Sentencing Law and Policy

"Prison Banking"

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

People in prison have no choice but to use the banking systems that prisons operate.  Rather than use any outside bank account or have family or friends meet their daily needs directly, people in prison must rely on what are often called “inmate trust accounts” to pay for goods and services within the prisons.  These accounts have long been vulnerable to asset seizure by the prisons that run them. The money in these accounts comes from prison wages and deposits by friends and family members of incarcerated people, and prisons take this money in a variety of ways: Prisons impose fees for a wide variety of services (like making a phone call, receiving mail, participating in educational programming or treatment, or even using the banking system itself), sell commissary items at highly marked up prices, impose fines as punishment for disciplinary infractions, divert the money at the behest of courts and criminal system agencies to pay other fines and fees, and collect the interest from the pooled accounts. Sometimes prisons seize large portions of a person’s inmate trust account balance under the rationale that the individual owes the prison system for their daily room and board. Sometimes, the money simply disappears as a result of embezzlement or error.

In 2021, the problems inherent in prison management of individuals’ money became apparent when COVID stimulus checks intended for incarcerated people began disappearing from their accounts.  Prisons and jails offered a variety of rationales, and some individuals raised legal challenges, but few questioned the basic authority of prisons to disburse money to themselves and other government entities, or the legitimacy of the prison banking system overall.

Prison systems have a significant conflict of interest in managing these banking systems, and the accounts are subjected to little transparency and oversight.  Statutory and administrative regulation of these accounts is minimal, compared to the tightly controlled regulation of money management in the free world.  Given the direct access that prisons have to these accounts, and the ease with which they can seize funds, prison bank accounts are a site of substantial wealth extraction, often with the blessing and penological deference of the courts.

This article examines the history and legal status of inmate trust accounts and the vulnerability of these funds.  The article places prison banking within the broader landscape of racialized wealth extraction through the criminal system and challenges the assumption that prisons and jails should be permitted to operate a low-transparency banking system over which they have exclusive control, are subjected to little regulation, and act with a high degree of conflict of interest.

Thourough review of the current state and notable leader of the Justice Department's Office of the Pardon Attorney

Bloomberg Law has this effective new article on DOJ's Pardon Attorney and the work of her office.   I recommend the lengthy piece in full, and here are just a few snippets:

When Liz Oyer, the first known former public defender to lead the Justice Department’s pardon office, arrived in April 2022, she moved in a collection of 22 framed photographs of women serving life sentences. Oyer then commissioned a formerly incarcerated sketch artist to display around 350 copies of his black-and-white profile portraits of fellow inmates he’d originally drawn in the prison yard....

Converting her wing of a drab federal complex into a museum of compassion is one of multiple ways Oyer, 45, has tried maneuvering within strict boundaries to transform the functions and stature of a unit that’s felt out of place in a department led primarily by prosecutors. She reports up to a deputy attorney general’s office filled with career prosecutors who can reject her suggestions to grant clemency before they reach the White House. “I wasn’t sure as somebody who was coming from a public defense background and not having worked in DOJ previously how it would be for me in this building,” said Oyer, who was also previously a partner at global law firm Mayer Brown. “And it’s really turned out to be a wonderful opportunity that has exceeded my expectations.”

Although Oyer has told allies during an active public speaking campaign that she’s working to elevate her office’s influence in broader DOJ policy discussions, some advocates see President Joe Biden’s limited embrace of clemency thus far (13 pardons, 124 commutations) as a telling sign. “The metaphor is pretty strong that we’re talking about people who are literally confined, and there’s a way in which Liz is confined by the structure of this process,” said Mark Osler, a leading clemency scholar and law professor at the University of St. Thomas.

The outcomes of the petitions the office endorses take on heightened stakes in the president’s final guaranteed year in office. If Biden loses re-election in November, he’d have a chance to follow the model of past presidents in signing most of their clemency grants on their way out. But a Trump victory would portend a setback to Oyer’s efforts. In Trump’s prior term, his aides set up an informal system of bypassing the DOJ by welcoming those with access to go directly to the White House.

Trump has also campaigned on promises to pardon the Jan. 6 Capitol rioters, and he has said that he has the “absolute right” to pardon himself, leading to speculation that he would do so if he’s convicted in one of the two federal indictments he’s now facing. Asked how her office might fare in a potential second Trump administration, Oyer said, “This is not a political office. I’m not a political appointee.” She added that “the office will continue to function at a high level regardless of what happens outside” it.

Presidential election aside, Oyer has won praise from even the office’s past critics for her efforts to increase transparency, such creating easier-to-read application forms and holding a speaking tour at federal facilities to instruct inmates on how to file.

“For many years I think the office of the pardon attorney was seen as a place where commutation petitions went to disappear,” said Mary Price, general counsel of the organization Families Against Mandatory Minimums, which has advocated for a broadly revamped pardon office. “The opaque nature of the office has always disturbed advocates and obviously people who are seeking a commutation or a pardon.” Oyer’s transparency in the role has been “terrific,” Price said.

Her efforts can only go so far, however. “At the end of the day, it’s not their decision; it’s not Liz Oyer’s decision,” Price said. “It’s President Biden’s decision, and it remains to be seen how much impact the office will have.”

DC Circuit panel rules that Jan 6 rioter should not be subject to key guideline enhancement for “substantial interference with the administration of justice”

The DC Circuit today handed down a notable panel opinion in US v. Brock, No. 23-3045 (DC Cir. Mar. 1, 2024) (available here), which afirms a key conviction and reverses a key guideline sentencing determination. Here is how the opinion starts:

Larry Brock participated in the violent January 6th riot at the United States Capitol that forced the evacuation of members of Congress and their staff and prevented Congress’s certification of the 2020 presidential election until the next day. After a bench trial, the court convicted Brock of six crimes, including corruptly obstructing Congress’s certification of the electoral count under 18 U.S.C. § 1512(c)(2). At sentencing, the district court applied a threelevel sentencing enhancement to Brock’s Section 1512(c)(2) conviction on the ground that Brock’s conduct resulted in “substantial interference with the administration of justice[.]” U.S.S.G. § 2J1.2(b)(2).

Brock challenges both the district court’s interpretation of Section 1512(c)(2)’s elements and the sufficiency of the evidence to support that conviction.  He also challenges the district court’s application of the three-level sentencing enhancement for interfering with the “administration of justice.” Because the law and the record in this case foreclose Brock’s legal and sufficiency challenges, we affirm Brock’s Section 1512(c)(2) conviction. As for Brock’s sentence, we hold that the “administration of justice” enhancement does not apply to interference with the legislative process of certifying electoral votes. For that reason, we vacate Brock’s sentence for his Section 1512(c)(2) conviction and remand to the district court for resentencing.

The sentencing discussion comprises nearly the last 20 pages of the 37 page opinion in Brock. Here are snippets of the discussion and analysis:

Brock argues that the district court improperly applied a three-level enhancement under the Sentencing Guidelines to his Section 1512(c)(2) conviction for “substantial interference with the administration of justice.” U.S.S.G. § 2J1.2(b)(2); see Brock Opening Br. 18–21. More specifically, Brock argues that “substantial interference with the administration of justice” as used in Section 2J1.2(b)(2) is limited to “judicial type proceedings” and does not encompass the legislative electoral certification process he was convicted of obstructing. Brock Opening Br. 19; see Brock Opening Br. 18–19. The government responds that “‘administration of justice’ * * * refers to the proper administration of law by all three branches of government.” ...

With great respect to our district court colleagues’ thoughtfully reasoned efforts to apply this Guideline, we hold that, for purposes of Sentencing Guideline 2J1.2, the phrase “administration of justice” does not encompass Congress’s role in the electoral certification process. Instead, Section 2J1.2’s text, context, and commentary show that “administration of justice” refers to judicial, quasi-judicial, and adjunct investigative proceedings, but does not extend to the unique congressional function of certifying electoral college votes....

[T]he government objects that “[t]here is no sound basis for assigning a significantly higher offense level to someone who violently interferes with a court proceeding than someone who violently interferes with a congressional proceeding.” Gov’t Br. 46–47. Maybe. But that is a policy argument the government can present to the Commission. It is textually indisputable that the Guidelines confine the Section 2J1.2(b)(2) enhancement to those offenses that interfere with the “administration of justice,” not the administration of everything Congress does, or the administration of government, or the administration of all laws broadly. We must apply the Guideline as written, and Brock’s interference with one stage of the electoral college vote-counting process — while no doubt endangering our democratic processes and temporarily derailing Congress’s constitutional work — did not interfere with the “administration of justice.”

The headline of this Washington Post piece about the ruling, "Appeals court ruling means over 100 Jan. 6 rioters may be resentenced," suggests that lots and lots of already sentenced Jan 6 defendants will benefit from this ruling.  But I would guess that most, if not all, of the defedants who entered pleas and received this enhancement may be precluded by an appeal waiver and collateral appeal waivers from seeking correction of an erroneous sentence.  (IN a quick google search, I found such a plea agreement in a case that seemed to include application of the enhancement.)  DOJ often has a way of insulating its errors, though I hope defendants who are serving extra time based on a legal error make all effort to find some way to have the sentencing error corrected.  Perhaps DOJ will be willing to forgo application of the waiver in these cases so that people who should be able to get resentenced have a means to get to court.

Louisiana legislature enacts slate of tough-on-crime bills urged by its new Gov

A helpful reader made sure I saw this local news accounting of the significant crime legislation that formally passed today.  Here are just some of the details:

The special crime-focused legislative session wrapped up early on Thursday after lawmakers passed all of the controversial tough-on-crime bills touted by Gov. Jeff Landry.

On the final day of the session, legislators approved HB6, which expands the methods of how Louisiana can execute death row inmates.  The bill added nitrogen hypoxia and the electric chair into the toolkit.  This is part of the effort of the new governor to resume executions. Louisiana has only put one person to death over the last two decades.  There are currently 57 people on the state’s death row....

Also given final passage are two bills that would require inmates to serve more of their sentences in prison. HB9 does away with parole for future offenders starting in August of this year.  HB10 also significantly reduces the amount of time that can be shaved off based on good behavior to just 15%.  HB11 extends how long someone has to be on parole, for those who still qualify, and adds further consequences for those who violate their parole.

Lawmakers also passed SB3, which will designate adults as 17 years or older in the criminal justice system.  This means 17-year-olds will be tried as adults when they commit a crime and will be housed in adult facilities....

In response to recent violent carjacking stories coming out of New Orleans, lawmakers passed HB7 to increase the penalty for carjacking to nearly double what it is currently.

There were many questions about how much all this legislation will cost.  The Legislative Fiscal Office estimated together it will cost millions of dollars a year.  However, legislators questioned their calculation methods and claimed it wouldn’t cost that much.

The bills passed now head to the governor’s next for signature and he is anticipated to sign them over the next week.

"Capital Trifurcation"

The title of this post is the title of this new article now available via SSRN authored by William W. Berry III.  Here is its abstract:

The death penalty is disappearing in the United States. Annual executions remain under twenty-five per year, and new capital sentences have not exceeded thirty in over a decade.

Over the past two decades, however, a new kind of death sentence has emerged—life-without-parole (LWOP).  In practice, LWOP and death sentences are functionally equivalent, as most death row inmates die of natural causes in prison, not execution.  For both economic and moral reasons, most states are not actively executing prisoners.

Therefore, capital sentencing proceedings that focus on life versus death neglect the more consequential question — life without parole versus life with parole.  That decision shapes whether one has a chance at life after prison or will die in prison, two very different outcomes.

But the capital sentencing process obscures this reality, at best, and at worst, does not even give the jury a choice.  It makes little sense to focus the jury on a hypothetical question of life and death while ignoring the real dilemma.  To that end, this Article argues for a rethinking of the sentencing procedure in capital cases.

First, the Article explains why mandatory LWOP sentences violate the Eighth Amendment, and why even if they don’t, states should abolish them.  Then, the Article advances its central proposal—the trifurcation of capital trials.  In short, states should split the sentencing phase of capital cases into two parts. In the first, the jury decides between life and death. If the jury chooses life, a second sentencing phase ensues, with the jury choosing between life with parole and life without parole.

Part I of the Article describes the LWOP problem of capital sentencing — that the procedures either (1) obscure the choice between life with parole and life without parole or (2) remove that decision from the jury’s discretion altogether.  Part II addresses the central barrier to capital trifurcation — mandatory LWOP sentences.  To that end, it argues for the elimination of mandatory LWOP sentences, either by constitutional or statutory means.  Finally, in Part III, the Article proposes capital trifurcation, explaining the procedural nuances of and the theoretical justifications for this approach.

"How many women and men are released from each state’s prisons and jails every year?"

The question in the title of this post is the title snd topic of this new Prison Policy Initiative briefing authored by Leah Wang.  The subtitle highlights the contents: "We’ve drilled down into 2019 data to show prison and jail releases by sex in each state and made our best estimates of how many women and men were released from prisons and jails nationwide in 2022."  These data are fascinating, both the state-by-state numbers and other breakdowns as well as the cumulative data, and they serve to highlight the massive number of people who are subject to some form of incarceration over the course of a year in the US.  

I recommend clicking through to see all the numbers, but I was especially struck that Texas had over a million total releases from prisons and jails in 2019 and California had just shy of a million total releases from prisons and jails that same year.  As a point of comparison, this means that each of these two big states likely had more persons emerging from incarceration than the entire population of states like Vermont and North Dakota.  (I say "likely" because I suspect there are some persons sent to and released from jail multiple times that get double counted in the data on releases.)

For another set of notable numbers, this PPI briefing calculates a total of nearly 11 million releases in 2019 (10,817,398 to be exact), with the total released estimated to have declined in 2022 to "only" 7,659,492.  Even that lower number for estimated 2022 releases is larger than the population of about 35 states; the higher number from 2019 represents a population large enough to be one of the 10 biggest states in the US.  Put another (silly?) way, if all persons released from incarceration in a year were aggregated into a single new state, that new state would get apportioned a whole lot of representatives and electorial votes.

New Bureau of Justice Statistics report details "Heroin, Fentanyl, and Other Opioid Offenses in Federal Courts, 2021"

It is sometimes said that the wheels of justice turn slowly, and a new report provides an excuse to also note that the statistics of justice in federal courts often emerge slowly. This not-so-pithy observation is prompted by the emails I received today highlighting this new report from DOJ's Bureau of Justice Statistics titled "Heroin, Fentanyl, and Other Opioid Offenses in Federal Courts, 2021." Still, somewhat dated data is better than no data at all, and here is how the 24-page report gets started:

During fiscal year (FY) 2021, the Drug Enforcement Administration (DEA) made 3,138 arrests for fentanyl, 2,591 arrests for heroin, and 676 arrests for other opioid offenses.1 In FY 2021, for the first time, the number of arrests by the DEA for fentanyl (3,138) surpassed the number of arrests for heroin (2,591).  From FY 2020 to FY 2021, there was a 36% increase in arrests made by the DEA for fentanyl and a 29% decrease in arrests for heroin (table 1).  This report uses data from the Bureau of Justice Statistics’ (BJS) Federal Justice Statistics Program (FJSP) to describe persons arrested, convicted, and sentenced for federal drug offenses involving heroin, fentanyl, and other opioids....

N.1 Annual federal justice data are reported for the fiscal year, which is from October 1 to September 30.

HIGHLIGHTS

• From FY 2020 to FY 2021, the number of drug arrests the Drug Enforcement Administration (DEA) made for fentanyl increased by 36% from 2,305 to 3,138.
• In FY 2021, for the first time, the number of drug arrests the DEA made for fentanyl (3,138) surpassed the number of arrests for heroin (2,591).
• Of the 28,224 total drug arrests by the DEA in FY 2021, 3,138 (11%) were for fentanyl, 2,591 (9%) were for heroin, and 676 (2%) were for other opioids.
• DEA arrests for heroin, fentanyl, and other opioids increased from 4,830 in FY 2001 to a peak of 8,258 in 2015 and declined to 6,405 in FY 2021.
• In FY 2021,
  • 97% of persons sentenced for a drug offense involving opioids were sentenced for drug trafficking.
  • most persons sentenced for drug offenses involving heroin (89%) or fentanyl (87%) had a prior criminal history at sentencing.
  • persons sentenced for drug offenses involving heroin or fentanyl received a median prison term of 46 months, persons sentenced for oxycodone received a median prison term of 26 months, and persons sentenced for hydrocodone received a median prison term of 24 months.

Despite condemn's clams of innocence, Texas carries out its first execution of 2024

As reported here by CNN, "state of Texas has executed Ivan Cantu, who was convicted and sentenced to death for murdering his cousin and his cousin’s fiancée, though he insisted he was innocent." Here is a bit more:

Cantu, 50, was put to death Wednesday by lethal injection, with the time of death recorded as 6:47 p.m., the Texas Department of Criminal Justice said in a news release.  He was executed more than 20 years after his conviction....

For weeks, Cantu and his advocates — among them three jurors in the case — have called for his execution to be halted so he could argue he was deprived of a fair trial and framed by those who, in his telling, are truly responsible for the 2000 killings of his cousin James Mosqueda and his cousin’s fiancée, Amy Kitchen, a nursing student.

Idaho officials botch execution of serial killer by failing in repeated attempts to establish an IV for lethal injection

As reported in this AP article, "Idaho on Wednesday delayed the execution of serial killer Thomas Eugene Creech, one of the longest-serving death row inmates in the U.S., after a failed attempt at lethal injection." Here is more:

Creech, 73, was imprisoned in 1974 and has been convicted of five murders in three states and suspected of several more.  He was already serving life in prison when he beat a fellow inmate, 22-year-old David Dale Jensen, to death in 1981 — the crime for which Creech was to be executed more than four decades later.

Creech was wheeled into the room at the Idaho Maximum Security Institution on a gurney at 10 a.m.  The warden announced he was halting the execution at 10:58 a.m.  Six Idaho officials, including Attorney General Raul Labrador, and four news media representatives, including an Associated Press reporter, were on hand to witness the attempt.

Idaho’s prison director said the medical team could not establish an IV line to administer the fatal drug.  A team of three medical team members tried repeatedly to establish an IV, attempting sites in both of Creech’s arms and legs.  The IV sites appeared to be in the crook of his arms, his hands, near his ankles and in his feet.  At one point, the medical cart holding supplies was moved in front of the media witness viewing window, partially obscuring the view of the medical team’s efforts.  A team member also had to leave the execution chamber to gather more supplies....

After the execution was halted, the warden approached Creech and whispered to him for several minutes, giving his arm a squeeze.  Creech’s attorneys immediately filed a new motion for a stay in U.S. District Court, saying “Given the badly botched execution attempt this morning, which proves IDOC’s inability to carry out a humane and constitutional execution, undersigned counsel preemptively seek an emergency stay of execution to prevent any further attempts today.”

The Idaho Department of Corrections said its death warrant for Creech would expire, and that it was considering next steps.

Creech’s attorneys filed a flurry of late appeals hoping to forestall his execution.  They included claims that his clemency hearing was unfair, that it was unconstitutional to kill him because he was sentenced by a judge rather than a jury and that he received ineffective assistance of counsel. But the courts found no grounds for leniency. Creech’s last chance — a petition to the U.S. Supreme Court — was denied a few hours before the scheduled execution Wednesday....

Creech’s execution was to be Idaho’s first in 12 years. Last year, Idaho lawmakers passed a law authorizing execution by firing squad when lethal injection is not available.  Prison officials have not yet written a standard operating policy for the use of firing squad, nor have they constructed a facility where a firing squad execution could occur.  Both of those things would have to happen before the state could attempt to use the new law, which would likely trigger several legal challenges in court.

"Reviving Rehabilitation as a Decarceral Tool"

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

After advocates argued that circumstances attendant to late adolescent offenders make them less culpable for their offenses and better disposed for rehabilitation, the Massachusetts Supreme Judicial Court (SJC) held in January that it is unconstitutional to sentence 18 through 20 year olds to life without parole.  Last summer, Connecticut passed legislation providing a “second look” opportunity for parole to those incarcerated for lengthy prison sentences for crimes that they committed before they were twenty-one years old.  In 2021, Rhode Island decreased the amount of time that youthful offenders must serve before they become eligible for parole, but its highest court is currently interpreting disputed provisions.  Efforts to reduce lengthy sentences for late adolescents are grounded in scientific literature showing that “emerging adults” have great propensity for rehabilitation, rendering extraordinarily long prison sentences inappropriate.

Recently, national conversation has focused on reducing the front-end of incarceration, by shrinking police presence and decriminalizing drug and other nonviolent crimes.  Back-end decarceral efforts — so called “second look” sentencing and clemency initiatives — are either underappreciated or derided as reforms that legitimate a fundamentally unjust system.  While I embrace the need to significantly shrink the quantity of people in prison, sentencing reforms for emerging adults can meaningfully reduce our carceral footprint. Also, disproportionality by race in extreme sentencing suggests that late adolescents are particularly likely to be sentenced based on systemic racism and implicit biases in policing, prosecution, and sentencing, rather than unique characteristics or facts of their crimes.  Thus, effective “second look” efforts have the potential to address racial inequities.

This essay explores three state efforts to reduce the carceral terms of late adolescents, evaluating the advocacy strategies and compromises made to achieve meaningful reform. The Supreme Court recognizes that minors are less culpable, less deterrable, and more capable of rehabilitation than adults.  Significant research supports extending these findings to “emerging adults” — individuals under the age of twenty-five years old.  Should this rehabilitative lens, grounded in science, be effectively harnessed to the “back-end” reforms focused on those who commit crimes prior to the age of twenty-five, the potential decarceral effects can be widespread.  In the area of emerging adults and serious crime, criminal law minimalism means coupling the science about late adolescents with effective advocacy strategies to reduce our carceral population.

Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"

For a number of reasons, I always find white-collar sentencings to be fasciniating, and the scheduled sentencing next month of Sam Bankman-Fried is already fitting that characterization.  The latest development in the run-up to the March 28 sentencing comes in the form of SBF's lawyers submitting late yesterday this 90-page sentencing memo.  This document assails many aspects of how the probation office calculated the applicable guideline range and makes an array of arguments based on all the 3553(a) sentencing factors.  This lengthy document concludes with this paragraph that is titled "Sam Bankman-Fried's Sentencing Request":

Sam Bankman-Fried respectfully submits that, for the reasons set forth above, an appropriate method of arriving at a just sentence would be to consider the Adjusted Offense Level (Subtotal) of 56, reduced by 30 levels based on zero loss, which yields an advisory Guidelines range of 63-78 months.  When the § 3553(a) factors are considered, including Sam’s charitable works and demonstrated commitment to others, a sentence that returns Sam promptly to a productive role in society would be sufficient, but not greater than necessary, to comply with the purposes of sentencing.

Here are a variety of press accounts of this sentencing filing and some related SBF activity:

From Business Insider, "Sam Bankman-Fried's lawyer says sentencing the FTX founder to a 100-year prison term would be 'grotesque' and 'barbaric'"

From CoinPedia, "SBF Fights for Crypto Fraud Leniency: 6 Years vs. 110?"

From the New York Times, "Sam Bankman-Fried Makes His Last Stand: Since the disgraced crypto mogul was convicted of fraud, his supporters have maneuvered to secure a lenient sentence, with his lawyers recommending he serve no longer than 6.5 years in prison"

From the Wall Street Journal, "Sam Bankman-Fried Calls for Shorter Prison Sentence, Citing Autism: Lawyers for the FTX founder say he wasn’t motivated by greed but by a desire to better the world through philanthropic giving"

Prior related posts:

• You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts? 
• Some early chatter and speculation about Sam Bankman-Fried's coming federal sentencing 
• Should a bounce in crypto markets mean a much lower federal sentence for Sam Bankman-Fried? 

SCOTUS seems quite disinterested in blocking federal sentencing forfeitures due to court's procedural error

I have not been following closely McIntosh v. United States, the Supreme Court case argued today.  The question presented — "Whether a district court may enter a criminal-forfeiture order outside the time limitations set forth in Federal Rule of Criminal Procedure 32.2" — seemed quite minor and not especially consequential.  And today's argument seemed to confirm that McIntosh is likely to be forgotten as soon as it is decided.  Here are excerpts from this Bloomberg Law piece, headlined "Justices Doubt Strict Deadlines for Criminal Forfeiture Orders," which provides a feel for the argument:

The US Supreme Court didn’t seem to agree that there are strict time limits on a district court’s ability to order convicted criminals to forfeit property as part of a punishment.

The Federal Rule of Criminal Procedure say courts must enter a preliminary forfeiture order before sentencing. Because the government didn’t prepare a preliminary order and one wasn’t entered in Louis McIntosh’s case, he argues he can’t be forced to forfeit anything related to his crime....

Several of the justices from across the court’s ideological divide were skeptical of McIntosh’s claim that the rule is mandatory and appeared to question why he didn’t just object to the court’s final forfeiture order. “I guess I’m not understanding,” Justice Elena Kagan said.  “If the person objects at the time of sentencing and then the court says, ‘You know, you’re right, I should enter a preliminary order’ and then enters a preliminary order, then you have no complaint.”

Justice Clarence Thomas wanted to know how McIntosh was prejudiced by not getting a preliminary order first. “Didn’t the petitioner have actual notice that the government was going to seek forfeiture?” he asked....

After he was convicted in a series of violent robberies in New York and of weapons charges, McIntosh was ordered as part of his sentence to forfeit $75,000 and a BMW that was allegedly purchased with the proceeds of one of his robberies....

Federal appeals courts are split on the issue. Like the Second Circuit, the Fourth Circuit said the timing requirement for a forfeiture order is no different from the statutory deadline for restitution in the Mandatory Victims Restitution Act, which the Supreme Court said in Dolan v. United States is a “time-related directive.” The Sixth and Eighth Circuits, however, have denied forfeiture in cases where there was no preliminary order....

Signaling support for the government’s position, Justice Neil Gorsuch noted that the statute says there “shall be forfeiture.” “That’s Congress’s directive to us and often government agencies and courts miss deadlines,” he said. “But Dolan kind of recognized what I’ll call a better late than never rule in complying with congressional directives.”

"Reevaluating Felon-in-Possession Laws After Bruen and the War on Drugs"

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

The legal landscape surrounding firearm possession is evolving rapidly.  In 2022, the Supreme Court accelerated its expansion of the individual right to bear arms under the Second Amendment in New York Rifle and Pistol Association v. Bruen.  Since Bruen, courts around the country have struck down nearly all types of firearm regulations, with one notable exception: felon-in-possession laws.  This paper examines the implications of a legal landscape where those who have prior felony convictions, and especially prior drug convictions, are punished harshly for the same behavior, possession of a firearm, that is constitutionally protected for everyone else.

I argue that as the Second Amendment expands to protect more and more firearm possession, a dichotomy has arisen in which those who live in the communities most heavily targeted by the war on drugs of the 1980s and 1990s are increasingly becoming virtually the only Americans for whom firearm possession is illegal.  I examine the history and development of felon-in-possession statutes to show that they were not enacted with a clear purpose, and are not narrowly tailored to criminalize the most dangerous behavior. Further, I show how existing federal enforcement priorities and the structure of the United States Sentencing Guidelines compound the harms of the war on drugs by punishing individuals with prior drug offenses most harshly, even when there is limited evidence to suggest that they pose the greatest danger from firearm possession.

The Supreme Court is currently considering how to assess the question of danger in relation to the Second Amendment in United States v. Rahimi.  I argue that as Second Amendment jurisprudence evolves, prosecutors and legislators must be cognizant of the lasting effects of the war on drugs, and question the assumption that a prior felony conviction is an accurate proxy for dangerousness.

Two notable executions scheduled for tomorrow after a notably slow capital start to 2024

In the modern capital punishment era, the months of January and February often seem to be fairly active in execution chambers throughout the United States (perhaps in part becaise the holidays of November and December tend to reduce execution numbers).  Using the execution database at the Death Penalty Information Center, I checked out data going back every five years to discover that over the first two months of 2019, there were three executions; in 2014, there were 10 executions; in 2009, there were 15 executions; in 2004, there were 14 executions; and in 1999, there were 22 executions(!) over the first two months of that year.

But so far in 2024, there has only been a single execution in US (albeit a high-profile one due to Alabama's use of a new execution method).  If this month were to close without another execution, we would have the fewest US executions to start a year since 2008 when all executions were halted as the Supreme Court considered constitutional challenges to lethal injection protocols in Baze v. Kentucky.  However, there are actually executions scheduled in two states tomorrow.  Here are press stories providing background:

"Idaho to execute Thomas Creech, infamous serial killer linked to at least 11 deaths"

"A Texas man on death row says his execution this month would be 'for a crime I didn't commit'"

I sense that claims of innocence in the Texas case might create some chance that one of these two scheduled executions does not go forward tomorrow.  But I expect both will be carried out, which would bring the number of executions over the first two month of 2024 up to a total of three.  Notably, the latest DPIC list of upcoming executions does not currently list any executions scheduled this year for the months of March or May and only a couple executions scheduled for April and June.  This schedule certainyl suggest that the historically low number of executions may continue through 2024, although states always can (and often do) add new execution dates in mid-year.

Federalist Society webinar to explore "The First Step Act: Is It Working and What’s Next?"

Tomorrow at noon EST, The Federalist Society is conducting this webinar titled "The First Step Act: Is It Working and What’s Next?". Here is the event's description and its speakers:

The First Step Act of 2018, passed as the result of bi-partisan efforts during the Trump administration, aimed to reduce the population of those in federal prison and to limit some federal prison sentences.  Over the years some have contended the act is working well, while others argue it has only partially delivered on its goals or it was flawed from the start.  Now, as the act recently celebrated its 5-year anniversary, join us for a panel discussing the First Step Act, its impact, legacy, and future.

Featuring:

• Stephanie Kennedy, Policy Director, Council on Criminal Justice
• Rafael A. Mangual, Fellow and Deputy Director of Legal Policy Contributing Editor, City Journal, The Manhattan Institute
• (Moderator) Vikrant P. Reddy, Senior Fellow, Stand Together Trust

"Supervising Sentencing"

The title of this post is the title of this new article authored by Renagh O'Leary now available via SSRN.  Here is its abstract:

Community supervision agencies and officers do not just supervise people on probation and parole.  They also play a unique and privileged role at sentencing.  In nearly every state, community supervision officers investigate and write the presentence report, which is often the judge's primary source of information about the defendant and the crime of conviction.  With minimal guidance from legislatures or courts, community supervision agencies set the policies that govern the presentence investigation and report process.

This Article offers a descriptive and theoretical account of community supervision's sentencing role in state courts.  My account is based on an analysis of statutes, court rules, and a collection of almost 200 internal community supervision agency policy documents obtained through open records requests to community supervision agencies in every state.  I find that community supervision agencies and officers do not simply implement sentencing policy; in key respects, they make it.

In their sentencing role, community supervision agencies and officers take positions on highly contested first-order questions about the sentencing process itself: what goals, values, and assumptions should guide sentencing decisions? What types of facts should sentencing judges consider?  How should those facts be found, and what meaning do they support?  I argue that community supervision's answers to these questions both reflect and reinforce what I describe as a punitive perspective on the sentencing process: one that sees the criminal legal system as just, criminal punishment as socially beneficial, and criminal defendants as moral failures.  Community supervision's sentencing role elevates the punitive perspective on the pretense of neutrality and, by doing so, helps to insulate it from challenge and critique.

Senate Judiciary Committeee hearing scheduled for "Examining and Preventing Deaths of Incarcerated Individuals in Federal Prisons"

In this post a few weeks ago, I noted the DOJ Inspector General's new report on issues surrounding inmate deaths in the Federal Bureau of Prisons (BOP).  This report, which "identified several operational and managerial deficiencies that created unsafe conditions prior to and at the time of a number of these deaths," has now lead to a congressional hearing. 

As detailed here, the full US Senate Judiciary Committee will be conducting a hearing on the morning of February 28, 2024, focused on "Examining and Preventing Deaths of Incarcerated Individuals in Federal Prisons."  As of this writing, the only scheduled witnesses for this hearing are Michael Horowitz, DOJ's Inspector General, and Colette Peters, the Director of the Federal Bureau of Prisons.  

My sense is that Congress has conducted any number of hearings relating to any number of problems with BOP "operational and managerial deficiencies" that contribute to harmful and deadly prison conditions.  I hope this latest hearing might help advance legislative action to address BOP problems, though it is always seemingly easier for Congress to talk about problems than to act on them.

"Criminal Law Minimalisms"

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

What is criminal law minimalism?  At first blush, it appears to be the sober and sensible cousin of abolition.  Where the language of abolition is radical and absolute, the language of minimalism speaks to moderation, pragmatism, and nuance.  While I appreciate calls for nuance, I’m not sure that minimalism offers the clarity it promises or answers the hard questions about how to address the ills of the U.S. criminal system.

As a theory or label, minimalism raises two major questions: (1) a question of scope; and (2) a question of scale.  On the question of scope, what exactly should be minimized?  The number of criminal laws?  The severity of criminal punishment?  The extent of policing?  The presence of criminal and quasi-criminal institutions of social control? The prevalence of punitive cultural impulses?  Something else?  On the question of scale, what does minimalism mean? Arguing that society should use criminal law and punishment as little as possible raises the important question of how we know what the minimally acceptable amount of criminal law is.  Without a shared understanding of what criminal law is supposed to do, how do we know what properly functioning minimalism looks like?  Depending on one’s normative vision for criminal law, minimalism could involve a radical project of decarceration, decriminalization, and de-policing.  Or, it could involve a slight recalibration of the status quo.

In this Essay, I raise these questions as they pertain to the minimalist project.  If “criminal law minimalism” is to be taken seriously as a theoretical alternative to both abolition and conventional reform, it is necessary to understand what minimalism entails or what it offers us.  And, that means answering — or at least grappling with — these fundamental questions of scope and scale.  Instead of a coherent theory of criminal law minimalism, I see a range of different criminal law minimalisms, reflecting a range of focal points, ideological projects, and first-order commitments.  In this Essay, then, I begin to tease apart different possible minimalisms and what they might tell us about defensible or desirable criminal policy.

US Sentencing Commission publishes public comment and plans for public hearing on proposed guideline amendments

I was pleased to discover on a lazy Sunday that the US Sentencing Commission is continuing to be quite busy.  Specifically, today the USSC officially posted here a "Compilation of Public Comment" concerning the proposed sentencing guideline amendments that the USSC set out back in December (details here).  The compilation comprises this 867-page pdf document, which  the USSC's describes as a "representative sample of public comment" that has been "carefully selected, redacted, and posted online to provide the public with the kind of information considered by the Commissioners during their deliberations." 

In addition, the Sentencing Commission today also noticed here its planned "Public Hearing on Proposed Amendments to the Federal Sentencing Guidelines" to take place in DC on March 6-7, 2024.  This hearing will be live-streamed, and the "purpose of the public hearing is for the Commission to receive testimony from invited expert witnesses on proposed amendments to the federal sentencing guidelines."  The topics and witnesses for the two hearing days are all fascinating, though I will admit to being especially interested in the topics of focus for day 1 ("acquitted conduct" and "simplification"). 

Prior related post:

• US Sentencing Commission publishes for comment 755 pages(!) of "Proposed Amendments to the Sentencing Guidelines