Sentencing Law and Policy

Judge rejects new Los Angeles DA's request to revoke predecessor's resentencing petition for Menendez brothers

As reported in this Los Angeles Times article, headlined "Menendez brothers to get resentencing after D.A. fails in bid to stop it," yesterday brough a notable development in a notable state resentencing effort. Here are excerpts from a lengthy article:

An L.A. County judge denied Dist. Atty. Nathan Hochman’s bid Friday to revoke a petition to resentence the Menendez brothers that was filed by his predecessor, setting the stage for a hearing that could offer the brothers a path to freedom next week.

Superior Court Judge Michael Jesic denied Hochman’s request after a tense, daylong hearing that saw prosecutors display bloody crime scene photos of the bodies of Jose and Kitty Menendez in a courtroom lined with their relatives, many of whom want their killers, sons Erik and Lyle Menendez, set free.

In October, former Dist. Atty. George Gascón sought to have the brothers resentenced to 50 years to life in prison — a move could have made them eligible for parole as youthful offenders because they carried out the killings before they were 26 years old. After Hochman thrashed Gascón in the November election, he promised to revisit the Menendez case.

Last month, Hochman formally announced his opposition to their release and said he’d ask a judge to rescind Gascón’s petition and only consider his filing as the official position of the district attorney’s office. He focused on the idea that the brothers had not shown proper “insight” into their crimes, but Jesic dismissed that as irrelevant to the resentencing proceedings and said “there was nothing really new” in the analysis of the case offered by Hochman....

Jesic’s ruling on Friday clears the path for a resentencing hearing, which is expected to last at least two days and begin in Van Nuys on Thursday....

While the brothers’ resentencing petition will draw droves of media to a Van Nuys courtroom over the next several weeks, it is not their only potential path to freedom. In addition to their motion for a new trial based on fresh allegations of sexual abuse by their father, Gov. Gavin Newsom is considering the brothers’ application for clemency and directed the state parole board to launch a risk assessment of the brothers.

If they were granted clemency and appeared before the parole board, however, Hochman has vowed to fight their release again.

Some prior related posts:

• Kim Kardashian advocates reconsidering Menendez brothers' LWOP sentences just as Los Angeles DA begins to do so
• LA District Attorney announces that he will seek resentencing for the Menendez brothers
• Continuing coverage and comment on Menendez brothers' possible resentencing 
• California Gov to hold off on Menedez clemency decision pending resentencing review by new DA
• New Los Angeles DA asks to withdraw prior DA's motion for resentencing in Menedez brothers' case 

South Carolina completes its second execution by firing squad

As reported in this local piece, "At 6:01 p.m., in a crack of rifle shots, Mikal Mahdi was executed inside of the Broad River Road Correctional Institution in Columbia, South Carolina, on Friday."  Here is more:  

Mahdi, who killed two people during a 2004 crime spree across four states, was sentenced to death after pleading guilty in 2006.

He chose to die by firing squad, making him just the second person in South Carolina to select that method of execution. He was just the fifth person in the United States executed by firing squad since 1976, when the U.S. Supreme Court re-instituted the death penalty...

On Friday afternoon, the U.S. Supreme Court declined to take up Mahdi’s appeal. Mahdi was sentenced to death in 2006 for the murder of off-duty Orangeburg Department of Public Safety captain James Myers. Mahdi ambushed Myers, 56, as the officer returned from celebrating his daughter’s birthday at the beach. Mahdi, 21 at the time, was hiding in a shed on Myers’ property in Calhoun County....

Just days before murdering Myers, Mahdi shot and killed a North Carolina gas station clerk, Christopher Boggs, over a can of beer and carjacked a vehicle in Columbia, South Carolina. The crime spree began only months after Mahdi was released from prison.

First Circuit Solicitor David Pascoe, who tried Mahdi, described him as “evil,” with “no regard for human life,” while Mahdi’s defense attorneys argued he was psychologically damaged by an abusive childhood compounded by long periods of isolation....

Violence followed Mahdi in prison. In 2009, Mahdi and another inmate stabbed a death row guard with improvised metal knives. The guard survived the stabbing, which took place inside of the Lieber Correctional Institution in Ridgeville. In an opinion upholding Mahdi’s sentence in a previous appeal, state Supreme Court Justice Jean Toal wrote, “in my time on this Court, I have seen few cases where the extraordinary penalty of death was so deserved.”

US Sentencing Commission votes to promulgate notable amendments to the US Sentencing Guidelines

At a public hearing this afternoon, the US Sentencing Commission voted unanimously to advance a significant set of amendments to the federal sentencing guidelines.  One major amendment is focused on guideline "simplification" by eliminating lots of  "departures" from the guideline manual (which have functionally withered since Booker made the guidelines advisory 20 years ago).  Additional amendments focused on supervised release, drug offenses, firearm offenses and a few circuit conflicts. 

There are lots of intricacies here, but the simplification and supervised release amendments will, at least indirectly, impact almost every federal sentencing.  And I believe the drug and firearm amendments could impact a considerabe number of cases.  (The USSC also voted to conduct a retroactivity impact analysis for one part of the drug guideline reform and for the circuit conflict reforms.)  Because Congress gets six months to review the Commission's proposed amendments, these changes do not become effective until November 1, 2025 (assuming Congress does not intervene, which it has done only once over 30+ years of guideline amendments).   

When the USSC formally announces all the details of these amendments, I will update this post.   

UPDATE:  Here is the USSC's press release providing an efficient accounting of its notable work today:

Today, the bipartisan United States Sentencing Commission voted unanimously to publish amendments to the federal sentencing guidelines for the amendment cycle ending May 1, 2025.  These amendments update a range of guidelines provisions, including those related to supervised release, drug trafficking, and firearms offenses. “The policies issued today are bipartisan, common-sense ideas that will protect public safety, reduce recidivism, and facilitate rehabilitation,” said Judge Carlton W. Reeves, Chair of the Commission. (Watch the public meeting.)

Today’s amendments will improve federal sentencing by:

• encouraging courts to take an individualized approach to the imposition and management of supervised release;
• addressing the harms of “fake pills” containing fentanyl while ensuring sentences better reflect a defendant’s function in drug trafficking;
• providing appropriate penalties for firearms offenses that involve machinegun conversion devices;
• simplifying the “three-step” approach that courts currently use when applying the guidelines; and
• promoting consistent guideline application by resolving certain circuit conflicts.

The amendments issued by the Commission today will be posted HERE and will be delivered to Congress by May 1, 2025. If Congress does not act to disapprove the changes, they will go into effect on November 1, 2025.

The linked "Amendments to the Sentencing Guidelines (Preliminary)" runs 686 pages(!), though I think "only" the first 80 or so pages deal with the bulk of the substantive amendment while the other 600 set forth the burial right for departures throughout the guideline manual.

New (and new look) issue of the Federal Sentencing Reporter covers "Booker at Twenty"

For a host of reasons, I am very pleased and very excited to report on the online publication of the latest issue of the Federal Sentencing Reporter titled "Booker at Twenty."  This blog got started just a month before the Supreme Court's landmark 2004 Blakely ruling which dramatically disrupted state and federal sentencing practices and led to the remarkable dueling, dual 2005 Booker ruling(s) making the federal sentencing guidelines "effectively advisory."  I sometimes find it hard to believe that the SCOTUS-invented Booker federal sentencing regime has remained in place for two decades and also that so much and so little has changed regarding federal sentencing law, policy and practice over this period.  

A host of substantive, procedural and structural stories concerning Booker are astutely covered in a series of articles and related materials appearing in this new FSR issue.  The FSR editors feel especially fortunate that the current Chair of the US Sentencing Commission, Judge Carlton Reeves, co-authored an article with Counsel to the Chair, Con Reynolds, for this issue under the title "Meeting the Demand for Democracy in Sentencing."   That article is just one of many in the issue reflecting on Booker then and now.  And the issue begins with an introductory essay authored by me and Steve Chanenson titled "Two Decades Later."

Excitingly, the new publisher of FSR, Duke University Press, has made all the contents for this issue freely available for download for the next few months.  I highly encourage all sentencing fans to check out all the terrific articles and materials in this new (and new look) FSR.

As the cover posted here reveals, the Federal Sentencing Reporter has new look thanks to great work by folks at Duke University Press.  The contents of FSR, substantively and visually, have not significantly changed as we start publication of the journal's 37th(!) volume.  But savvy readers may see that FSR is now going to produce four (longer) issues per volume, and also that we have had the great forture to add Jonathan Wroblewski as a primary FSR editor.   (Jonathan also authored a must-read piece for this issue titled "The King Is Dead, Long Live the King: Booker v. United States and Its Place in the History of Federal Sentencing Law and Policy.")

Speaking for all the FSR editors, I am extremely grateful to everyone involved with FSR, past and present, and I sincerely hope everyone will check out the new (look) issue and share my optimistic views about FSR's future.

"Kennedy v. Louisiana and the Future of the Eighth Amendment"

The title of this post is the title of this article just posted to SSRN and authored by Alexandra L. Klein.  Here is its abstract:

In 2023, Florida passed a law permitting the imposition of the death penalty for the rape of a child under twelve. Tennessee enacted a similar law in 2024.  These laws conflict with Kennedy v. Louisiana, a 2008 decision in which the Supreme Court held that imposing the death penalty for the rape of a child violated the Eighth Amendment’s Cruel and Unusual Punishments Clause because it was inconsistent with the evolving standards of decency.  Legislators in Florida and Tennessee have expressed their hope that the Supreme Court will overrule Kennedy v. Louisiana.  These laws, which resemble state attempts to undo abortion protections through legislation, are not just death penalty politics. Scholars have warned that the Court’s growing reliance on original meaning, history, and tradition may undo extant Eighth Amendment protections.  States have filed amicus briefs asking the Court to reject Eighth Amendment precedent.  More recently, in City of Grants Pass v. Johnson, the Court described the Eighth Amendment in narrow, historically focused terms, signaling that further alterations to the Eighth Amendment are coming.

This Article addresses the potential for overruling Kennedy v. Louisiana and what that may mean for the future of the Eighth Amendment’s Cruel and Unusual Punishments Clause.  While Kennedy is settled law, the Court’s current approach to constitutional questions and recent Eighth Amendment jurisprudence demonstrate that constitutional protections that were assumed to be settled are now at risk, and the Eighth Amendment is in jeopardy.  The Supreme Court’s recent decision in Grants Pass demonstrates that the Court is currently “stealth overruling” its Eighth Amendment jurisprudence.  The Court is likely to continue this project because of changes to its membership, its new approach to stare decisis, and legislative opportunism.  This Article contributes to recent academic literature that addresses the future of the Eighth Amendment by analyzing how new state laws expanding capital offenses to include the rape of a child may undermine precedent through the Court’s reliance on “democratic deliberation” narratives, as described in scholarship by Professors Melissa Murray and Katherine Shaw that addresses the aftermath of Dobbs v. Jackson Women’s Health Organization.

This Article offers two possible future directions for Eighth Amendment jurisprudence: “devolving” standards of decency — in which states can create a national consensus to undo constitutional protections — or, more likely, a restrictive historical approach.  This Article concludes by discussing how these changes threaten the stability of Eighth Amendment jurisprudence and explaining the risks of legislative and judicial expansion of the death penalty after decades of judicial rulings that attempted to narrow it.  It may be tempting to dismiss the consequences of overruling Kennedy — people convicted of sexually assaulting children are targets of universal revulsion.  But changing constitutional and legal standards because of outrage at criminal conduct weakens vital constitutional protections against cruel and unusual punishment.

Reviewing Louisiana's new (algorithmic) approach to parole

A helpdul colleague made sure I saw this new ProPublica piece looking at Louisiana's new parole law and practices. I would recommend the lengthy piece in full, with its themes previews by this headline: "An Algorithm Deemed This Nearly Blind 70-Year-Old Prisoner a “Moderate Risk.” Now He’s No Longer Eligible for Parole." Here are excerpts:

A computerized scoring system adopted by the state Department of Public Safety and Corrections had deemed [Calvin Alexander,] the nearly blind 70-year-old, who uses a wheelchair, a moderate risk of reoffending, should he be released.  And under a new law, that meant he and thousands of other prisoners with moderate or high risk ratings cannot plead their cases before the board. According to the department of corrections, about 13,000 people — nearly half the state’s prison population — have such risk ratings, although not all of them are eligible for parole....

The law that changed Alexander’s prospects is part of a series of legislation passed by Louisiana Republicans last year reflecting Gov. Jeff Landry’s tough-on-crime agenda to make it more difficult for prisoners to be released.  While campaigning for governor, Landry, a former police officer and sheriff’s deputy who served as Louisiana attorney general until 2024, championed a crackdown on rewarding well-behaved prisoners with parole.  Landry said early release, which until now has been typically assumed when judges hand down sentences, is a slap in the face to crime victims....

The Legislature eliminated parole for nearly everyone imprisoned for crimes committed after Aug. 1, making Louisiana the 17th state in a half-century to abolish parole altogether and the first in 24 years to do so.  For the vast majority of prisoners who were already behind bars, like Alexander, another law put an algorithm in charge of determining whether they have a shot at early release; only prisoners rated low risk qualify for parole.

That decision makes Louisiana the only state to use risk scores to automatically rule out large portions of a prison population from being considered for parole, according to seven national criminal justice experts.  That was not how the tool, known as TIGER, an acronym for Targeted Interventions to Greater Enhance Re-entry, was intended to be used. Developed as a rehabilitative measure about a decade ago, it was supposed to help prison officials determine what types of classes or counseling someone might need to prevent them from landing back behind bars — not be used as a punitive tool to keep them there, said one of its creators.

US Sentencing Commission creates two new and notable advisory groups

As detailed in this press release, the "United States Sentencing Commission announced this week the formation of a Sentence Impact Advisory Group (SIAG) and an ad hoc Research and Data Practices Advisory Group (RDPAG) with the objectives of strengthening, modernizing, and expanding the scope of expert voices called upon in the Commission’s work."  This page on the USSC's website details the four existing advisory groups and their purposes, and it also explains the purposes of the new groups in this way:

The purpose of the RDPAG is— (1) to assist the Commission in carrying out its statutory responsibilities under 28 U.S.C. §§ 991(b) and 995(a)(12)–(16); (2) to study the best practices of other government agencies and nongovernmental organizations (including those that perform tasks or provide services not related to criminal justice) relating to the collection, maintenance, use, analysis, and dissemination of data relevant to the mission of such agencies and organizations, and the development and execution of research agendas; (3) to report and make recommendations on how the Commission may incorporate any best practice to more effectively carry out its statutory duties and responsibilities under 28 U.S.C. §§ 991(b) and 995(a)(12)–(16), and fulfill its unique role as a clearinghouse for federal sentencing statistics and practices; and (4) to perform any other related functions as the Commission requests....

The purpose of the SIAG is— (1) to assist the Commission in carrying out its statutory responsibilities under 28 U.S.C. § 994(o); (2) to provide to the Commission its views on the Commission’s activities and work, including proposed priorities and amendments, as they relate to sentenced individuals; (3) to disseminate information regarding federal sentencing issues to other sentenced individuals, families of sentenced individuals, and advocacy groups, as appropriate; (4) to provide to the Commission its views on how the Commission may better incorporate into its work the perspectives of individuals affected by federal sentences; (5) to assist the Commission in determining how it can best fulfill its duty under 28 U.S.C. § 994(s) to “give due consideration to any petition filed by a defendant requesting modification of the guidelines utilized in the sentencing of such defendant, on the basis of changed circumstances unrelated to the defendant”; and (6) to perform any other related functions as the Commission requests.

And here is more from the press release about these new groups:

Both groups will serve in an advisory capacity and will not have voting or policymaking authority. The deadline to apply is June 6, 2025.

• How do I apply to SIAG?   
• How do I apply to RDPAG?

"Race, the Academy, and The Constitution of the War on Drugs"

The title of this post is the title of this article/book review authored by Jeffrey Bellin and I. Bennett Capers and recently posted to SSRN. Here is its abstract:

The war on drugs is widely viewed as a policy failure. Despite massive government intrusions on personal liberty, drug addiction, overdoses, and drug-related violence have only increased since the war was declared in 1971.  David Pozen’s new book, The Constitution of the War on Drugs, reveals a constitutional failure as well.  Pozen chronicles a host of constitutional arguments that American litigants deployed to protect a “right” to use drugs with surprising, if fleeting, success.  Pozen asks what might have been, exploring why the courts backtracked and effectively removed the Constitution as a meaningful obstacle to drug prohibitions.

This Review highlights, supplements, and critiques Pozen’s important contribution to our understanding of the war on drugs.  We begin with a look in the mirror, acknowledging the legal academy’s own role in enabling the drug war.  Next, we introduce alternate explanations for the judicial passivity that Pozen criticizes.  Chief among these is race-making: the drug war helped its proponents shape the evolving meaning of race.

We also challenge Pozen’s nuanced explanations for judicial resistance to substantive constitutional challenges.  The constitutional terrain where litigants most frequently challenged the drug war was procedural: the Fourth Amendment.  And in those battles, the Supreme Court proved to be an eager drug warrior, not an ambivalent conscript.  The same pattern repeats itself throughout federal and state courts and across the broader “war on crime.”  Our critiques do not take away from Pozen’s contribution — the unearthing of a forgotten history of early battles in the drug war where litigants and judges briefly pushed back on the now widely accepted notion that drug use and possession could be criminalized.  But we situate his findings within a broad backdrop of race, crime, and, above all, the judiciary’s eagerness to just say “yes” to the war on drugs.

Florida completes its third execution in 2025

As reported in this AP article, a "Florida man convicted of killing a Miami Herald employee who was abducted on her lunch break was executed Tuesday evening." Here is more:

Michael Tanzi was pronounced dead at 6:12 p.m. following a three-drug injection at Florida State Prison for the April 2000 strangling of Janet Acosta, a production worker at the South Florida paper. The victim was attacked in her van, beaten, robbed, driven to the Florida Keys and then strangled before her body was left on an island.

In a final statement, his voice barely audible, Tanzi said, “I want to apologize to the family” and then recited a verse from the Bible before the drugs began flowing....

He was the third person executed in Florida this year.  Another lethal injection is scheduled May 1 under death warrants signed by Gov. Ron DeSantis.

After the execution, Acosta’s family members expressed relief that the ordeal was finally over. “It’s done. Basically, justice for Janet happened,” said her sister, Julie Andrew, who witnessed the execution. ”My heart felt lighter and I can breathe again.”...

Court records show Acosta was on a break on April 25, 2000, when she was attacked.  She was reading a book in her van when Tanzi approached, asked for a cigarette, and began punching her in the face, the records state.... “He drove to an isolated area in Cudjoe Key, told her he was going to kill her, and began to strangle her,” according to a summary by the state Commission on Capital Cases.  “He stopped to place duct tape over her mouth, nose and eyes in an attempt to quiet her and then strangled her.”

Acosta’s friends and co-workers reported her missing after she failed to return from her break.  That led police to her van, which Tanzi drove to Key West.  Police said Tanzi confessed to the crime and showed investigators where he had left Acosta’s body on Cudjoe Key, more than 140 miles (225 kilometers) southwest of Miami....

Tanzi was convicted of first-degree murder, carjacking, kidnapping and armed robbery, drawing a 12-0 jury recommendation for the death penalty.  All of his subsequent appeals were unsuccessful, including a late request for a stay of execution rejected Tuesday afternoon by the U.S. Supreme Court.  The Florida Supreme Court also recently rejected his claim he shouldn’t be executed because he was “morbidly obese” and had sciatica, raising the risk of unconstitutional levels of pain.

Can and should BigLaw firms cutting deals with Prez Trump meet pro bono commitments through First Step Act work?

The question in the title of this post is prompted by this new Bloomberg Law podcast titled "Trump Gets Millions in Pro Bono Work, But Details Still Fuzzy."  Here is the set up to the discussion:

Law firms are striking deals with President Trump to avoid getting hit with punitive executive orders, pledging hundreds of millions of dollars combined in pro bono legal work....  The details of how these deals will work in practice are scant to nonexistent.  How will the legal work be tracked?  What qualifies as a conservative client?  Can the White House reject certain clients as not conservative enough?  And does this mean these firms will now turn away liberal-leaning pro bono clients?

The emphasis throughout the podcast is how much uncertainty and ambiguity surrounds the commitments by various BigLaw firms to dedicate the equivalent of tens of millions in pro bono legal services during Prez Trump's time in office.  Notably, though, the basic substantive focus of the various pro bono pledges have been specified: eg, Paul Weiss ("causes including assisting our Nation’s veterans, fairness in the justice system, and combating anti-Semitism; and other similar initiatives"); Skadden ("Assisting Veterans and other Public Servants...; ensuring fairness in our Justice System; and combatting Antisemitism"); Willkie Farr (Assisting Veterans and other Public Servants ...; Ensuring fairness in our Justice System; and Combatting Antisemitism"). 

The reference to pro bono work focused on "ensuring fairness in our Justice System" drives my thinking that these firms and other BigLaw firms ought to give particular pro bono resources and attention to advancing the implementation of the First Step Act.  After all, Prez Trump advanced and signed the First Step Act into law back in 2018, and so pro bono work seeking to implement that law fully would surely qualify, in the view of this Administration, as efforts to advance fairness in our federal criminal justice system. 

And there is no shortage of First Step Act implementation work still needing to be done that BigLaw firms could seek to help with in a variety of ways.  In her confirmation hearings, AG Bondi acknowledged widespread problems with the Bureau of Prisons and failures to "follow through on the promise of the First Step Act."  Additional pro bono advocacy and litigation efforts supported by BigLaw to advance BOP reforms might be of great value to enhance DOJ "follow through."  There is already considerable litigation concerning federal prisoners being denied earned-time credits under the First Step Act, including an on-going ACLU's class-action lawsuit.  And thousands of elderly federal prisoners, as well as tens of thousands of low-risk federal prisoners, might well have viable arguments for a sentence modification under the enhanced "compassionate release" procedures and rules created by First Step Act. 

Beyond specific issues realted to the First Step Act, one could argue that all pro bono efforts to help prisoners with legal claims who cannot afford private counsel should qualify as advancing "fairness" in our legal system.  After all, once direct appeals are complete, prisoners no longer have a right to an appointed attormey, but wealthy prisoners can and ofter do hire private counsel to continue pressing legal claims.  It surely is unfair if only those few prisoners who can afford lawyers can get legal help with various post-convictions claims.  (I regularly receive letters, emails and calls from federal prisoners and their families seeking pro bono help with their cases; I would love to be able to refer these inquiries to a BigLaw firm working on "ensuring fairness" in our justice system.)

Ever eager to turn BigLaw lemons into "fairness" lemonaide, I sincerely hope the firms making pro bono commitments will significantly invest in First Step Act work and broader criminal justice reform efforts.  Prez Trump's robust and wide-ranging clemency grants in just his first few months in office demonstrates he sees many, many, many individuals being "treated very unfairly" by the federal criminal justice system.  There are no shortage people who claim that the justice system has treated them unfairly, and it would be great to see BigLaw firms making big pro bono commitments in this arena.

Bureau of Justice Statistics releases "Jail Inmates in 2023 - Statistical Tables"

Via email, I learned this morning that the Bureau of Justice Statistics has now published new data about jail populations as of 2023 under the exciting title "Jail Inmates in 2023 - Statistical Tables."  The new data is available now only in the form of this web-based report, and here are its listed "Introduction" and "Highlights":

At midyear 2023, local jails held 664,200 persons in custody, similar to midyear 2022 (663,100) and marking a 9% decrease in the inmate population compared to the 731,200 10 years earlier.  The rate of incarceration stood at 198 persons per 100,000 U.S. residents, a 14% decline from 231 jail inmates per 100,000 a decade ago.  From July 2022 to June 2023, local jails nationwide recorded 7.6 million admissions.  While this represented a 4% increase from the 7.3 million admissions the year before, annual admissions were 35% lower than a decade ago when admissions totaled 11.7 million.

• At midyear 2023, local jails held 664,200 persons in custody, similar to midyear 2022 (663,100) and marking a 9% decrease in the inmate population compared to a decade ago (731,200).

• Between 2020 and 2023, the number of adults in local jails increased by 21%, while the population of individuals age 65 and over grew disproportionately by 78%.

• There were 198 persons incarcerated in jail per 100,000 U.S. residents at midyear 2023, down from 231 inmates per 100,000 at midyear 2013.

• From July 2022 to June 2023, people admitted to local jails spent an average of 32 days in custody before release, 7 days longer compared to 8 years prior (25 days).

• The number of inmates held in local jails for federal and state prison authorities declined by 32,600 (down 26%) from 2013 to 2023.

• The number of persons held in local jails for U.S. Immigration and Customs Enforcement decreased by 60% from 2013 to 2023.

• At midyear 2023, there were a total of 915,800 jail beds in the United States and 73% of the beds were occupied.

• After a 12% increase from 2015 to 2019, the number of staff employed at local jails decreased to 211,700 by midyear 2023, falling below the 2015 level (213,000).

"Pardoning Corporations"

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

Though the Pardon Clause could be interpreted to include or exclude corporate offenses, overlooked history suggests the broader interpretation is the more plausible one.  The Clause codified a power that had existed for centuries in England. And corporations were often pardoned at common law — including the Massachusetts Bay Company.  This tradition lasted for hundreds of years, and it is the backdrop against which the Framers drafted the Pardon Clause. Even following the Founding, people continued to understand that the pardon power stretched to corporations. Since that time, however, institutional memory has faded.

The President could condition forgiveness on corporate compliance programs or on donations to his political campaign. He could offer pardons to foreign companies to sweeten relations with other countries.  He could effectively abolish corporate criminal liability during his terms, at least at the federal level, even for prosecutions initiated by independent agencies. He could pardon his own companies to protect them from prosecution.  Or he might even pardon companies that bribed him.  Given the sweeping pardon power in Article II, all these decisions fall within the President’s discretion.  He does not even need to wait for a company to apply.

Some of these consequences are startling, but Congress can limit the pardon power’s effects in two ways.  First, Congress can refuse to appropriate refunds of pardoned fines.  At the time of writing, Congress has not appropriated such refunds for individuals or companies. That decision denies people reprieve from the most common, and often most consequential, punishments imposed on companies.  Second, Congress can repeal statutes that impose corporate criminal liability and replace them with unpardonable civil infractions, depriving the President of offenses to pardon.

Some state constitutions might also include a power to pardon companies.  Though this account is more tentative, some attorneys could be more effective advocates if they encouraged their corporate clients to apply for pardons. Federal juries convict around 100 companies per year; states impose the rest of the corporate criminal liability.  In most states, there is little authority one way or the other, which creates opportunities for good lawyering.  This is important because, even if the President never pardons a company again, some state governments might consider doing so.  Alaska’s Governor already did, and that pardon is unlikely to be alone forever.

US Sentencing Commission has (possible) vote scheduled on (big?) proposed guideline amendments

As detailed on this webpage, federal sentencing fans need to mark their calendars for the afternoon of April 11, 2025.  In addition to watching The Masters, I now expect to be multitasking because the US Sentencing Commission has noticed its next public meeting for Friday, April 11, 2025 at 1:30 pm.  This public meeting could be a big moment in the 2024-2025 guidelines amendment cycle for the Commission: on the meeting agenda is "Possible Vote to Promulgate Proposed Amendments."

Interestingly, last year's April public meeting notice, as seen here, listed "Vote to Promulgate Proposed Amendments" an as agenda item.  Though I might be reading too much into an extra word, that this year's meeting agenda states "Possible Vote" has me wondering if there is a real possibility that the Commission will not advance any proposed guideline amendments later this week. 

The Commission has had an extremely ambitious amendment cycle, with two sets of major guideline amendment proposals (basics here and here) and two extensive hearings on these guideline amendment proposals (basics here and here).  Though some of this cycle's guideline amendment proposals focus on small issues, other proposals under consideration could impact nearly every sentencing or huge portions of the federal caseload (eg, drug cases).  Any big amendments from the USSC this cycle could be a very big deal.

Or not, if no amendments are voted forward.  I have been wondering whether any clear "amendment consensus" had emerged from the submitted comments and public hearing discussions on all the proposed amendments.  Moreover, as noted here a few months ago, the Commission is down to only five voting members and so there now needs to be near unanimity on proposed amendments for them to advance.

I will certainly be tuning in, but I really do not have any firm predictions about just what to expect (either for the USSC's work or The Masters).

"Rogue Prosecutor Panic"

The title of this post is the title of this new paper just posted to SSRN and authored by Michael L. Smith. Here is its abstract:

Discussions of criminal law, enforcement, and reform are frequently messy and misleading.  Anecdotes distract from systematic abuse, and perceptions of crime frequently win out over existing trends.  This essay identifies Zack Smith and Charles Stimson’s book, Rogue Prosecutors: How Radical Soros Lawyers are Destroying America’s Communities, as an example of this shoddy discourse.  Smith and Stimson’s claim that “Radical Soros Lawyers” are being mobilized to destructive ends crumbles under minimal scrutiny, and I identify several core defects throughout their narrative, including a failure to demonstrate a truly unified scheme of ideology and funding amongst the prosecutors they identify, baseless assumptions that increases in crime are attributable to prosecutorial reform, and their ignorance and downplaying of the context in which prosecutorial reform exists.  I close with some thoughts on how to improve discussions of prosecutorial reform to avoid the alarmism, flawed assumptions, and general ignorance that perpetuates existing discourse.

Supreme Court grants cert on two constitutional criminal cases regarding restitituion and right to counsel

The Supreme Court this morning issued this short order list that still has some interesting elements for criminal justice fans.  Specifically, the Court granted cert on two cases, both of which involve issues of constitutional criminal procedure.  Here are the basics on the two cases now on the Supreme Court's docket to be argued next Term from SCOTUSblog postings:

Ellingburg v. United States

Issue: Whether criminal restitution under the Mandatory Victim Restitution Act is penal for purposes of the Constitution's ex post facto clause.

Villarreal v. Texas

Issue: Whether a trial court abridges a defendant’s Sixth Amendment right to counsel by prohibiting the defendant and his counsel from discussing the defendant’s testimony during an overnight recess.

Though I have not yet taken a close look at the particulars of either of these cases, both seem to involve relatively small issues that seem unlikley to result in big opinions with a big impact.  That said, as I have suggested in various musings about the current Court's criminal justice work (examples here and here), if the Justices are inclined to bring some (new?) originalist approaches to the ex post facto clause and the Sixth Amendment, these cases could perhaps become "sleepers."  I doubt they will, but for now I am inclined to just celebrate the Court for taking up some new criminal cases.   

How many federal capital prosecutions would there be if AG really pursued the death penalty "whenever possible"?

The question in the title of this post is prompted by this new article discussing statements today by Attorney General Pam Bondi.  The piece is headlined "AG Pam Bondi Says Trump Is Going to Seek the Death Penalty ‘Whenever Possible’ — Including for Luigi Mangione."  Here is how the piece states:

Attorney General Pam Bondi doubled down on her desire to seek the death penalty for accused CEO killer Luigi Mangione on Sunday, telling Fox News that President Donald Trump’s administration is going to seek the death penalty “whenever possible.”

The AG stopped by Fox News Sunday this weekend, where host Shannon Bream asked her what she thought about Politico saying that using capital punishment against 26-year-old Mangione is “how Trump loses Gen Z.”

“The president’s directive was very clear: we are to seek the death penalty, when possible.  It hasn’t been done in four years. I was a capital prosecutor, I tried death penalty cases throughout my career.  If there was ever a death case, this is one,” Bondi said.  “This guy is charged with hunting down a CEO, a father of two, a married man, hunting him down and executing him.  I feel like these young people have lost their way.  I was receiving death threats for seeking the death penalty on someone who was charged with an execution of a CEO.”

“We’re going to continue to do the right thing, we’re not going to be deterred by political motives,” she continued. “I’ve seen a protester walking down the street here — ‘Free Luigi’ — this guy’s charged with a violent crime and we’re going to seek the death penalty whenever possible.”

As I suggested in this post last week, there seems to be a disconnect between the Trump Administration's bold statements and modest actions on capital prosecutions to date.  After 12 weeks in power, the Mangione case represents the only federal capital prosecution announced nationwide during the Trump Administration.  In sharp contrast, for decades, Ohio averaged nearly two new capital indictment each and every week (specifically, as detailed in an ABA report on Ohio's death penalty, "[b]etween 1981 and 2005, there were a total of 2,768 capital indictments" in the Buckeye State).  To keep the comparison federal, data from a 2000 DOJ study detailed that "[f]rom 1995 to 2000, the Attorney General authorized United States Attorneys to seek the death penalty for a total of 159 defendants," which averages to more than two new capital indictment each and every month. 

There is an obvious inconsistency between asserting that the feds are now "going to seek the death penalty whenever possible," but then in fact almost never doing so.  One might reasonably wonder if the Trump Administration really could or should pursue or even consider federal capital charges in the many hundreds of murders that take place across the country every month, especially given that all of these violent offenses will be investigated at the local level.  But, of course, the federal criminal justice system finds the resources to bring many thousands of federal drug, property and public order charges every month even though nearly all those offenses can be addressed at the local level.  If violent crime, and especially capital murder, really were to be a federal prosecutorial priority in the Trump Administration, I would expect to see many more, perhaps many dozens more, federal capital charges being brought each and every month. 

It is surely is easier to talk about pursuing federal capital prosecutions "whenever possible," than to actually do so.  And yet AG Bondi's statement still has me thinking about what it would really look like if the feds really started "to seek the death penalty whenever possible."   The Trump Administration has, in various ways, shown an eagerness to disregard various legal norms and customs.  But the norm and custom of very limited pursuit of the death penlaty seems, at least so far, to be still intact.