:

From Alabama, "Steve Marshall proud Alabama leads US in executions, despite backlash"

The [Death Penalty Information Center] reported of the 26 people newly sentenced to death in 2024, four were inmates in Alabama.  Over 40 percent of 2024’s new death sentences occurred in Alabama or Florida, the only states in which non-unanimous juries may impose capital punishment.  Nine of these eleven death sentences were non-unanimous decisions.

From Florida: "Executions in Florida dropped in 2024, but number of new death sentences lead nation"

But even as Florida carried out only one execution this year, the seven death sentences handed out by juries topped all states, edging out Texas’ second-place total of six.  About one-third of the 26 new death sentences imposed nationwide came from non-unanimous juries, including six in Florida. Last year, DeSantis enacted legislation which reduced the number of votes needed to recommend a death sentence from unanimous to eight-out-of-12 jurors.

From Oklahoma, "As Oklahoma Executions Continue, New Death Sentences Grow Rare"

Oklahoma’s death row is dwindling with each execution.  No state court has imposed a death sentence since May 13, 2022, when a Tulsa County judge followed a jury’s recommendation and sentenced David Ware to death for the murder of Tulsa Police Sgt. Craig Johnson....  The nearly 1,000-day stretch without a new death sentence is Oklahoma’s longest since at least 1974, according to data compiled by the Death Penalty Information Center, a Washington, D.C.-based nonprofit that does not take a position on the death penalty but describes itself as critical of how it’s administered. 

From Texas, "Texas ranked second in executions carried out in 2024, behind Alabama"

The six new death sentences handed down by Texas juries this year were double the number handed down last year. Still, the long-term trend is of decline. "Death sentences peaked in this state in 1999, when juries sent 48 people to death row," [Kristin Houlé] Cuellar said. "For the last decade, death sentences have remained in the single digits every year."

Highlighting ACLU's class-action lawsuit over the First Step Act's earned-time credits

I have blogged repeatedly about various challenges that the Bureau of Prisons has faced in the implementation of the First Step Act's earned-time credits. In this new Forbes piece, headlined "ACLU Files Class Action Against Bureau Of Prisons Over First Step Act," Walter Palvo reports on a new ACLU lawsuit filed again BOP. I recommend the piece in full, and here are excerpts (with links from the original):

In November 2022, Senators Dick Durbin (D-IL) and Chuck Grassley (R-IA) wrote to the Federal Bureau of Prisons (BOP) Director Colette Peters about their concerns concerning the implementation of the First Step Act (FSA)....  Over two years since release of that statement, the BOP continues to struggle in implementing FSA, which allows thousands of mostly minimum security prisoners to both reduce their sentence and spend more of their sentence in prerelease custody in the community.  Last week, the American Civil Liberty Unions (ACLU) filed a class action lawsuit on behalf of thousands of prisoners who believe they should be in community confinement rather than prison.  According to the lawsuit the BOP has unlawfully treated credits earned under FSA as discretionary rather than a mandate clearly stated in the law....

The BOP has largely succeeded in giving FSA credits associated with reducing the sentence, which can be up to one year.  However, for those with longer sentences, over 4 years, the FSA allows prisoners to continue to earn credits toward prerelease custody (halfway house and home confinement).  This part of the FSA has caused considerable problems for the BOP as it has interpreted this part of the law as being discretionary, something the ACLU has focused on in its lawsuit.  It is anticipated that thousands of federal prisoners will sign on to this action.

The BOP has already been sued by individual prisoners and the courts have awarded the credits in some of those cases that were disputed.  However, the BOP did not use those losses as an action to update its program statements nor did they appeal the ruling.  Instead, the BOP has been less than transparent in how it determines when a person can apply the credits for prerelease custody.  Federal prisoners have a right to resolve their differences with the BOP through an administrative remedy process.  However, that process can take months and prisoners simply serve out their term without receiving the maximum amount of time in the community....

Over the past few months, I have received dozens of letters from FCI Forrest City satellite prison camp stating that they are not receiving the credits due to a lack of programming and a FSA miscalculation by the BOP.  As one prisoner wrote, “My formal attempts to remedy this issue with the prison’s administrators and staff have [been] met with negative results due to their refusal to take any remedial action.”  Based on reviews of several FSA calculations, not only is the BOP not releasing prisoners as soon as it could, many prisoners believe they are being retaliated against for bringing attention to the problem.  The ACLU press release on its lawsuit states that “the BOP’s failure to implement the First Step Act according to its plain language violates the rights of thousands of people who should be returning to their communities and rebuilding their lives but instead remain incarcerated.”

The BOP may have reasons for not moving prisoners into the community.  The BOP has stated that it does not have the capacity in halfway houses to place prisoners and has taken liberty to move prisoners only when it has the ability to do so.  The FSA was known as being a law that would lead to more prisoners in community custody yet the bed space capacity at halfway houses in 2018, the year the law was signed, remains roughly the same today years later.

"The effect of incarceration on political beliefs for vulnerable populations"

The title of this post is the title of this new paper authored by Hope Martinez and first published earlier this month by Social Science Quarterly. Here is its abstract:

Objective

This article examines whether incarceration influences a change in political beliefs for those incarcerated and the extent to which it affects more vulnerable groups, including women and people of color.

Method

I use a series of logit models to analyze responses to the Marshall Project's 2020 prison survey.

Results

My analysis reveals a significant change in political beliefs since being incarcerated. There is an increased effect of changing political beliefs for women and people of color incarcerated. The effect reveals that people of color are becoming, either for the first time or further aligned, with the Republican Party since being incarcerated.

Conclusion

The experience of violence and abuse while incarcerated extends the tools of white supremacy in the prison system by influencing feelings of shame, hopelessness, and cultural inferiority, further aligning vulnerable groups to conservatism and whiteness. My Incapacitation theory begins to explain the change in political beliefs due to the carceral system's use of incapacitation and its long-term effect on political behavior of incarcerated groups.

Making the case for a new push for federal forfeiture reforms

The Washington Post has this new editorial advocating for federal legislative forfeiture reform headlined "The DEA shows why officers cannot police themselves when seizing assets: A DOJ inspector general report underscores the need for reforming civil forfeiture practices."  I recommend the full piece, and here is how it concludes (with links from the original):

On both the state and federal levels, forfeiture provides a perverse incentive for officers to conduct searches without compelling evidence of a crime — and to pressure people to give up property, because police departments and other agencies get to keep a cut of the seized property. As the Institute for Justice has documented, state and federal law enforcement agencies seize billions of dollars in assets every year, most of which they keep to fund their own operations. Among those forfeitures are countless stories of innocent people who lost their hard-earned money and spent years fighting to win it back — often unsuccessfully.

Unsurprisingly, the practice has earned bipartisan outrage. Thirty-seven states and D.C. have already passed legislation to reform their own forfeiture laws, and last year the House Judiciary Committee unanimously voted to advance a bill that would direct revenue from forfeitures to the federal government’s general fund rather than to law enforcement agencies. That legislation would also eliminate “equitable sharing,” which allows state and local police to sidestep state limits on civil forfeitures by working with federal agencies, which then share a portion of any seized assets. Frustratingly, that bill never made it to a floor vote.

The purpose of such reforms is not to eradicate the practice; it is to ensure that officers see it as a tool to get the bad guys, not as a way to pad their budgets. By taking away the profit motive, agencies such as the DEA might finally exercise their forfeiture powers with due caution.

Rounding up some reactions to Prez Biden's decision to commute 37 federal death sentences

Prez Biden's decision to commute the sentences of 37 of the 40 convicted murderers on federal death row to life without of parole is remarkable for many reasons.  Thus, it is not surprising that many people are remarking about the decision.  Here is an abridged round up of just some of the reactions catching my this morning:

From the AP, "Relief, defiance, anger: Families and advocates react to Biden’s death row commutations"

From The Atlantic, "Joe Biden’s Moral Wisdom"

From Fox News, "Family of murdered SC woman rages at Biden for commuting killer's death sentence: 'She was shown no mercy'"

From The Hill, "Biden did the right thing granting clemency to 37 federal death row inmates"

From MS-NBC, "Joe Biden's justifiable mercy"

From the New York Daily News, "Trump slams Biden for commuting death sentences of 37 federal prisoners"

From the Sacramento Bee, "Joe Biden’s inconsistent commutations: Hate is a crime, but apparently not for all"

From USA Today, "'A mistake': Biden faces backlash upon commuting sentences of death row inmates"

From 10TV (Columbus, Ohio), "'Absolutely devastating': Parents react to Biden's commutation of death sentence for man who killed their son"

Prior recent related posts:

• A few legal musings about the prospect of Prez Biden commuting all federal capital sentences 
• Prez Biden commutes to LWOP the federal death sentences of 37 murderers

En banc Third Circuit again finds federal felon-in-possesion ban unconstitutional as applied to Byran Range

Eighteen month ago, as reported in this post, the full en banc Third Circuit found unconstitutional, on the basis of the landmark Second Amendment Bruen opinion, the application of federal felon-in-possession law to a person with a false statement conviction from decades prior.  The Supreme Court called upon the Third Circuit to review its work following the Justices' subsequent 2024 Second Amendent ruling in Rahimi.  Today, the en banc Third Circuit reached the same Second Amendment outcome in Range v. Attorney General, No. 21-2835 (3d Cir. 2023) (available here).

The new majority opinion in Range runs only 20 pages, and it is followed by nearly 150 pages of concurrences and dissents. Here's the full run down for those interested in the headcount:

HARDIMAN, Circuit Judge, filed the Opinion of the Court with whom CHAGARES, Chief Judge, and JORDAN, BIBAS, PORTER, MATEY, PHIPPS, FREEMAN, MONTGOMERY-REEVES, and CHUNG, Circuit Judges, join.

MATEY, Circuit Judge, filed a concurring opinion.  PHIPPS, Circuit Judge, filed a concurring opinion.  KRAUSE, Circuit Judge, filed an opinion concurring in the judgment, with whom ROTH, Circuit Judge, joins in part.  ROTH, Circuit Judge, filed an opinion concurring in the judgment, with whom KRAUSE and CHUNG, Circuit Judges, join in part. AMBRO, Circuit Judge, concurs in the judgment only. SHWARTZ, Circuit Judge, filed a dissenting opinion with whom RESTREPO, Circuit Judge, joins.

For those who celebrate Festivus traditions, it would appear the Third Circuit has served up some "feats of strength" as well as some "airing of grievances."  As for the basics, here is how Judge Hardiman's majority opinion starts and ends:

Bryan Range appeals the District Court’s summary judgment rejecting his claim that the federal “felon-inpossession” law — 18 U.S.C. § 922(g)(1) — violates his Second Amendment right to keep and bear arms.  We agree with Range that, despite his false statement conviction, he remains among “the people” protected by the Second Amendment. And because the Government did not carry its burden of showing that the principles underlying our Nation’s history and tradition of firearm regulation support disarming Range, we will reverse and remand....

Our decision today is a narrow one.  Bryan Range challenged the constitutionality of 18 U.S.C. § 922(g)(1) only as applied to him given his violation of 62 Pa. Stat. Ann. § 481(a).  Range remains one of “the people” protected by the Second Amendment, and his eligibility to lawfully purchase a rifle and a shotgun is protected by his right to keep and bear arms.  More than two decades after he was convicted of foodstamp fraud and completed his sentence, he sought protection from prosecution under § 922(g)(1) for any future possession of a firearm.  The record contains no evidence that Range poses a physical danger to others.  Because the Government has not shown that our Republic has a longstanding history and tradition of depriving people like Range of their firearms, § 922(g)(1) cannot constitutionally strip him of his Second Amendment rights.  We will reverse the judgment of the District Court and remand so the Court can enter a declaratory judgment for Range, enjoin enforcement of § 922(g)(1) against him, and conduct any further proceedings consistent with this opinion.

As I have mentioned in the past, Bryan Range's case seems particularly sympathetic, as he was convicted nearly three decades ago of only a relatively minor crime.  Because this Range ruling creates a clear circuit split on the constitutionality of 18 U.S.C. § 922(g)(1) in some settings, I would expect to see an appeal to the Supreme Court by the US Department of Justice. But maybe the new incoming Justice Department officials might not want to test the application and reach of the Second Amendment in this particular "narrow" case.

New policy brief on EQUAL Act assembles notable data on crack and powder cocaine sentencing

This press release, headlined "Princeton Policy Advocacy Clinic Students Release Analysis of Federal Crack-Powder Cocaine Sentencing Disparities, Draw Bipartisan Praise," provides a partial summary of this great new policy brief.  Here is part of the press release:

[Detailed crack offense sentencing] data come from a nonpartisan policy brief written by undergraduate students as part of the Princeton School of Public and International Affairs’ Policy Advocacy Clinic, analyzing the potential impacts of passage of the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act.  First introduced in 2021 and then re-introduced in 2023, both times with strong bipartisan support, the EQUAL Act would eliminate the 18-to-1 federal sentencing disparity between crack cocaine and powder cocaine offenses and authorize the resentencing of people previously convicted of crack offenses.

In their policy brief, Emilie Chau ’25, Nate Howard ’25, and Jennifer Melo ’25 present a history of the sentencing disparity, aggregate data on federal convictions and incarceration for cocaine offenses, and analyze demographic information of those convicted.  They also share a projection by the U.S. Sentencing Commission that passage of the EQUAL Act would reduce the average sentence of newly convicted people by 31 months and cut the average sentence of nearly all of the 7,800 people eligible by more than 6 years.

I recommend the policy brief in full, as it presents lots of notable data on federal sentencing from Fiscal Year 2015 to 2023 quite effectively.  It also concludes with this notable point about state sentencing for cocaine offenses:

Forty-one states have no sentencing disparity between crack and powder cocaine, and of the remaining nine, seven of them have a disparity that is lower than the 18-to-1 ratio at the federal level.  This means that only two states, Missouri and New Hampshire, have sentencing disparities that are higher than the federal level.  It is also striking that political partisanship does not appear to be determinative of cocaine sentencing policy.  The vast majority of red states, blue states and purple states have no sentencing disparity.

Prez Biden commutes to LWOP the federal death sentences of 37 murderers

As reported in this AP piece, "President Joe Biden announced on Monday that he is commuting the sentences of 37 of the 40 people on federal death row, converting their punishments to life imprisonment just weeks before President-elect Donald Trump, an outspoken proponent of expanding capital punishment, takes office." Here is more:

The move spares the lives of people convicted in killings, including the slayings of police and military officers, people on federal land and those involved in deadly bank robberies or drug deals, as well as the killings of guards or prisoners in federal facilities.

It means just three federal inmates are still facing execution. They are Dylann Roof, who carried out the 2015 racist slayings of nine Black members of Mother Emanuel AME Church in Charleston, South Carolina; 2013 Boston Marathon bomber Dzhokhar Tsarnaev; and Robert Bowers, who fatally shot 11 congregants at Pittsburgh’s Tree of life Synagogue in 2018, the deadliest antisemitic attack in U.S history.

The White House has these releases detailing this notable clemency action: "FACT SHEET: President Biden Commutes the Sentences of 37 Individuals on Death Row" and "Statement from President Joe Biden on Federal Death Row Commutations."  The "Fact Sheet" in part discusses Prez Biden's clemency record and concludes with this notable sentence: "In the coming weeks, the President will take additional steps to provide meaningful second chances and continue to review additional pardons and commutations."  On the capital clemencies, the statement from Prez Biden is relatively short, and here it is in full:

I’ve dedicated my career to reducing violent crime and ensuring a fair and effective justice system.

Today, I am commuting the sentences of 37 of the 40 individuals on federal death row to life sentences without the possibility of parole. These commutations are consistent with the moratorium my Administration has imposed on federal executions, in cases other than terrorism and hate-motivated mass murder.

Make no mistake: I condemn these murderers, grieve for the victims of their despicable acts, and ache for all the families who have suffered unimaginable and irreparable loss.

But guided by my conscience and my experience as a public defender, chairman of the Senate Judiciary Committee, Vice President, and now President, I am more convinced than ever that we must stop the use of the death penalty at the federal level. In good conscience, I cannot stand back and let a new administration resume executions that I halted.

I mused a bit in this post over the weekend about a few legal issues that could follow these commutations, and one involved whether Prez Biden might include pending capital cases in any blanket clemency effort.  It appears he did not here (though he still has four weeks with the clemency pen).

Prior recent related post:

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

An eclectic round up of recent criminal justice pieces

While clemency stories and commentaries of all sorts have been making non-stop headlines, more than a few other news and opinion pieces have caught my eye as noteworthy in recent days.  So, to note a number of pieces, here is a round-up:

From Business Insider, "How the courts have sanctioned extreme violence by prison guards"

From the Florida Phoenix, "After a change in the death sentencing law, Florida imposed seven new death sentences this year, most in the nation"

From Fox News, "Luigi Mangione's terror case: Was the suspected UnitedHealthcare CEO assassin 'overcharged'?"

From Governing, "What a Second Trump Term Means for Policing and Prisons" 

From Law360, "Justice Reformers Wary Of Trump's Return, Yet Hope Persists"

From Law360, "Key Rulings On Sentencing Guidelines After Loper Bright"

From the National Review, "Don’t Punish People for Crimes They Haven’t Committed Yet"

From The New Republic, "The Democrats Have a Crime Problem. Blame the Media."

From the New York Times, "U.S. Prisons Flout Law by Keeping Inmates Past Release Date, A.C.L.U. Says"

From Reason, "Trump's January 6 Pardons Could Address Some Real Injustices"

From the Sentencing Matters Substack, "On Being a Great Prosecutor"

From the Wall Street Journal, "A Bipartisan Consensus on Criminal-Justice Reform: The First Step Act may be a precursor to Trump’s second term."

From the Washington Post, "Biden pardoned son while leaving hundreds seeking clemency in limbo"