Sentencing Law and Policy

"Conflicting Theories on the Proper Role of Just Deserts: Irrelevant, Complementary, or Inviolate?"

The title of this post is the title of this new paper now available via SSRN and authored by Paul Robinson, Jeffrey Seaman and Hugh Rennie. Here is its abstract:

The last several decades of the 20th century saw a battle between retributivists who wanted criminal liability and punishment to depend upon an offender’s “just deserts” and crime-control utilitarians who were willing to deviate from desert to maximize deterrence, incapacitation, or rehabilitation.  In the United States, the American Law Institute’s 2007 revision to the Model Penal Code’s distributive principle sided with the retributivists by setting desert as inviolate, but that has not settled the debate in the U.S. or elsewhere.  Current debate has simply become more complex or obscure, often with advocates employing new language that presents their views as more consistent with desert, although the change is more semantic than meaningful.  This Article surveys the current landscape surrounding desert and proposes a taxonomy for better understanding that debate.

Part I of the Article classifies three basic views of desert: desert as irrelevant, desert as complementary, and desert as inviolate in setting criminal liability and punishment.  However, there are significant philosophical and political variations within each of these major views.  Desert-irrelevant proponents include harsh crime-control utilitarians and prison abolitionists.  Desert-complementarians include everyone from old school liberals, tough-on-crime conservatives, and progressive criminal justice reformers.  Desert-inviolate advocates are also a diverse group reflecting the flexibility of desert as a concept.  Many criminal justice reformers may be surprised to learn they share a perspective on desert quite similar to bitter political or policy opponents.  Part II of the Article briefly describes common critiques of each view of desert without taking a position.

What emerges is a picture of desert both nuanced and important.  Despite being flexible enough to accommodate a wide range of policy preferences, desert imposes real limits on punishment that some criminal justice policymakers may find undesirable.  The intuitive valuation of and support for desert among ordinary people also makes desert a kind of default principle that reformers can choose to work within or attempt to argue their way out of.  The intuitive power of desert may also explain why there are increasing attempts to evolve the concept by expanding blameworthiness calculations to include factors foreign to traditional desert theory.  With so many different groups employing desert-coded language and laying claim to the term “justice,” it is more important than ever to clarify the role of desert in current debates.

Florida completes its fifth execution in 2025

As reported in this USA Today piece, "Florida has executed a man known as the 'Casanova Killer' for his good looks and ability to charm women just before murdering them." Here is more:

Glen Edward Rogers, 62, was executed Thursday by lethal injection for the murder of Tina Marie Cribbs, one of four single mothers in their 30s with reddish hair who fell victim to the Casanova Killer.  Rogers was also known as the "Cross Country Killer" because the victims all lived in different states: California, Mississippi, Louisiana and Florida.

"He's an animal," one of his victim's sisters said in court before Rogers was sentenced to death, according to an archived report from the Associated Press. "He's about the evilest thing I think I've ever imagined."

Rogers used his last words to shout-out President Donald Trump and address the families of his victims, according to execution witnesses....

Rogers − a native of Hamilton, Ohio − was pronounced dead at 6:16 p.m., becoming the 16th inmate executed in the U.S. this year and the fifth in Florida. Another three men are set to be executed in the U.S. next week, in Texas, Indiana and Tennessee.

Authorities connected five victims to the Casanova Killer.  Four of them were mothers with reddish hair in their 30s. Three of the murders happened within a six-day period.... Soon after his arrest, Rogers claimed to have killed Nicole Brown Simpson and Ronald Goldman in Los Angeles in June 1994, and about 70 people overall. There was no evidence to back that up.

Supreme Court unanimously reiterates "totality of the circumstances" approach to Fourth Amendment

The Supreme Court this morning handed down a short opinion in Barnes v. Felix, No. 23–1239 (S. Ct. May 15, 2025) (available here).  The unanimous ruling, authored by Justice Kagan for the Court, breaks no new ground, but reiterates prior doctrines in reversing the Fifth Circuit.  Here is how the nine-page opinion for the Court starts:

A police officer’s use of deadly force violates the Fourth Amendment when it is not “objectively reasonable.” Graham v. Connor, 490 U.S. 386, 397 (1989). And that inquiry into reasonableness, we have held, requires assessing the “totality of the circumstances.” Id., at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 9 (1985)).

The question here is whether that framework permits courts, in evaluating a police shooting (or other use of force), to apply the so-called moment-of-threat rule used in the courts below.  Under that rule, a court looks only to the circumstances existing at the precise time an officer perceived the threat inducing him to shoot. Today, we reject that approach as improperly narrowing the requisite Fourth Amendment analysis.  To assess whether an officer acted reasonably in using force, a court must consider all the relevant circumstances, including facts and events leading up to the climactic moment.

Justice Kavanaugh authored a six-page concurring opinion that was joined by Justices Thomas, Alito and Barrett. Here is its first paragraph:

I join the Court’s opinion.  I agree that the officer’s actions during the traffic stop in this case should be assessed based on the totality of the circumstances.  I write separately to add a few points about the dangers of traffic stops for police officers, particularly when as here the driver pulls away in the midst of the stop.

I will leave it to Fourth Amendment experts to determine if there is anything doctrinally consequential in this rulings. For me and perhaps other sentencing fans, some of the broader vibes seem worth noting. For example, it seems interesting (but perhaps unsurprising) who joined and who did not join Justice Kavanaugh's concurrence. In addition, I find notable that both opinions include much discussion of modern Fourth Amendment caselaw, as well as modern policing realities, but seemingly do not engage at all the text, history and tradition of the actual Fourth Amendment.

Lots of new data from the US Sentencing Commission on many fronts

As it does so well, US Sentencing Commission is continuing to release all sort of notable data on all sorts of issues in the federal sentencing world. For example, the Commission has released these new "Quick Facts" documents:

• NEW Career Offenders (May 2025)
• NEW Drug Trafficking (May 2025)
• NEW Fentanyl Trafficking (May 2025)
• NEW Fentanyl Analogue Trafficking (May 2025)
• NEW Methamphetamine Trafficking (May 2025)

In addition, the Commission this week has released here the "latest data on motions filed for compassionate release in federal court" running through March 2025.

And, last but not least, the Commission has a bunch of new data on guideline retroactivity past and potentially future, with data on the retroactive impacts of 2023 criminal history guideline amendment and on the potental impact if certain 2025 guideline amendment were made retroactive:

• NEW Retroactivity Report on Part A of the 2023 Criminal History Amendment (May 12, 2025)
• NEW Retroactivity Report on Part B of the 2023 Criminal History Amendment (May 12, 2025)
• NEW Analysis of the Impact of Certain 2025 Guideline Amendments if Made Retroactive (May 15, 2025)

New Georgia law reforms process for exempting persons with intellectual disability from capital punishment

Georgia's administration of capital punishment has long had a unique place in the history of the death penalty in the United States.  But, as detailed in this local article, one unique aspect of its modern death penalty process changed this week to be more in line with other state capital processes.  Here are the details:

HB 123 lowers the legal threshold for proving a person has an intellectual disability in the courtroom.  Prior to the bill being signed, it had to be proven “beyond a reasonable doubt,” the highest threshold for evidence.  Now, under HB 123, it must be proven “by preponderance of evidence,” a much lower standard of proof.

Georgia first outlawed capital punishment for people with proven intellectual disabilities in 1988, but the standard of proof remained among the most difficult in the nation to achieve.  A 2002 decision from the U.S. Supreme Court outlawed capital punishment for people with proven intellectual disabilities nationwide, but left it up to individual states to determine the threshold for proving a disability in court.  Until Tuesday, Georgia remained the only state where it must be proven “beyond a reasonable doubt.”...

The new law also moves the proceeding to determine intellectual disability ahead of a formal trial, not during it, meaning a person’s mental capacity is determined right away....

The law is not retroactive. Georgia currently has 34 inmates remaining on death row, and none of them are eligible for appeal under HB 123.  Unlike some bills signed by the governor which take effect July 1, HB 123 became active law when Kemp signed it Tuesday.

The law's shift to a pretrial determination of intellectual disability means that now in Georgia, as is the case in all other states, it will be for a judge to determine whether a defendant is intellectually disabled rather than being determined by a jury while assessing guilt or innocence.

Notable reporting on the new "wild west" of clemency in Prez Trump's second term

In this post around Thanksgiving last year at the Sentencing Matters Substack, I made the case for chief executives to make more and more regular use of their clemency powers.   And I had this musing in that commentary:  "I think it worthwhile to imagine how possible actions by Trump to prioritize use of his clemency powers early in his second term might portend a new clemency tradition — and not just for Presidents, but also for Governors — of chief executives exercising this historic constitutional power early and regularly, rather than in just a lame-duck frenzy."  Not long thereafter, of course, both out-going Prez Biden and in-coming Prez Trump made greater use of their clemency powers than I could have predicted or guessed.

My prior piece came to mind as I read this notable new Wall Street Journal article fully headlined "The Wild West of Presidential Pardons in Trump’s Second Term: Trump sets off scramble among those seeking clemency to use lobbyists, personal connections to president."  I recommend the article in full, and here are excerpts:

Trump has turned the pardon process into the Wild West. What had long been a sober legal proceeding done by career officials in the Justice Department increasingly resides in the White House and depends on the whims of a president who is receptive to arguments of political persecution.

The president, according to a senior administration official, has taken a particular interest in the work of Alice Johnson, the pardon czar he appointed earlier this year. He regularly asks her, “Where are my pardons?” The White House is expected to announce a substantial batch of pardons in the coming weeks, the official said.

Pardon seekers are shelling out to hire lawyers and lobbyists who tout access to those in the president’s inner circle. Others seek to make their case to Trump or his inner circle at places they frequent, showing up at events at Mar-a-Lago in Florida, GOP hangouts on Capitol Hill and a collegiate wrestling match. And still others connect with conservative influencers, pitching their case on shows Trump consumes.

The president is listening. Several of the pardons he has issued so far followed advocacy by people close to him. Some lawyers with close ties to Trump, including the president’s former lawyers Jesse Binnall and Jim Trusty, have helped clients pursue pardons, people familiar with the matter said. Others who have received pardons got boosts from Health and Human Services Secretary Robert F. Kennedy Jr. and former GOP Rep. Matt Gaetz, a longtime ally of Trump’s....

Pardon seekers have found success drawing parallels between their cases and those of Trump, a felon who has railed against his own experience with the justice system. “You need someone who can get in front of the president for five minutes and make a pitch of how a person was wrongfully targeted,” said Eric Rosen, a defense attorney who has clients seeking pardons.

A senior administration official said that pardon applicants undergo “extensive vetting,” conducted by the pardon czar’s office, the White House Counsel’s Office and the Justice Department. The administration’s priority, the official said, is to pardon those who were the targets of “unfair justice” or those deserving of a second chance.

Some prior recent related posts covering only a portion of Prez Trump's clemency actions:

• Prez Trump grants 14 commutations and blanket pardons to all other Jan 6 defendants 
• Prez Trump formally announces Alice Marie Johnson will be his "pardon czar" 
• Wide praise, but uncertain plans, for Prez Trump's new pardon czar
• Prez Trump continuing to make robust use of his clemency pen (for white-collar offenders) 
• Prez Trump keeps using his clemency pen, building quite the clemency record
• "Lawyers Are Quoting $1 Million in Fees to Get Pardons to Trump"

Menendez brothers resentenced by California judge to 50 years to life, making them parole eligible

As reported in this Los Angeles Times article, "Erik and Lyle Menendez received a chance at freedom Tuesday after more than 35 years in prison, with an L.A. County judge granting a request to resentence them after hours of emotional testimony from family members who said the brothers had spent enough time behind bars for the brutal 1989 killings of their parents."  Here is more:

Superior Court Judge Michael Jesic said late Tuesday that he would resentence the brothers to 50 years to life, meaning they will be granted a parole hearing at some point in the future. “We are deeply humble and grateful and happy for our family,” Lyle Menendez said in a phone call with one of his attorneys outside the courthouse in Van Nuys, which was relayed to a Times reporter.

Dist. Atty. Nathan Hochman argued that the brothers had failed to show proper “insight” into their crimes and had not atoned for lies they told over the last 30 years about the nature of the killings, but Jesic dismissed those arguments as irrelevant . Prosecutors needed to prove the brothers posed an unreasonable risk to the public, according to Jesic, who said they failed to do so.

After deciding they should be resentenced, Jesic allowed each brother to speak to the court over a Zoom call from prison. In tearful addresses that drew sobs from the relatives who have been fighting for their release for years, Erik and Lyle said they took full responsibility for their crimes. ...

Jesic’s decision ended an eight-month saga that started when then-Dist. Atty. George Gascón filed a petition for the brothers to be resentenced late last year, and followed an emotional day of testimony.... The hearing was the culmination of years of advocacy by the family to free the brothers, who were convicted of first-degree murder.

Defense attorney Mark Geragos asked Jesic to resentence the brothers to manslaughter, arguing they shot their parents to death out of fear their father might kill them to cover up years of sexual abuse. But instead, Jesic’s ruling aligned with a request made last year by Gascón.  The reduced sentence of 50 years to life makes them eligible for parole under the state’s youthful offender law because they were under the age of 26 at the time of the murders....

A parole hearing will likely be scheduled in the coming months. But Gov. Gavin Newsom could also grant them clemency if he honors a pending request. A hearing on that matter is currently scheduled for June 13.

California’s resentencing law leans heavily in favor of defendants, a point Jesic reminded the courtroom of early Tuesday. Under state law, Jesic said, he could block a resentencing petition only if the defendant poses an “unreasonable risk of danger to public safety,” meaning there is a risk they will commit another violent crime — such as murder, manslaughter or rape — if they are released.

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

The latest (and still limited) discussions of the great crime decline circa 2025

I have done a couple of 2025 posts (here and here) drawing on big city "real time" homicide data from police departments to detail the remarkable decline in murders apparently unfolding in many large urban areas through the first part of 2025.  Though these data may not be representative of the whole nation and the trends may not persist through 2025, I continue to want to speculate that we may be in the middle of a (post-COVID spike) great crime decline.  And yet, I still see relatively little discussion of these data and trends which is what I keep wanting to slag notable discussions of these topics for a few sourses: 

From External Processing, "Explaining the COVID Violence Spike and the Roaring Crime Decline: Four Reasons for the Historic Beginning to the 2020s"

From Jeff-alytics, "How 2025 Could Feature The Lowest US Murder Rate Ever Recorded: Maybe!"

From Slate, "A Farewell to Arms: With some American cities seeing their lowest murder numbers in decades, will Donald Trump change his tune?"

These pieces have lots of interesting data and insights and merit reas in full. I will conclude just with a focus on Jeff Asher's summary statement in Jeff-alytics post: "There are a ton of hypotheticals and factors that could change.... But it’s fairly clear that a decline in the direction we’re currently seeing would safely give 2025 the title of lowest US murder rate ever recorded."

"Confronting Uncharged Conduct"

The title of this post is the title of this new article available via SSRN and authored by Barnett Harris and Christopher Merken. Here is its abstract:

Every year, federal judges sentence tens of thousands of criminal defendants to carceral terms.  Although Congress requires sentences to be “sufficient, but not greater than necessary,” sentencing judges often rely, at least in part, on untested facts — facts that are not subject to the rigors of the adversarial process — because federal courts do not apply the Sixth Amendment’s Confrontation Clause protections at sentencing.  Accordingly, prosecutors adduce evidence at sentencing which has neither been confronted nor admitted to support the Government’s sentencing recommendation.  This practice raises serious constitutional concerns because it ignores both the original understanding of the Confrontation Clause and Supreme Court authority.  Neither a federal statute (like 18 U.S.C. § 3553(a)) nor the United States Sentencing Commission’s Guidelines can authorize (or excuse) a Sixth Amendment violation.  A detailed historical review of the Confrontation Clause and related Supreme Court precedent confirms that the prevalent use of uncharged and dismissed conduct to enhance a sentence violates the Sixth Amendment’s Confrontation Clause.  As a result, 18 U.S.C. § 3553 and 18 U.S.C. § 3661 are unconstitutional to the extent that they conflict with the Sixth Amendment, and sentencing judges should decline to consider uncharged or dismissed conduct not subject to the protections the Sixth Amendment provides.

Could Prez Trump's new EO on overcriminalization prompt the US Sentencing Commission to review strict liability guideline enhancements?

As flagged in this post, just a couple of days before he left the Oval Office back in 2021, Prez Trump issued an exective order titled "Executive Order on Protecting Americans From Overcriminalization Through Regulatory Reform."  I am pretty sure that EO got quickly repealed in the early days of the Biden Administration.  But with a second stint in the Oval Office, Prez Trump this time prioritized this important criminal justice reform topic with this new EO dated May 9, 2025 titled "Fighting Overcriminalization In Federal Regulations." 

Because I have long been troubled by federal "overcriminalization," and because I have work with various public policy groups on advocating for various mens rea reforms, I am quite pleased to see this new EO.  And, as the title of this post suggests, I am keen to speculate about whether and how the EO could have some sentencing echoes.  The EO merits reading in full, but here are a few excerpts catching my attention:

Many ... regulatory crimes are “strict liability” offenses, meaning that citizens need not have a guilty mental state to be convicted of a crime....

This status quo is absurd and unjust.  It allows the executive branch to write the law, in addition to executing it.  That situation can lend itself to abuse and weaponization by providing Government officials tools to target unwitting individuals....

The purpose of this order is to ease the regulatory burden on everyday Americans and ensure no American is transformed into a criminal for violating a regulation they have no reason to know exists....

Strict liability offenses are “generally disfavored.”  United States v. United States Gypsum, Co., 438 U.S. 422, 438 (1978).  Where enforcement is appropriate, agencies should consider civil rather than criminal enforcement of strict liability regulatory offenses or, if appropriate and consistent with due process and the right to jury trial, see Jarkesy v. Securities and Exchange Commission, 603 U.S. 109 (2024), administrative enforcement.

Agencies promulgating regulations potentially subject to criminal enforcement should explicitly describe the conduct subject to criminal enforcement, the authorizing statutes, and the mens rea standard applicable to those offenses....

Strict liability criminal regulatory offenses are disfavored.  Any proposed or final criminal regulatory offense that includes a strict liability mens rea for the offense shall be treated as a “significant regulatory action”...

Because this EO only formally applies only to "a Federal regulation that is enforceable by a criminal penalty" and adresses only executive agencies, the US Sentencing Commission and its federal sentencing guidelines are not subject to any direct mandates via this EO.  But given that the Trump Administration calls it "absurb and unjust" to prosecute persons when underlying conduct may not evince a guilty mental state, it arguably ought also be seen as  problematic for severe sentencing enhancements to be based on astrict liability and entirely untethered from proven criminal intent.  Yet many of the most severe guideline sentencing enhancements — particularly those related to "loss" amounts, to drug type/quantity, and to other quantitative metrics — are "strict liability" enhancements, meaning that persons need not have any culpable mental state connected to specific guideline factors that can double or triple or quadruple the recommended guideline sentence.

Especially give that criminal regulatory offenses will be subject to punishment under the federal sentencing guidelines, I believe this EO ought to, at the very least, prompt the Commission to review all of its existing to make sure mens rea issues are given full concern and due respect at sentencing.  Of course, given that judge have always been required to consider "the nature and circumstances of the offense" and to "provide just punishment" under 18 U.S.C. § 3553(a), mens rea concerns have been a viable element of sentencing arguments and decision-making.  But, the same could be said for the charging discretion of federal prosecutors before this EO, and yet the Trump Administration is here demanding our justice system give more express and focused attention to any "putative defendant’s general awareness of the unlawfulness of his conduct as well as his knowledge or lack thereof of the regulation at issue."  I hope the USSC might, perhaps spurred by both the letter and the spirit of this EO, consider review and revision of its guidelines to minimize the risk of "absurd and unjust" levels of punishment based on strict liability sentencing enhancements.

"The Nuances of Prosecutorial Nonenforcement"

The title of this post is the title of this new article authored by Carissa Byrne Hessick and Meighan Parsh now available via SSRN. Here is its abstract:

The academic literature on prosecutors is divided: Some commentors believe that prosecutors should use their ability to decline to bring charges more aggressively, decreasing the overall number of criminal cases and helping to address the problem of mass incarceration.  Others believe that broad prosecutorial nonenforcement poses significant risks to our constitutional order and to public safety.  While the visibility of this debate has increased-spilling over from the pages of law reviews into political campaigns and headlines-the terms of that debate are, at times, unclear. Prosecutorial nonenforcement is a multi-faceted phenomenon, and discussions about its costs and benefits can obscure necessary tradeoffs between important values and principles.

This Article brings much needed nuance to the debate surrounding prosecutorial nonenforcement.  It provides a three-tiered taxonomy of nonenforcement decisions, identifying different nonenforcement methods, justifications, and decisionmakers. It also explains how different features of nonenforcement implicate conflicting values, such as individualization and consistency.  By providing this taxonomy and highlighting these tradeoffs, the Article seeks to improve the terms of the debate surrounding prosecutorial nonenforcement.  In so doing, it demonstrates that, although abstract discussions about nonenforcement can be valuable, they are no substitute for an assessment of the substance of those decisions.

Latest data on death rows in US (at roughly start of second Trump Administration)

Via this post by Robert Dunham at The DP3 Substack, I see that the Legal Defense Fund has released its latest accounting of persons on death rows in the US, Death Row USA, Spring 2025.  The LDF document, which runs 60 pages, has lots and lots of death row data and other information, and the substack post provides various highlights.  Here is how that post start (with my emphasis added at the end): 

The number of prisoners on death rows or facing capital retrials or resentencing proceedings across the United States has fallen to 2,067 as of April 1, 2025, according to the Spring 2025 Death Row U.S.A. (“DRUSA”), a quarterly census of the U.S. death row population by the Legal Defense Fund.  The new total represents a decline of 25 prisoners (1.2%) from the 2,092 people whom LDF reported faced active death sentences or possible resentencing at the start of the year.

Historically, the extent of the decline in the national death-row population in any single quarter does not predict what will happen the coming months, although the long-term trends are clear. The nation’s death-row population declined by only 0.6% (14 people) in the first quarter of 2024, but ended the year with 149 fewer death-row prisoners, the largest death-row population decline in more than two decades and the highest annual percentage decline (6.6%) in nearly a half-century. LDF’s Spring 2025 death-row census, released on May 2, reported 160 fewer individuals on death-row or facing continuing jeopardy of capital resentencing than in its Spring 2024 census, marking a one-year decline of 7.2%.  LDF has reported a decline in the number of people on death row in the U.S. in every quarterly DRUSA census since January 2010 and in each of the last 24 years.  Overall, the U.S. death-row population has fallen 44.5% since its peak of 3,726 at the close of 2000.

As the title of this post hints, I wonder if the consistent and long-running decline in the number of persons on US death rows might be disrupted in coming years.  As noted in this post, Prez Trump issued this Executive Order on his first day in office titled “Restoring the Death Penalty and Protecting Public Safety,” which contains multiple provisions that aspire to "ensure that the laws that authorize capital punishment are respected and faithfully implemented."  Though there are legal and practical limits to how the federal executive branch can directly impact the number of capital charges and sentences (especially in state systems), this EO strikes me as one marker of what I perceive to be a (small?) "vibe shift" in the adminitration of capital punishment that could echo in various ways through death rows.

Though a "vibe shift" in the adminitration of capital punishment may not be tangible (or even real) with regard to the number of death sentences in the US, there already seems to be an increase in the number of executions in the US since Prez Trump took office.  Specifically, there were 15 executions in various states in roughly a 90-day perioud after Prez Trump returned to office, and it has been many years since the US has averaged more than an execution per week for such an extended period.  Of course, lots of factors with nothing to do with the President influence executon dates and rates, but I still find these various new metrics notable.