Sentencing Law and Policy

"Tonry's Blueprint for the Comparative Study of Sentencing Law and Policy"

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

This essay explores Michael Tonry's treatment of sentencing law and policy within the U.S. as an inherently comparative project.  The essay draws from Tonry's ''early period'' in comparative sentencing from the late 1970s to the middle 1990s, when his writing was largely U.S.-centric, focued on quickly changing conditions in dozens of states and the federal system.  Tonry classified the several models of ''sentencing reform'' that were being tried across the country, drew contrasts in the legal architectures of the new systems, collected data and evaluation research for as many states as possible, and treated the reform-active states as ''laboratories'' whose experiments could be evaluated for the benefit of other jurisdictions.  The essay examines the importance of this body of work and illustrates the impact it has had on research and policy communities over several decades.  In addition, the essay suggests that ''Tonry's blueprint'' holds great value for future researchers in comparative criminal justice policy.

Noting a notable economic cost from white-collar pardoning

I have flagged in recent posts here and here and here that persons convicted of various white-collar offenses are now those most likely to be getting the benefit of Prez Trump's clemency pen.  And via this new Washington Post piece, headlined "Fired DOJ attorney says on TikTok that Trump pardons cost $1 billion," I see that former DOJ Pardon Attorney Liz Oyer is putting a notable pricetag on recent pardon practices.  Here are excerpts:

Liz Oyer, the Justice Department’s recently fired pardon attorney, made a staggering claim on social media this week: President Donald Trump’s pardons of people convicted of white-collar crimes have cost Americans $1 billion.

She arrived at the number by adding up all the money that people who were pardoned allegedly owed in restitution, based on how much they were convicted of stealing.  Some pardon recipients had not been sentenced, which means that a judge had not yet ruled on prosecutors’ calculations of what they owed back to their victims.  At least one pardon recipient had already started paying restitution and could attempt to get that money back.

Oyer, who has been outspoken against the Trump administration since her ouster, told The Washington Post that the $1 billion figure highlights the unusually high number of Republican allies convicted of fraud and pardoned by Trump before they served their sentences — a significant break from the traditional and often protracted pardon application process....

Much of the $1 billion Oyer cites comes from Trump’s pardon of Trevor Milton, the founder of an electric-truck company who was convicted of fraud in 2023.  Milton had been sentenced to four years in prison.  A judge had not yet determined the restitution he should pay; federal prosecutors told the judge in March that they believed Milton owed more than $680 million to defrauded shareholders, according to federal court records.

Trump’s pardons also wiped out a $100 million fine against a cryptocurrency exchange called HDR Global Trading Limited (BitMEX).  The company pleaded guilty to violating anti-money-laundering laws to boost revenue.  Trump also pardoned four company executives who pleaded guilty to financial crimes....

In one of her TikTok videos, Oyer said Trump’s pardon last week of Michele Fiore — a Republican politician and activist in Nevada — cost Americans $70,000.  Fiore was convicted last year of taking money meant to honor slain police officers and using it for plastic surgery, rent and her daughter’s wedding.

Fiore had not yet been sentenced when she received Trump’s pardon, but Oyer is assuming that a judge would have determined she owed at least $70,000 in restitution since that’s what she was convicted of stealing from Nevadans who donated to the fundraising campaign for the police officers.

Florida completes its fourth execution in 2025

As reported in this AP piece, an "Army combat veteran whose Gulf War experience triggered severe mental problems was executed Thursday evening in Florida for the 1998 shotgun slayings of his girlfriend and her three young children." Here is more:

Jeffrey Hutchinson, 62, was pronounced dead at 8:15 p.m. following a lethal injection at Florida State Prison near Starke. He was the fourth person executed this year in the state under death warrants signed by Gov. Ron DeSantis, with a fifth execution set for May 15.... The execution was carried out soon after the U.S. Supreme Court rejected a final appeal without comment.

Hutchinson had long claimed that he was innocent and that two unknown assailants perpetrated the killings under a U.S. government conspiracy aimed at silencing his activism on claims including Gulf War illnesses involving veterans. Hutchinson served eight years in the Army, part of it as an elite Ranger. Court records, however, showed that on the night of the killings in Crestview, Hutchinson argued with his girlfriend, 32-year-old Renee Flaherty, then packed his clothes and guns into a truck. Hutchinson went to a bar and drank some beer, telling staff there that Flaherty was angry with him before leaving abruptly.

A short time later, a male caller told a 911 operator, “I just shot my family” from the house Hutchinson and Flaherty shared with the three children: 9-year-old Geoffrey, 7-year-old Amanda, and 4-year-old Logan. All were killed with a 12-gauge shotgun that was found on a kitchen counter. Hutchinson was located by police in the garage with a phone still connected to the 911 center and gunshot residue on his hands.

Darran Johnson, the brother of Renee Flaherty, said after the execution that justice was done but the family’s pain will never end. “Not a day goes by that we don’t think about the loved ones that were taken from us,” Johnson said....

Hutchinson filed numerous unsuccessful appeals, many focused on mental health problems linked to his Army service. In late April his lawyers sought to delay his execution by claiming he was insane and therefore could not be put to death. Bradford County Circuit Judge James Colaw rejected that argument in an April 27 order. “This Court finds that Mr. Hutchinson’s purported delusion is demonstrably false. Jeffrey Hutchinson does not lack the mental capacity to understand the reason for the pending execution,” the judge wrote.

In their court filings, Hutchinson’s lawyers said he suffered from Gulf War Illness — a series of health problems stemming from the 1990-1991 war in Iraq — as well as post-traumatic stress disorder and paranoia related to his claim that he was targeted by government surveillance....

So far this year, 15 people have been put to death in the U.S. including Hutchinson.

With six serious execution dates in six states scheduled for the next couple months, the US is well on pace for the most executions in 2025 than in any year in more than a decade.

HIghlighting again the need for better crime data (and national leadership on the issue)

In this post a couple of weeks ago, I spotlighted some encouraging homicide data from a number of big cities. But I got access to this data only via a patchwork of (inconsistent) city-level police reports. Helping the crime data cause recently is the great new Real-Time Crime Index (RTCI), but it exists only thanks to a private grant and it is limited by what data gets collected at the local level.

Noting that "national crime data fall short of what the country needs to sufficiently understand, control, and prevent crime," the Council on Criminal Justice Crime Trends Working Group produced a report last year outlining a roadmap for improvement.  (See post here.)  Building off CCJ's work, Kaitlin Owens has produced for the America First Policy Instititue this useful new report titled "Modernizing National Crime Statistics."  I recommend the full report, and here are its "Topline Points":

Criminal justice data is currently impaired by serious gaps and quality control issues. This compromises its capacity to inform decisions to improve public safety.

The America First approach to solving this problem emphasizes transparency, efficiency, and local control over crime data, while preventing partisan influence and ensuring taxpayer dollars are used efficiently.

The Bureau of Justice Statistics (BJS) should publish official U.S. crime reports, ensuring a more transparent and standardized approach.

Federal and state partnerships should enhance funding, staffing, and the adoption of modern record-keeping systems to ensure smaller law enforcement agencies can report accurate data.

BJS should revamp its website for greater accessibility and should publish monthly national snapshots and an annual crime report covering major crimes, white-collar offenses, and emerging threats.  

DPIC releases new report on "Immature Minds in a ​'Maturing Society': Roper v. Simmons at 20"

The Death Penalty Information Center yesterday released this big new report about capital sentencing and execution trends for young people over the last two decades, with a particular attention focused on those aged 18 to 20.  (An overview of the report is available on this DPIC webpage.)  The full 75-page report, titled "Immature Minds in a ​'Maturing Society': Roper v. Simmons at 20," covers lots of ground, and here are parts of the report's "Executive Summary":

New death sentences for 18- to 20-year-olds have diminished both in absolute terms and as a percentage of all new death sentences over the last twenty years. During the past five years, juries have sentenced just five such individuals to death.

Seventy percent of 18- to 20-year-olds currently on death row were sentenced before Roper was decided.  Almost a third of 18- to 20-year-olds sentenced after Roper have been removed from death row because of judicial or executive action....

Since the Roper decision, more than three-quarters of the death sentences given to 18- to 20-year-olds have been imposed on people of color.  This is higher than the rate found in older defendants: half of the death sentences imposed on adults 21 and older were imposed on people of color during this same time frame.

California is an outlier. In the twenty years since Roper, nine out of ten death sentences given to 18- to 20-year-olds were imposed on people of color....

The average age at the time of crime for people sentenced to death is 34.3 for white people and 29.7 for people of color, a nearly five-year gap; the gap is as large as 15 years in some individual states.

Texas alone accounts for half of all executions of 18- to 20-year-olds since Roper — 80 percent of whom were people of color. 

US Commission on Civil Rights releases updated report on "Enforcing Religious Freedom in Prisons"

As detailed in this press release, earlier this month the U.S. Commission on Civil Rights releases this new report, "Enforcing Religious Freedom in Prisons," which serves as an update to the Commission’s 2008 report of the same name.  As explained here, the "purpose of this update is to evaluate how incarcerated individuals can exercise their religious freedoms, as well as assess how the religious composition of prisoners and court interpretations of RLUIPA claims may have changed since 2007."  The final paragraph of this report's executive summary provide an additional overview of its coverage:

This report is broken down into three chapters. Chapter 1 provides an overview of the legal foundation of prisoners’ religious exercise rights, religion’s role and practice in prison, and the changing religious landscape of the United States.  The chapter ends with an introduction to the procedures prisons and jails use to address prisoners’ grievances.  Chapter 2 provides an analysis of the information the Commission collected through formal interrogatory and document requests from a sample of 20 carceral facilities around the country.  The sample includes eight federal institutions, 10 state institutions, and two county jails.  However, it is important to note that two state facilities did not respond to the Commission’s interrogatories and neither of the local jails responded to the Commission’s request.  The lack of response from these institutions demonstrates one of the many barriers researchers encounter in obtaining information about the protection of prisoners’ civil rights.  Chapter 2 also provides a summary of the grievances related to religious discrimination in prisons filed with the Commission.  The chapter closes with a discussion of the impact of COVID-19 and its continuing legacy on prisoners’ ability to exercise their religious liberties.  Chapter 3 concludes the report with an analysis of 843 reported RLUIPA cases decided from 2017-2023, examining trends by religion, judicial circuit, type of accommodation requests, and court dispositions.

Prison Policy Initiative tracking "how the Trump administration is making the criminal legal system worse"

In this post yesterday, I noted that I had not been able to find analyses looking closely at all of the Trump Administration's actions in the criminal justice enforcement and sentencing space over its first 100 days, and I suggested doing so would be challenging because there had been so many dynamics developments in this arena. But today I see that the folks at the Prison Policy Initiative now have this detailed new resource purporting to track "how the Trump administration is making the criminal legal system worse."  The resource is quite extensive, has lots of helpful links, and gets started this way:

The American criminal legal system has always been terrible, but what has happened in recent months is different.  It is in a new kind of crisis.  Since taking office, the Trump administration has taken actions to eviscerate due process and the rule of law, make prison and jail conditions worse, expand the use of extreme sentences and harsh law enforcement tactics, eliminate oversight, undermine solutions that reduce incarceration and make communities safer, and much more.

When examined individually, these actions are troubling, but the true nature of the crisis is only clear when these actions are viewed in their entirety.  On this page, we are tracking the steps that the Trump administration is taking to make the criminal legal system in America harsher, less effective, and even more unfair.

It is important to note, the federal government directly controls only a relatively small slice of the carceral system in America.  So while it can’t set explicit policy that impacts most prisons, jails, and law enforcement, the Trump administration is using its bully pulpit and control over federal spending to coerce state and local governments into making their criminal legal systems bigger and even more brutal.

Additionally, because we’re not experts on immigration and policing, we have intentionally chosen not to list all of the actions by the administration in these areas.  Instead, we have curated a list of organizations and information sources that we recommend you visit if you would like to learn more about immigration and policing.

It is impossible to list everything the administration has done in this regard, but if you believe we have overlooked something that should be included, please let us know.

"Collecting Conditions: A Snapshot of Supervised Release in 2023 in the U.S. District Court for the District of Connecticut "

The title of this post is the title of this new paper authored by multiple folks at Yale Law School and now available via SSRN. Here is its abstract:

In the federal system, judges have authority to sentence individuals to a term of supervised release after they leave prison.  At the time of sentencing, judges decide on the duration of supervision and impose “conditions” intended to rehabilitate, deter criminal conduct, and protect the public.  Probation officers monitor individuals, whose conditions can include submitting to substance testing, completing drug and mental health treatment, obtaining permission to travel, and refraining from contact with people who have felony convictions.  A person who is charged with and found to have violated the conditions of supervised release may be reimprisoned.

Many questions exist about the utility and wisdom of imposing conditions at the time of sentencing. Less information is available about what conditions are imposed on which defendants.  For insight into practices in the U.S. District Court for the District of Connecticut, the Liman Center reviewed and analyzed the judgments entered in 2023 in the cases of 74 defendants, all of whom had been represented by the federal public defender’s office.  In general and with minor variations, judges imposed the same set of conditions on all defendants.

In 2024 and 2025, the U.S. Sentencing Commission called for commentary about supervised release.  In the spring of 2025, we submitted recommendations based on our research.  We proposed that, at sentencing, judges impose only those conditions of supervised release that are mandated by statute.  Thereafter and closer to the time of release, judges could use their authority to modify conditions.  Conditions ought to impose “no greater deprivation of liberty than is reasonably necessary” to achieve congressional purposes.  Further, drawing on empirical research showing success rates among individuals whose supervision ended early, we encouraged judges to revisit the length of supervised release and, when appropriate, terminate it after one year under 18 U.S.C. § 3583(e)(1).

Little change in the federal prison population after first 100 days of Trump Adminstration

I have not been able to find today any new press pieces or other analyses looking closely at what the Trump Administration has done with respect to traditionally criminal justice enforcement and sentencing over its first 100 days.  (Excitingly, the Federal Sentencing Reporter has in the works a special issue focused on an array of criminal justice topics relating to the recent change in federal adminstrations, but that issue will not be published for a number of months.)  Perhaps there has been too many dynamics developments --- including mass and on-going clemencies, a broad death penalty executive order, a new charging, plea, sentencing guidelines issued by the new Attorney General, anda new Director for the Bureau of Prisons --- to effectively summarize what has happened and all the past, present and likley future impacts.  Or perhaps all sorts of other topics are always destined to garner more attention in the media and elsewhere. 

And yet, at the 100 day mark when there seems to be so much turmoil in criminal justice spaces and elsewhere, the federal prison population has proven notable stable.  Specifically, I flagged in this post 100 days ago, that the BOP official total federal prison population was reported to be "155,399 Total Federal Inmates" as of January 16, 2025 (the count gets updated weekly on Thursdays). Today, at this BOP webpage, the Bureau reports "155,751 Total Federal Inmates" as of April 24, 2025.  The increase of 352 federal inmates, roughly 0.2%, is not that far removed from what I see as regular variation in the reported federal population from week to week.  In other words, I think it fair to state that , over the first 100 days of the Trump Administration, the federal prison population appears essentially unchanged.

As I have noted in prior posts, significant changes in federal prison population has been the norm for most of the last four decades.  This chart with BOP historical data shows the federal prison population increasing (often a lot) every year from 1980 to 2013 and then decreasing (often a lot) every year from 2014 to 2020.  Most recently, the federal prison population increased by 17,000 persons during Prez Obama's first term (roughly 8%), and then it declined nearly 20,000 persons during Prez Obama's second term (roughly 9%).  And then the federal prison population decreased by nearly 38,000 persons(!) during Prez Trump's first term (nearly 20%), partially (though not entirely) due to some COVID realities. 

The Biden Administration years produced a fairly modest growth of the federal prison population (less than 2.5%), which really marked a notable new period of relative stability compared to prior recent presidential terms.  So far, this recent pattern of federal prison population stability appears to be persisting into the early months of Prez Trump's second term in office.  But I would not make any certain predictions as to whether this stability will continue in the months and years ahead.  

UPDATE: Intriguingly, the weekly update of the prison population, at this BOP webpage, indictaes a quite notable weekly jump with the the Bureau reporting "156,254 Total Federal Inmates" as of may 1, 2025.  I am not sure why this past week brought such a jump, but it makes me even more inclined to keep a close eye on this metric.

"Defense Lawyers and the Separation of Powers"

The title of this post is the title of this new article now available via SSRN authored by Eric Fish and Chesa Boudin. Here is its abstract:

Debates over the separation of powers in criminal law ignore defense lawyers.  Prosecutors, judges, and legislators are the main focus.  Scholars analyze the distribution of power between these three actors, as well as how they check — or fail to check — each other’s authority. Meanwhile, scholars treat defense lawyers as merely representatives of their clients, not as government actors or policymakers.  But this is an incomplete view.  Modern defense lawyers exercise distinctive powers in the criminal justice system.  They are also largely institutional insiders appointed by the state. One cannot understand the contours of power in an American criminal courthouse without knowing how its indigent defense system works.

This Article brings defense lawyers into the criminal law separation-of-powers debate.  It proposes that we should understand defense counsel as exercising a sui generis “defense power,” distinct from the traditional categories of legislative, judicial, and executive power.  It then uses that more expansive view to develop three arguments: (1) Competent and assertive defense lawyers are necessary to, though not sufficient for, a robust dynamic of checks and balances in the criminal justice system.  Effective defense lawyers help to limit prosecutorial and judicial power.  That, in turn, protects important liberty interests and the rule of law. (2) Defense lawyers’ effectiveness as a check depends, in significant part, on separation of powers questions.  In particular, the political independence of defense lawyers is crucial.  When defense lawyers are captured by other system actors, like judges or county governments, their ability to vigorously defend their clients is compromised. An effective defense power is thus largely contingent on institutional design — e.g. the choice between contract counsel, direct judicial appointment, a public defender’s office, and other models.  (3) Defense lawyers legitimately exercise collective power in the criminal justice system. They do so in a variety of ways — through litigation, work stoppage, vetoing judges, and other strategies.  Such collective action is properly viewed in traditional Madisonian terms.  Defense lawyers pursue their interests, and the interests of their clients, using their leverage within the system to counterbalance other actors.

A little round-up to start the week

A number of articles and commentaries which have caught my eye recently got me to thinking it would be a good time for a little round-up.  So here goes:

From Cato at Liberty, "Orwellian Justice: The Trial Penalty Under Fire"

From Courthouse News Service, "Florida parole practices do not violate juvenile lifers’ rights"

From Forbes, "Second Chances, Stronger Teams: Leadership Lessons From Prison"

From The Hill, "Prison understaffing: A crisis seen by few, felt by prisoners and prison employees"

From The Hill, "Incarcerated women deserve a second chance"

From Law360, "Pardon Me? Why Offers To Secure Clemency Might Be A Scam"

From NBC News, "After Biden commuted federal death row sentences, DAs are weighing state charges"

From the New York Post, "Judge rules prosecutors can seek death penalty against Bryan Kohberger if convicted of Idaho student murders — despite autism diagnosis"

From NPR, "Luigi Mangione's case marks a shift in politics of the death penalty in the U.S."

From The State, "As Dylann Roof seeks new trial, his former lawyer admits making serious errors"

From the Washington Times, "Chances for reduced prison sentences, erased records now law in Maryland"

Notable sentencing opinion discussing the "state of appellate review of district court sentencing"

A kind reader made sure I did not miss a notable recent federal opinion authored by US District Judge Joseph Goodwin US v. Shields, No. 2:21-cr-00268 (SD WVa April 24, 2025) (available for download below). The 13-page opinion is a must-read in full, and this paragraph from the first part of the opinion suggests the value of broad readership:

Today, I resentenced Mr. Shields pursuant to the Fourth Circuit’s mandate. I now write in conjunction with that resentencing to consider the state of appellate review of district court sentencing. It is the duty of the district court to follow appellate court orders in sure fashion and explain their actions and reactions. The public greatly benefits from courts acting in such a manner, clearly communicating what the law is and how it is applied.

I am disinclined to try to summarize what follows, but these paragraphs (with lots of meaty footnotes removed) provide a flavor of the opinion's themes:

Fast forward twenty years, and Justice Scalia’s fears of “havoc on federal district and appellate courts” have come to pass.6 Booker, 543 U.S. at 312–13. District courts, exercising the autonomy restored in Booker, remain subject to the appellate review Booker also promised. Carissa Byrne Hessick & F. Andrew Hessick, Appellate Review of Sentencing Decisions, 60 Ala. L. Rev. 1, 28–36 (2008) (suggesting that Gall, Rita, and Kimbrough put the district and appellate courts on a collision course beyond the ordinary understanding of appellate review).  That appellate review has created its own “Appellate Guidelines” — interpreting the advisory Guidelines and binding on sentencing judges.

In the search for “reasonable” sentences, the appellate courts have also undermined Congress’s intent to standardize sentencing practices.  To some, the “courts of appeals have vociferously fought” Booker.  Alison Siegler, Rebellion: The Courts of Appeals’ Latest Anti-Booker Backlash, 82. U. Chi. L. Rev. 201, 202 (2015). Sometimes that has taken the form of an “inconsistent . . . development of procedural review” and an “even less clearly defined” standard of substantive reasonableness.  Morgan Yates, Note, Truth or Unintended Consequences: Reining in Appellate Court Action in the Absence of a Government Appeal, 82 U. Chi. L. Rev. 1705, 1710 (2015).

Other times the appellate courts seek out procedural snags “when they wish to reverse sentences based on substance, warping the procedural inquiry.” Note, More Than a Formality: The Case for Meaningful Substantive Reasonableness Review, 127 Harv. L. Rev. 951, 961 (2014).  Still, some do not place blame entirely on the circuit courts who must “apply all of these contradictory sentencing goals in every case.”  Craig D. Rust, Note, When “Reasonableness” is not so Reasonable: The Need to Restore Clarity to the Appellate Review of Federal Sentencing Decisions After Rita, Gall, and Kimbrough, 26 Touro L. Rev. 75, 102 (2010).

Without a doubt, Justice Scalia’s fears came true.  The appellate courts — in an effort to enforce Supreme Court sentencing jurisprudence — have developed their own requirements, differently, across the country.

Download Sheilds Opinion on Resentencing (SDWV 2025)

"Confrontation at Sentencing"

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

In modern criminal prosecutions, the determination of guilt is often little more than a formality. It sets the stage for the main event: sentencing.  Sentencing, however, is driven by facts about both the offense and the offender.  Years of imprisonment may hinge on those facts, making it imperative to determine them reliably.  Yet courts routinely reject defendants' requests to employ the Constitution's prescribed methods of ensuring reliability: confrontation and cross-examination.  That practice rests on a simple premise: the Sixth Amendment's Confrontation Clause does not apply to sentencing.

Taking a textual, historical, and structural approach, this Article challenges that premise.  The conventional wisdom lacks a footing in the language of the Sixth Amendment, is not supported by historical practice, and departs from the adversarial truth-finding process at the foundation of American criminal procedure.  Moreover, it seems to have arisen almost entirely by accident.  Properly understood, the Confrontation Clause's protections are not limited to the unusual case where guilt is contested; they exert their influence even on the determination of the proper punishment.

Eleventh Circuit finds unconstitutional, as applied, Alabama law outlawing certain sex offenders from residing with a minor

I just saw a remarkable ruling handed down last week by a unanimous Eleventh Circuit panel in Henry v. Sheriff of Tuscaloosa, Alabama, No. 24-10139 (11th Cir. April 23, 2025) (available here).  The full 111-page opinion gets started this way:

Alabama Code § 15-20A-11(d)(4) prohibits “adult sex offender[s]” who have been convicted of a sex offense involving a child from “resid[ing] or conduct[ing] an overnight visit with a minor,” including their own child.  No exceptions. Plaintiff-Appellee Bruce Henry, who pled guilty to one count of possessing child pornography in 2013, challenges Section 15-20A-11(d)(4) facially and as applied to him.

Henry has completed his term of imprisonment, married, and fathered a son.  But Section 15-20A-11(d)(4) doesn’t allow Henry to live with his son. Henry asserts that Section 15-20A11(d)(4) violates his First Amendment right of intimate association and the Fourteenth Amendment’s guarantees of equal protection of the laws and due process of law. In particular, he argues that Section 15-20A-11(d)(4) interferes with “perhaps the oldest of the fundamental liberty interests” that the Fourteenth Amendment secures, the “fundamental right of parents to make decisions concerning the care, custody, and control of their children,” Troxel v. Granville, 530 U.S. 57, 65–66 (2000) (plurality opinion), which includes the right to “establish a home and bring up children,” Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

We agree. To be sure, Alabama has a compelling reason for its law: to protect children.  And certainly some sex offenders should never have the chance to be near children, including their own.

But Alabama has not narrowly tailored its law to achieve its goal.  The law offers no escape hatch whatsoever. So a person who’s been convicted of a qualifying offense has no chance to avoid the law’s prohibition by proving that they wouldn’t be dangerous to their child. Rather, in every case without fail, Alabama’s law prohibits sex offenders who’ve been convicted of a qualifying offense from residing with their child, even if the individual can prove they present no risk to their child.  As a result, it deprives some individuals convicted of qualifying offenses of their fundamental right to establish a home and bring up their own children, in violation of the Fourteenth Amendment.  And it deprives some children in Alabama of the presence of a parent who may be fit to lovingly care for and raise them.

To understand the vast breadth of Section 15-20A-11(d)(4), consider, for instance, a college freshman convicted of downloading sexually explicit photos their high-school partner sent them.  Under Alabama’s law, that person will necessarily never be able to reside with their child, even if that college freshman does not become a parent until decades after graduating and even if that college freshman never engages in any other sex offense.  The Fourteenth Amendment doesn’t allow for the automatic removal of a parent’s fundamental right to establish a home and raise their child in every circumstance that Section 15-20A-11(d)(4) imposes that penalty.

So after careful consideration, and with the benefit of oral argument, we affirm the district court’s holding that Section 1520A-11(d)(4) impermissibly burdens Henry’s fundamental rights to “establish a home and bring up children.” Id. at 399.

But there’s an easy fix for Alabama to defeat as-applied challenges like Henry’s: Alabama can amend its statute to provide parents with a meaningful chance to show that they are fit despite their conviction.  See also infra note 10 (addressing other possible less restrictive alternatives).  Indeed, as far as we can tell, that’s what every other state that strips unfit parents — including those who are sex offenders — of the right to live with their children does.

As this introduction reveals, the panel here concludes that Alabam law violates Bruce Henry's substantive due process rights. And the opinion includes many extended discussions in support of the constitutional conclusion that a "parent’s right to live with their child is deeply rooted in this Nation’s history and tradition."

"The Legitimacy Of Criminal Law And The Performance Crises Of Penality"

The title of this post is the title of this new article authored by Alessandro Corda and just published in the journal Criminal Law Forum.  Here is its abstract:

The legitimacy of state punishment has long been debated to justify the extreme form of government-authorized coercion that is criminal law.  Rather than focusing on the abstract legitimacy of criminal law, this article examines another dimension of the debate: the legitimacy (or lack thereof) arising from the dynamics of substantive criminalization.  Specifically, it addresses the “performance crises” of penality — enforcement-related failures in the implementation of the criminal law.  The article identifies and discusses three distinct typologies of crisis in the deployment and enforcement of penal statutes: crises of hyper-intensity, crises of hyper-selectivity, and crises arising from sentence opacity, each undermining the legitimacy of criminal law in different ways. 

By addressing this gap in the theoretical literature, the article highlights the critical role of enforcement in shaping normative and policy discussions on substantive criminalization and its impact on the legitimacy of criminal law as a whole.  From this perspective, penal legitimacy should be informed by the notion of “penal adequacy”, grounded — depending on the specific type of crisis — in moderation, non-discrimination, and transparency, and, across all cases, in sustainability.  This concept highlights a balanced and fair exercise of the state’s penal power — one that is measured, non-discriminatory, clearly communicated, and, overall, capable of achieving its objectives in a sustainable manner.