Sentencing Law and Policy

"After pardons, J6ers take up a new cause: Prison reform"

The title of this post is the headline of this new Washington Post article.  I recommend the full piece, and here are excerpts:

Standing in front of a crowd outside the U.S. Capitol on Thursday, Jan. 6 defendant Brian Mock began telling his story, his version of the attack on the Capitol that threatened the United States government.

Mock, who was sentenced to 33 months in prison for crimes related to Jan. 6, pushed back against the government’s claims that he assaulted police officers. He detailed his painful experiences while incarcerated, including what he described as an excessive use of solitary confinement. He decried the American justice system for inhumane prison conditions and called on President Donald Trump to help people incarcerated in federal prison who could be eligible for early release.

“This is the evolution of Jan. 6 activism post-pardon,” Mock, 46, of Marshall, Minnesota, said to cheers. “Civil rights and humanitarian issues are what we’re here about. … So I’m here to stand up for prisoners.”

Mock is part of a wave of Jan. 6 defendants who, spurred by their time incarcerated, are now embracing prison reform as their cause. In Washington state, the wife of a Jan. 6 defendant started a nonprofit to help children with incarcerated parents. Another J6er is part of the team behind Stop Hate, an organization that supports Jan. 6 defendants and says that it wants Congress to address neglected medical needs while incarcerated, due process violations and changes to solitary confinement....

At the news conference, Mock asked Trump to commute the sentences of all federal prisoners who have served at least 50 percent of their sentence and are eligible for early release under the First Step Act, a law that shortens sentences for some offenders and expands job training and other programs. The bipartisan measure, which Trump signed into law in 2018, was celebrated as the most far-reaching overhaul of the criminal justice system in a generation.

Mock, the co-founder of a civil liberties division of the On Your Six Foundation, an organization that supports veterans, also announced his intent to file a class-action lawsuit against the Bureau of Prisons and the Department of Justice, claiming they are violating the requirements of the First Step Act. In December, the American Civil Liberties Union also sued the BOP, alleging that its failure to implement the law violated the rights of thousands of people who should be released from custody but were being illegally held.

Prez Trump continuing to make robust use of his clemency pen (for white-collar offenders)

Prez Trump made historic use of his clemency powers during his first few days in office this year, and he clearly continues to enjoy to exercising his broad executive authority to grant pardons and commutations.  Consider all this federal clemency action today:

"Trump pardons three founders of BitMEX cryptocurrency exchange convicted of money laundering"

"Convicted of bilking investors, Nikola founder and Trump donor gets a presidential pardon"

"Trump commutes sentence of Ozy Media founder Carlos Watson convicted of fraud"

"Disentangling Safety and Accountability in Criminal Justice Policy"

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

In this Article, I argue that the U.S. criminal system and debates about criminal justice reform reflect an elision of two largely distinct social functions: ensuring public safety and imposing accountability for harmful conduct.  Despite deep disagreement about the specifics, most commentators seem to accept that these are both important social functions. Abolitionists claim that the criminal system doesn’t keep people safe and provide accountability.  Instead, it harms — and perhaps is meant to harm — people from marginalized communities and protects the interest of socially dominant groups. Reformers contend that the criminal system can and should serve the safety and/or accountability interests, but it currently doesn’t.  Meanwhile, defenders of the status quo claim that criminal legal institutions serve these two core state functions (and perhaps others).

I argue that it’s a mistake to imagine that the same institutions could or should fulfill both of those functions.  I contend that the contemporary U.S. criminal system often relies on a foundational problem: entangling the safety function and the accountability function.  Imposing some degree of stigma might be a desirable feature of an accountability-based system, but is it actually necessary in a system focused on public safety?  Similarly, forms of surveillance and social control might be defensible features of a system focused on public safety, but are they actually necessary to ensure accountability?  The answer to both of these questions should be no.  But with criminal legal institutions understood as advancing both functions, we are left with a troubling, incoherent, and often-counterproductive amalgam of the problematic features of both. Ultimately, we all won’t agree on the best way to ensure public safety or to hold people accountable.  But, taking seriously the distinction between those ends might help set the stage for more fruitful debates about what features of contemporary penal administration should be preserved, reformed, or abolished.

"Encouraging Desistance Using Second Chance Mechanisms"

The title of this post is the title of this forthcoming book chapter authored by Isabella Polito and Colleen M. Berryessa. Here is its abstract:

High rates of recidivism in the age of mass incarceration have prompted efforts for more rehabilitative approaches to criminal justice that support desistance while balancing public safety concerns and the resulting political feasibility of such reforms.  Sentence reduction efforts, referred to as “second chance” mechanisms, encourage the use of new and existing practices to reduce incarcerated populations and encourage deterrence from criminal behavior and successful rehabilitation.  Presumptive parole, universal parole eligibility, granting good time credit, and the elimination of parole revocations for technical violations encourage the swift release of individuals upon being eligible for release, while the mechanisms of second-look sentencing, commutation, retroactive application of sentencing reforms, and compassionate release encourage institutional changes that support the release and recovery of incarcerated people.  Overall, this chapter addresses how second chance mechanisms encourage desistance and discusses their political feasibility -- especially considering public support for sentence reduction strategies and concerns about public safety.

Rounding up lots of different criminal justice pieces catching my eye

I am going to be off-line more than usual in the coming days, and so a round-up of some piece catching my eye that I won't have time to cover in distinct posts seems in order.  And so:

From Bolts, "'Some of These Kids Are Already Lost When They’re Two Years Old': Louisiana leaders want more leeway to charge kids as adults. A measure on the March 29 ballot would enable lawmakers to move more teenagers into the adult criminal system."

From CBS News, "Federal judge says extreme heat in Texas prisons is "unconstitutional," but denies immediate A/C installation"

From The Hill, "Americans with criminal records don’t deserve a lifetime Scarlet Letter"

From InForum, "Truth-in-sentencing bill would create more crime, be ‘dangerous’ for North Dakotans, prison leader says"

From the Los Angeles Times, "D.A. Hochman officially brings death penalty back to Los Angeles"

From MSNBC, "Trump open to possible ‘compensation fund’ for pardoned Jan. 6 criminals"

From NORML, "Number of Federal Offenders Charged With Marijuana Trafficking Hits Record Low"

From NPR, "Reporter's notebook: 8 theories why fentanyl deaths are plummeting"

From Reuters, "Exclusive: DOGE staffer 'Big Balls' provided tech support to cybercrime ring, records show"

From Sentencing Matters Substack, "Interview: Former Prosecutor, Adjunct Law Professor, and White House Aid, and Current Criminal Justice Commentator, Bill Otis"

"Disenfranchisement Creep"

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

Under federal law, states decide whether people lose their voting rights as a result of criminal convictions or mental incapacity.  But states vary widely in whether they take federal law up on that offer of exclusion.  In one state, you may never lose the right to vote for a felony conviction; in another, you might be disenfranchised for life.  Existing literature has explored many facets of disenfranchisement, from analyzing its impacts to proposing reforms.  But it has largely overlooked the key role of state constitutions in limiting disenfranchisement — and the ways in which state actors routinely exceed those limits.

Unlike the U.S. Constitution, which has no explicit voting rights guarantee, state constitutions both affirmatively grant the right to vote and list explicit, enumerated exceptions from that right.  But state actors routinely overstep those bounds—a practice this article refers to as “disenfranchisement creep.”  Based on original analysis of all fifty state constitutions and the complex network of statutes, regulations, and practices that together constitute state disenfranchisement law, this article identifies two primary ways in which state actors disenfranchise people beyond the scope of state constitutions.  First, state actors explicitly disenfranchise groups of people beyond what the constitutional text seemingly allows.  This article newly identifies this phenomenon of de jure disenfranchisement creep.  Second, state actors impose myriad burdens, large and small, that effectively disenfranchise those who supposedly have the right to vote.  This article newly explores this de facto disenfranchisement creep through the lens of state constitutions, concluding that it often violates existing voting rights guarantees.  In identifying both types of overreaches, this article offers an underexplored approach to reining in disenfranchisement: state constitutional claims in state court.

In "ghost gun" case, Justice Kavanaugh suggests due process defense "based on lack of fair notice" for potential federal firearm crimes

The Supreme Court this morning decided the so-called "ghost gun" case, Bondi v. Vanderstok, No. 23-852 (March 26, 2025) (available here), which addressed the lawfulnees of an ATF rule interpreting the Gun Control Act of 1968 to cover weapon parts kits.  By a 7-2 vote, the Court rules that the "GCA embraces, and thus permits ATF to regulate, some weapon parts kits and unfinished frames or receivers."  Some small interesting elements for criminal law fans include Justice Gorsuch, who wrote the opinion for the majority, disposing of a "rule of lenity" argument in just a sentence.  Justice Thomas, who authored a lengthy dissent, states at the end that he "would apply the rule of lenity here."

As the title of this post reveleas, the criminal justice item that caught my eye in Vanderstok was a short concurrence by Justice Kavanaugh. Here is his five-paragraph concurrence in full with my empahsis added toward the end:

I join the Court’s opinion in full. I add this concurrence to briefly address mens rea issues with respect to ATF’s 2022 rule.

Under ATF’s rule, an individual or business acting in good faith might nonetheless have substantial difficulty determining when weapon parts kits or unfinished frames or receivers qualify as firearms — and thereby become subject to the Gun Control Act’s licensing, recordkeeping, serialization, and background-check requirements. Some weapon parts kits and unfinished frames or receivers may qualify as firearms, and others may not. See ante, at 13, 21. The line is not entirely clear.  Despite the vagueness of the line, the penalties for violations are significant and can include fines and imprisonment.  See 18 U.S.C. § 924.

But importantly, under the Gun Control Act, someone can be penalized for violating the licensing, recordkeeping, or serialization requirements only if he does so “willfully.” § 924(a)(1)(D).  To prove “willfulness,” the Government must demonstrate that an individual knew that his conduct was unlawful, not merely that he knew the facts that made his conduct unlawful. Bryan v. United States, 524 U.S. 184, 191–196 (1998). Therefore, with respect to ATF’s rule, the “willfulness” requirement should help prevent the Government from unfairly penalizing an individual who is not aware that his conduct violates the law.

As to background-check violations, by contrast, the statute penalizes violations committed “knowingly.” §§ 922(t), 924(a)(5). The “knowingly” mens rea requires “proof of knowledge of the facts that constitute the offense.” Id., at 193.  Unlike the “willfully” mens rea, it generally does not require knowledge that the conduct was unlawful. See id., at 192–193.  That lesser “knowingly” mens rea requirement could therefore create concerns about fair notice, at least in certain cases. See Wooden v. United States, 595 U.S. 360, 379 (2022) (KAVANAUGH, J., concurring).

That said, at oral argument, the Government represented that it would “likely” decline to “charge someone” for a background-check violation in the “kind of situation” where the individual was not aware that he was violating the law. Tr. of Oral Arg. 46–47.  As the Government seemed to recognize, if the Government were to charge a backgroundcheck violation against an individual who was unaware that he was violating the law, that defendant might have a due process argument based on lack of fair notice. I expect that the Government will seek to avoid that potential fair-notice problem by adhering to its oral-argument representation that it would likely decline to bring charges in those circumstances.

Though I am not an expert on all jurisprudence supporting a "due process [criminal defense] based on lack of fair notice," I read Justice Kavanuagh as pushing existing jurisprudence here.  Notably, he just says a defendant "might" have a "due process argument," and he does not cite any caselaw in which such an argument was developed.  Moreover, I wonder how such a claim would get litigated.  What if an individual said he was unsure if a gun part was subject to the ATF rule because he decided not to research the matter? 

Generally speaking, the Supreme Court and lower courts have tended to treat mens rea issues as matters of statutory interpretation, not as matters of constitutional dispute.  But Justice Kavanaugh, who often raises mens rea issues in a variety of settings, once again highlights his particular concerns with mental states and criminal enforcement.  And it seems, based on the sentence highighted above, that his concerns sometimes are of a constitutional dimension.

Texas DA gives up capital charges for plea from El Paso Walmart mass murderer

As reported in this local article, "El Paso District Attorney James Montoya campaigned for the job saying he would pursue the death penalty against the 26-year-old gunman who killed 23 people in a local Walmart in 2019 and said he wanted 'to shoot as many Mexicans as possible.'  But after the case had passed through the hands of four different prosecutors and dragged out nearly six years, on Tuesday Montoya said his office had consulted with victims’ families as well as surviving victims and decided to offer Patrick Crusius a plea bargain that didn’t include the death penalty."  Here is more:

“This was not a decision that was reached lightly or hastily,” Montoya said at a news conference. He explained that pursuing the death penalty would prolong the case for several more years. 

The plea deal would allow a judge to sentence the gunman to life in prison without the possibility of parole.  Montoya said he still believes the gunman — who was convicted and sent to prison by federal prosecutors as the state case dragged on — deserves the death penalty, but he didn’t want to delay closure for the families.  “I believe in the death penalty. I believe that this defendant deserves the death for what he did,” he said.

Montoya said a plea and sentencing hearing is scheduled for April 21.  Montoya said most of the families told him they supported the decision because some are tired of all the court proceedings. But some families wanted Montoya to keep pushing for a death sentence, even if it took several more years.

On Aug. 2, 2019, Crusius drove more than 600 miles from his home in Allen, north of Dallas, to El Paso and began shooting people in the parking lot of a Walmart that was busy with back-to-school shoppers. Then he entered the store and continued his rampage.  The victims were mostly Mexican-Americans and Mexican citizens from El Paso and Ciudad Juárez. One of the victims was a 66-year-old German man who moved to Mexico in the 1980s, married a woman from Juárez and settled there.  The victims ranged in age from 15 to 90....

In July 2023, he was sentenced in federal court to 90 consecutive life sentences after federal prosecutors opted not to pursue a death sentence.  At the time, El Paso District Attorney Bill Hicks, Montoya’s predecessor, said he would seek the death penalty on the state charges.

This press piece and others I have read made leave somehwat unclear whether the victims' families may have actively pushed for this deal or whether the DA decided it was a good idea upon hearing families stating that they were "tired of all the court proceedings."  Whatever the particulars, it is fascinating that Texas has executed dozens of persons for a single murder in recent years, but this defendant who killed 23 people and injured 22 others will no longer even face a possible death sentence.  Such is the reality of prosecutor (sentencing) discretion.

Prez Trump pardons former business partner of Hunter Biden convicted in 2018

As reported in this AP piece, "President Donald Trump on Tuesday pardoned a former business partner of Hunter Biden who was convicted of participating in a conspiracy to defraud a Native American tribe." Here is more:

Devon Archer later became a key figure in the congressional inquiry into the Biden family businesses, telling lawmakers behind closed doors that the younger Biden sold the “illusion of access” to his father.

Before signing the pardon, Trump said Archer was treated “very unfairly.” White House staff secretary Will Scharf said the “tone and tenor” of the prosecution changed after Archer began to cooperate with congressional investigators in the Biden family inquiry.

Archer was convicted in 2018 in a scheme to defraud the tribe that involved the sale of bonds. His conviction was overturned later that year before the court of appeals in New York reinstated it in 2020. He was sentenced in 2022 to a year in prison. Archer has denied any wrongdoing and called himself a “victim of financial fraud.” In a Fox News appearance on Monday, Archer said of the potential pardon: “I didn’t think I’d need this because I never did anything.”

Archer testified before the Republican-led House Oversight Committee in 2023 as GOP lawmakers tried to make the case for impeachment proceedings against President Biden. Archer told the committee that President Biden was never directly involved in their financial dealings, though Hunter would often put his father on speakerphone to impress clients and business associates.

"Blindfolded Juries, Coerced Convictions: Why Prosecutors Often Win Before Trials Even Begin"

The title of this post is the title of this new article by Clark Neily that serves as the cover story of the latest issue of the Cato Institute's Free Society magazine. Here is how the article begins:

The Bill of Rights dedicates more words to the resolution of criminal charges than any other subject, establishing a criminal justice system in which defendants are afforded rigorous protections such as the presumption of innocence, the right to counsel, and trial by jury.

But the Founders would hardly recognize today’s adjudicative process, which is more akin to an industrial-scale assembly line that prioritizes expediency over fairness and churns out guilty pleas through ad hoc, extraconstitutional dealmaking that systematically excludes ordinary citizens from a process in which they were meant to be the key players. And the small handful of defendants who resist the often palpably coercive pressure to plead guilty will be tried by a jury that has been carefully curated and indoctrinated to ensure it is free of people who understand the historic powers of jurors in our system, including but not limited to conscientious acquittal.

Reviewing evolving execution methods in the states

Law360 has this lengthy new piece, headlined "La.'s First Nitrogen Execution Reflects Broader Method Shift," which discusses recent state execution method trends.  Here are a few excerpts:

Louisiana's adoption of the nitrogen gas method is part of a broader shift to alternatives to lethal injections, which have faced intense judicial scrutiny as well as a shortage of raw materials needed to carry them out, resulting in hiatuses in executions in several states. Overall, states with capital punishment have signaled an intention to restart their execution programs, some of which have stalled for years, and for some states this involves shifting to new methods.

In January 2024, Alabama became the first jurisdiction in the world to use nitrogen gas, and has since used it to execute four people. Mississippi and Oklahoma also allow for the method but have yet to use it.... On March 7, South Carolina executed Brad Sigmon, a man convicted of murder, by firing squad — the first time the state used that method. His execution marked the first time in 15 years such a method was used to kill a prisoner....

Sigmon's execution signaled an expansion of the use of firing squads, and other states might soon embrace it. Utah, Oklahoma, Mississippi, South Carolina and Idaho currently authorize the firing squad as an execution option.

Utah is the only state that has long allowed firing squads and has used it during the 20th century. Oklahoma and Mississippi added it as a backup method in the 2010s, while South Carolina legalized it in 2021 as a way to resume executions when drugs are unavailable. Idaho adopted it in 2023 for similar reasons.

In lengthy statements, Justices Alito and Gorsuch take issue with (modern, originalist?) Confrontation Clause jurisprudence

In the (decidedly non-originalist) opinion in Williams v. New York, 337 U.S. 241 (1949), the Supreme Court rejected arguments that a defendant had a right to confront witnesses whose testimony was used against him by a judge at sentencing.  The textual and historical basis for this ruling has never seemed especially solid, as evidenced by law review articles here and here.  And yet, courts continue to state and hold that "a sentencing court is ... not bound by the Confrontation Clause." US v. Raheem, No. 23-5324 (6th Cir. Feb. 12, 2025), even though 20+ years ago the Supreme Court recast Confrontation Clause jurispudence in originalist terms with its landmark ruling in Crawford v. Washington, 541 U.S. 36 (2004). 

I provide all this backstory to highlight why sentencing fans, and not just trial lawyers, ought to be intrigued by two extended statements, appearing at the end of today's Supreme Court order list, authored by Justices Alito and Gorsuch in conjunction with a denial of certiorari in Franklin v. New York.  Justice Alito's statement runs four pages and Justice Gorsuch's runs eight; both statements call for reconsideration of the originalist(?) jurisprudence that has developed since Crawford.  Here is how Justice Alito's statement concludes:

[A]s both JUSTICE GORSUCH and I recognize, the current state of our Confrontation Clause jurisprudence is unstable and badly in need of repair.  If we undertake that project, we should not limit our efforts to an attempt to shore up what may be a fundamentally unsound structure.

If we reconsider Crawford, as I think we should, the result might be a reaffirmation of Crawford or the adoption of an entirely different Confrontation Clause rule. But whatever the outcome might be, reconsideration is needed.

Intriguingly, Justice Alito's statement suggests he would be drawn to a more limited application of the Confrontation Clause as part of the "reconsideration"' that he says is "needed."  But Justice Gorsuch's statement concludes with a footnote seemingly pushing in the other direction: "reexamining the relevant history might well require us not only to “reaffir[m]” Crawford, as JUSTICE ALITO suggests, ante, at 4, but to broaden its protections."

Unsurprisingly, neither Justice speaks to sentencing issues in their statements, but their statements take me back to my Sentencing Matters Substack substack post a few months ago, "Initial musings on the Supreme Court’s originalist turn and sentencing issues."  In that post I noted that "many modern sentencing doctrines and practices seem still in tension with a robust originalist approach to the Sixth Amendment."  I do not expect these new statements to change this story.  Still, I think it quite important, quite telling and quite notable that at least two Justices are seemingly eager to reconsider a (problematic?) criminal justice jurisprudence that has already taken an originalist turn while there are so many other (problematic!) criminal justice doctrines that have not yet been given much, if any, serious originalist attention.

Sound advice for assessing encouraging crime data at the start of 2025

In this post last month, I flagged lots of encouraging data from a number of big cities about homicide trends at the start of 2025.  That post cautioned about drawing strong conclusions or having firm expectations based on "early" crime data, but I still found the numbers heartening.  Writing in the same vein, Jeff_Asher has this new post at Jeff-alytics that mixes caution with optimism under the full title: "Take Early Crime Data Seriously But Not Literally; It's too early and the reporting is too flawed to reach conclusions just yet!".  I recommend the full post, and here are excerpts (with links from the original):

The first update to the Real-Time Crime Index was released last week covering January 2025. This update showed a 15 percent drop in murder, a 13 percent decline in violent crime, and a 15 percent decline in property crime through January 2025 relative to January 2024 in a sample of more than 340 big city and county agencies. More than 92 million Americans are represented in this month’s sample, our biggest sample by population yet....

The decline reported in the RTCI sample matches the eye test as big cities like New York, Chicago, Philadelphia, St Louis, New Orleans, Denver, and Los Angeles are all reporting large declines in nearly every category of crime so far in 2025.

That said, there are several reasons why it’s probably a bit too early to draw any definitive conclusions about where crime is headed nationally in 2025.... My personal take on the first month of data is that crime, including murder, is down a lot though it will take some time to understand just how much. The RTCI is useful for understanding that trend though the usefulness will only increase as the year goes on. If the February data shows the same pattern then we can start more seriously thinking about the nation's crime trends for 2025.

I highly encourage folks to read the full Jeff-alytics post to review the "several reasons" not to assume too much about what the eary 2025 crime data might mean for all of 2025. That said, I still find myself getting quite hopeful about the early trends.

"Public support for universal second look sentencing, a research note"

The title of this post is the title of this notable new article from multiple authors just published in the journal Criminology.  Here is its abstract:

Based on a 2023 national YouGov survey (N = 800), we explored public support for universal second look sentencing — the view that all incarcerated individuals, not just those who committed their crimes before they were age 25, should be eligible to have lengthy sentences revisited by judges after serving 15 to 20 years in prison.  A majority of Americans supported a universal policy, with only 1 in 5 respondents opposed.  Multivariate analyses showed that redeemability is not static but dynamic. It can be earned if incarcerated people signal their reformation by completing rehabilitation programs and receiving a positive recommendation from the warden. Support from the victim (or their family) also matters.  Given the public's endorsement, second look sentencing may be a viable policy to address mass incarceration and the problem of extreme prison terms.