Sentencing Law and Policy

Justice Department now asserting in some cases that Prez Trump's Jan 6 pardons covers gun and drug crimes

As reported in this new NPR article, headlined "Justice Department broadens Jan 6 pardons to cover gun, drug-related charges," the Justice Department is now concurring with some defendants claims that Prez Trump's Jan 6 pardons covers more than Jan 6 activity.  Here are some details with a focus on one case (and links from the original):

The Department of Justice has widened the scope of President Trump's pardons for Jan. 6 riot defendants to include separate but related gun charges. The charges stemmed from FBI searches executed during the sprawling investigation into the Jan. 6, 2021 attack, which allegedly turned up evidence of other crimes not directly connected to the Capitol breach.

In legal filings this week, federal prosecutors asked judges to dismiss cases against two former Jan. 6 defendants, who had both faced federal gun charges.

This week's legal filings represent a more expansive understanding of Trump's Jan. 6 pardons than was initially clear. Trump's order, which he issued on his first day in office, gave clemency for "offenses related to events that occurred at or near the United States Capitol" on Jan. 6.

Immediately after Trump's pardons — which included defendants who violently assaulted police officers and those with long criminal records — the Department of Justice appeared to stand by the separate gun charges. That was then.

In the case against Elias Costianes of Maryland, federal prosecutors alleged he joined the mob that breached the U.S. Capitol on Jan. 6, and took videos of himself inside of the building. Costianes pleaded not guilty to the Jan. 6 charges, and his case was still pending when Trump took office and ordered the dismissal of all ongoing Capitol riot cases. But that was not Costianes' only legal problem. When FBI agents first arrested Costianes and searched his residence on Feb. 12, 2021, they found four guns, along with evidence that Costianes used and sold cocaine and testosterone.

Costianes pleaded guilty to a charge of possession of a firearm or ammunition by an unlawful user of a controlled substance. He was sentenced to a year in prison, which he began serving earlier this month.

This week, the Department of Justice said in a court filing that it had concluded that Trump's pardon order extended to Costianes' drug and gun case, because it was sufficiently related to his Jan. 6 charges.  "He should be immediately released from custody in connection with this case because the President has pardoned him of the offenses in the indictment," the government's lawyers wrote....

In the legal filing in Costianes' case, Department of Justice lawyers said, "Whether the pardon applies is a fact-intensive and case-specific inquiry."

Meanwhile, on a somewhat related front, here are links to a couple of recent news pieces about some of the beneficiaries of Jan 6 pardons that caught my eye:

From The Hill, "Pardoned Jan. 6 defendants get hero’s welcome, star status at CPAC"

From the New York Times, "Pardoned for Jan. 6, She Came Home to a New Reality"

From NPR, "Pardoned Jan. 6 rioter from Washington state has a new passion — reforming the justice system"

Prez Trump formally announces Alice Marie Johnson will be his "pardon czar"

As reported in this Reuters piece, "Donald Trump on Thursday said he had made Alice Johnson, a Tennessee woman who was serving a life sentence for a drug crime before Trump commuted her sentence, a 'pardon czar' to advise him on further acts of clemency." Here is more:

Trump made the announcement at a Black History Month reception at the White House, roughly four weeks after he returned to office and began implementing sweeping rollbacks of diversity, equity, and inclusion (DEI) initiatives across the federal government.

Trump, who commuted Johnson's life sentence in 2018 and granted her a full pardon in 2020, asked her to advise him on other cases where pardons were warranted.

"Alice was in prison for doing something that today probably wouldn't even be prosecuted," Trump told the crowd of mostly African American supporters, including golfer Tiger Woods, who joined the president on stage.

"You've been an inspiration to people, and we're going to be listening to your recommendation on pardons," he said to Johnson. "You're going to find people just like you."

As set out in this post from October 2018, Alice Marie Johnson authored a Fox News column not long after she was released from from prison that urged Prez Trump to consider many more federal prisoners for clemency.  Here is a small portion of that lengthy piece:

Many other nonviolent offenders in federal prisons today are — like me — no danger to society, and I look forward to having President Trump and members of his administration examine their cases.  Many of these men and women have spent long years in prison and deserve to receive clemency or a commutation of their sentences from the president.

Freeing these offenders early would be an act of justice and mercy, as granting me my freedom was.  And early release would save taxpayers the cost of feeding and housing these people for years after they have paid their debt to society....

The president has a power that the Constitution grants to him alone to both show mercy and deliver justice for people who were given excessively long sentences for crimes involving no violence.  The people who deserve to be freed are those who have long since recognized their mistakes and who have rehabilitated themselves during their time in prison.

I will never forget what President Trump did for me. He changed my life and gave me the opportunity to fulfill my potential, and now he has the chance to do the same for thousands more.

As this piece highlights, Alice Marie Johnson has been advocating for criminal justice reform and clemency since she was released after 22 years in federal prison, and I expect she will make lots of clemency recommendations to Prez Trump.  Prez Trump seems to quite enjoy his unlimited power to grant clemencies, so we might reasonably expect that he will act on many of Alice Marie Johnson's recommendations.

Call for Papers (once more): FSR issue on “A Justice System Crossroads: Reflecting on Biden’s Record and Projecting a Second Trump Term”

As first mentioned in this post a few month ago, the editors of the Federal Sentencing Reporter are seeking articles for a new FSR issue on “A Justice System Crossroads: Reflecting on Biden’s Record and Projecting a Second Trump Term.”  As the news highligths nearly every day, the transition in admimnistrations has certainly raised plenty of crimnal law and sentencing issues, and here again is some background on this call for papers:

Every major federal election impacts sentencing and criminal justice policy and practice in many ways, both predictable and unpredictable. But, with the 2020 and 2024 elections including all sorts of political rhetoric and policy debates around crime and criminal justice issues, the election of Donald Trump and the control of both Houses of Congress by the Republicans feel especially significant for a wide array of sentencing and criminal justice issues. The 2024 election follows the recent and still on-going implementation of the landmark First Step Act. And, of course, both Presidents Trump and Biden have developed significant criminal justice records ranging from notable use of clemency powers to nominations transforming the U.S. Department of Justice and the U.S. Sentencing Commission (not to mention the U.S. Supreme Court).

With the Biden Administration winding down and another Trump Administration gearing up, the editors of the Federal Sentencing Reporter are eager to have judges, lawyers, other practitioners, policy advocates, academics, and researchers, share thoughts on the Biden legacy and what we might expect (or hope for) in the new Administration for publication in a fall 2025 FSR issue. We encourage a wide array of authors to contribute commentaries on the wide range of topics connected to criminal justice, including guideline reform, charging, clemency, compassionate release, BOP operations, forfeiture and more.

FSR commentaries for this issue could just “look back” at where we’ve been the last four years, perhaps examining the out-going Biden Administration’s implementation of various aspects of the First Step Act or the work of the finally functioning U.S. Sentencing Commission. Or they could “look forward” to such issues as how the incoming Trump Administration’s Department of Justice might move forward on the death penalty or mandatory minimum sentencing. With Presidents Trump and Biden making controversial use of clemency powers, we would especially welcome writings about pardon practices and proposals for reforms. For this issue and others, FSR always welcomes commentaries from all perspectives, including insights from sentencing experiences in the states and other countries. Everyone with an informed interest in sentencing law and practice is highly encouraged to submit a commentary for this issue.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with light use of citations in the form of endnotes. The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission). Priority will be given to drafts submitted by March 15, 2025, and later submissions will be considered as space permits. Submissions should be sent electronically to berman.43 @ osu.edu with a clear indication of the author and the author’s professional affiliation.

"Chasing a clean slate: the shifting roles of privacy and technology in criminal record expungement law and policy"

The title of this post is the title of this new article authored by Sarah Lageson and Alessandro Corda which was recently published in the Harvard Journal of Law & Technology. Here is its abstract:

This Article explores criminal record expungement policy in the United States through the lens of privacy interests. Embarking on a historical policy analysis spanning from the 1950s to the 2020s, it unveils the evolving interplay between privacy rights and the shifting tides of rehabilitative and punitive ideologies and policies in the criminal legal system.  analysis shows that privacy concerns initially emerged as a silent underpinning of rehabilitative policies where privacy was recognized as key to rehabilitation but were subsequently dismissed in the “tough-on-crime” era, where emphasis was placed on public punishment and labeling in the name of public safety.  The Article then posits that contemporary strides in criminal record expungement legislation and the embrace of automated record-clearing processes through algorithmic means find their roots in our current moment that emphasizes personal data privacy alongside criminal justice reform. 

The Article argues that in the current data-driven landscape, informational privacy — the right of individuals to control and protect their personal data from unauthorized access or disclosure — has emerged as an essential yet often understated element in legal reforms addressing criminal record discrimination.  These reforms are unfolding against the backdrop of societal calls for safeguarding individuals against lifelong stigmatization and unwarranted surveillance.  Privacy considerations, serving as a surrogate for rehabilitation, also help avoid “soft on crime” criticism, redirecting attention toward providing individuals with an opportunity to rebuild their lives free from perpetual judgment.

However, the Article also introduces a nuanced perspective, cautioning against unbridled optimism in these technological advancements meant to mitigate the collateral consequences of having a criminal record.  Specifically, it scrutinizes the potential pitfalls inherent in the algorithmic automation of record clearance processes, as technological realities may also undermine the purported success and fairness of recently enacted criminal record clearance mechanisms.  Ultimately, the Article contributes a timely and critical analysis that not only illuminates the historical trajectory of privacy considerations in criminal record expungement law and policy but also injects a note of caution regarding the implications of contemporary technological solutions.

Prez Trump reportedly to name Alice Marie Johnson as his "pardon czar"

This new New York Times article, headlined "Trump May Name a Woman He Once Pardoned to Be His ‘Pardon Czar,’" reports on a notable potential development in the federal clemency arena.  Here is how the article begins and ends:

President Trump’s advisers are considering Alice Marie Johnson, who was serving a life sentence for a drug conviction when the president commuted her sentence during his first term, to be the “pardon czar,” according to three people familiar with the discussions.

It was not immediately clear what the role would entail, but Ms. Johnson, at the end of Mr. Trump’s first term, said she wanted to work on behalf of people she believed should be considered for clemency.

Ms. Johnson’s appointment has not been finalized, and like many things in Mr. Trump’s world, plans could change. When reached by phone, Ms. Johnson declined to comment. A White House spokesman did not respond to a request for comment.

Ms. Johnson, whose case was originally brought to Mr. Trump’s attention by Kim Kardashian, has become a vocal supporter of the president. Some of Mr. Trump’s advisers see her as being politically helpful to him over the years; during the 2020 presidential race, the Trump campaign featured her in a Super Bowl ad in an effort to reach Black voters....

In a November 2024 television interview, Ms. Johnson said that after her release she personally submitted over 100 petitions to the White House after Mr. Trump asked her to compile a list of people she believed deserved clemency. “I’m so blessed to be free myself,” she said. “The work continues. I can’t help but advocate for people who are incarcerated, because I’m really one of them. I’m just a free one of them.”

New Prison Policy Initiative report details myriad problems with correctional healthcare systems

The Prison Policy Initiative today released this notable new report titled "Cut-rate care: The systemic problems shaping 'healthcare' behind bars."  This report's subtitle highlights some of its themes: "In correctional healthcare systems, care is secondary to controlling costs and avoiding lawsuits — a problem plaguing both private and public healthcare delivery. What will it take to get people the care they need?".   Here are excerpts (with links) from the start of the report:

While people in the United States have long struggled with cost, quality, and access to healthcare, the crisis is particularly severe for people confined in jails and prisons. Since 2000, conditions have been so bad that roughly half of all state prison systems have been court-ordered to improve mental and medical healthcare, according to our analysis of data from The Civil Rights Litigation Clearinghouse. Alabama prisons have been hit with six healthcare-related court orders in that time — more than any other state — followed by California (5) and Colorado, Connecticut, New York, and Wisconsin (3 each). These court orders cover a wide range of healthcare issues, including insufficient policies, understaffing, failure to provide medication and treatments, and lack of quality monitoring and reporting; they paint a frightening picture of the scale of the problem facing incarcerated people. But lawsuits are an extremely limited metric by which to judge the quality of correctional healthcare: it’s very difficult for incarcerated people to successfully sue over their conditions, and many people endure medical neglect and abuse that never makes it before a judge. In other words, the reality is almost certainly worse. 

It’s no secret that incarcerated people are routinely failed by their healthcare providers. Every year, dozens of news articles and broadcasts, government audits, and advocacy groups spotlight healthcare issues in federal, state, and local lock-ups. Yet, the quality of healthcare in jails and prisons remains poor: health issues and mortality rates remain at crisis levels, costs continue to mount, and departments cycle through contracts with various medical providers in just a few short years. Meanwhile, prisons routinely fail to meet the healthcare and treatment needs of incarcerated people. To make matters worse, corrections facilities are designed and operated in ways that actually worsen the health of incarcerated people. Many features of incarceration make symptoms of mental illness worse and aid in the spread of infectious disease. Prisons are also environmental hazards that have serious consequences for the health of people who live in and around them.

What needs to change for incarcerated people to get the healthcare they need? For this report, we pored over research, news investigations, government reports, and contractor documents to better understand the “big picture” relationship between healthcare providers, government agencies, and incarcerated people, and to identify system-level targets for improving care outcomes. Since so much analysis overlooks the experiences of incarcerated people, we also turned to dozens of people inside for their input.

Noting personnel departures and continued challenges at the federal Bureau of Prisons

Walter Palvo has this new piece at Forbes highlighting transitions and challenges at federal Bureau of Prisons.  I recommend the full piece, headlined "Bureau Of Prisons Executives Announce Retirement Ahead Of New Director," and here are a few excertps:

The Federal Bureau of Prisons (BOP) is currently experiencing significant upheaval, with a wave of leadership departures leaving the agency without clear direction during a critical time.  Acting Director William Lathrop, who stepped into the role on January 20, 2025, after former Director Colette Peters was reportedly fired, has now announced his retirement, effective February 28.  Lathrop’s statement acknowledged the gravity of the situation, saying,  “We are in unprecedented times as an Agency.”  His departure is accompanied by the resignations of five other senior leaders, including General Counsel James Wills and two regional directors.

This mass exodus has left the BOP rudderless, grappling with pre-existing operational challenges exacerbated by the sudden leadership vacuum. As the agency faces increasing pressure to perform amid significant policy shifts, uncertainty looms over its future....

Complicating matters further, the BOP has been tasked with additional responsibilities related to immigration. It is now responsible for assisting in immigration investigations and housing detainees, a shift that has sparked concern among staff members.  Facilities such as FDC Miami, FCI Atlanta, and FCI Berlin are now housing hundreds of detainees, and U.S. Immigration and Customs Enforcement (ICE) is exploring further expansion into other BOP facilities, including FCI Dublin and FPC Morgantown — both of which were slated for closure in December 2024.  This move marks a significant policy change, as BOP facilities have traditionally housed only those convicted of crimes.....

The BOP is grappling with multiple systemic issues, including severe staff shortages, crumbling infrastructure, insufficient halfway house capacity, and rising medical care costs for inmates.  Efforts to boost staffing levels have been hampered by uncompetitive pay rates in urban areas and a scarcity of workers in rural locations.  Compounding these issues, the Department of Government Efficiency (DOGE) has implemented a cost-cutting initiative, offering employees eight-month severance packages to voluntarily resign, creating an atmosphere of uncertainty and making recruitment even more challenging....

The departure of Colette Peters and her senior team leaves a critical leadership gap, providing an opportunity for the next director to bring in new personnel and potentially reshape the agency.  However, based on previous actions by the Trump administration, significant policy shifts are anticipated, which could further disrupt the already unstable environment within the BOP.

Attorney General Pam Bondi has acknowledged the urgency of the situation, declaring that addressing issues within the BOP is a top priority. Bondi has also pledged to fully implement the First Step Act, aiming to resolve the inconsistencies that have plagued the law’s application.  However, in the absence of a permanent director, her office has been issuing memos directly to frontline staff, leading to confusion and further uncertainty.  Those case managers, the ones who are the face of the agency to the prisoners, are often not consistent in the implementation of laws like the First Step Act because the policy is often ambiguous.  Leadership will have to take control of the narrative and assure that the prisoners are getting what Congress promised them under the law.

"State Constitutional Prohibitions against Unnecessary Rigor in Arrest and Confinement"

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

Clauses in five state constitutions prohibit treating people who are arrested or confined with “unnecessary rigor.” Decades ago, scholars concluded that history could teach us very little about these clauses.  Now with the power of digitized records and text-recognition technology, this Article reveals that “unnecessary rigor” was a recognized phrase with deep historical roots.  Courts, meanwhile, have been silent about the unnecessary rigor clauses in two states, and have offered divergent interpretations about the clauses in other states.  Jurisprudence has been limited by the missing historical record and the fact that “unnecessary rigor” does not appear in our modern vernacular, making a plain textual reading challenging.  The trove of historic sources presented in the Article suggest that state courts have interpreted the unnecessary rigor clauses too narrowly.

The Article argues that the animating principle of the unnecessary rigor clause is to protect human dignity against overzealous use of power in state custody, the context in which state power over the individual is at its apex.  To check overzealous state power in this special context, the clause requires all rigor — all rigidity and harshness — to be justified by necessity.  Excessive mandatory sentences, prolonged solitary confinement, failure to provide needed medical treatment, and unduly restrictive visitation policies are just a few examples of practices that can violate this animating principle.

Catching up with some roundng up of sentencing news and commentary

For a host of reasons, I have already concluded that it is essentially impossible for me to keep up with, let alone blog about, all the notable and newsy criminal justice and sentencing stories giving 2025 quite a start.  Consequently, a holiday Monday seems lik a fitting time for an abridged round-up to catch up on just some items recently catching my eye:

From the Atlanta Journal-Constitution, "Judge denies Georgia prisoner’s bid for death by firing squad"

From Cal Matters, "People are getting arrested under California’s new tough-on-crime law. Some counties aren’t ready"

From Crime & Consequences, "The Effectiveness of Rehabilitation Programs: Do they really work?"

From Harvard Magazine, "Cruel and Unjust: How the Supreme Court turned the failed war on crime into a war on liberty"

From the Manhattan Institute, "Why 'Rehabilitating' Repeat Criminal Offenders Often Fails"

From Reason.com, "North Dakota's 'Truth-in-Sentencing' Bill Could Cost More Than $250 Million"

From Stateline, "States debate prison spending as needs grow but budgets tighten"

From Verdict, "Whether or Not Ohio Ever Carries Out Another Execution Will Help Shape the Death Penalty’s Fate Across the Nation"

From the Wall Street Journal, "Jan. 6 Rioters Argue Pardons Apply to Charges Including Murder Plot, Child Porn"

From The Wrap, "Elizabeth Holmes Says Her New ‘Life’s Work’ Is Criminal Justice Reform, Intends to Resume Biotech Career"

Might five US states complete six executions in March 2025?

This new USA Today piece highlights that a trio of states that have not conducted many executions recently are scheduled to carry out death sentences next month:

Louisiana's execution of Christopher Sepulvado on March 17 would mark the end of a 15-year break in executions in the state, which plans to use nitrogen gas.  Arizona's execution of Aaron Gunches on March 19 would be the first in the state since 2022, when the state struggled to carry out three executions.  Meanwhile South Carolina is set to execute its fourth inmate since September, when the state reinstated the practice after a 13-year pause.

In addition, accourding to the Death Penalty Information Center's Upcoming Executions page, Oklahoma and Texas have an execution scheduled in March, and Louisiana actually two executions scheduled on back-to-back days in mid-March.

If all six of these scheduled executions go forward, March 2025 will have more executions completed in the US than in over a decade.  The last month with six executions, based on my scan of the DPIC's execution database, was back in January 2015.  And if all ssx scheduled execution are completed, the US will have completed as many executions in the first three months of 2025 as it did in all of 2021 (which set a modern historic low for US executions in one year). 

After fairly steady declines in the number of yearly executions in the 2000s and and 2010s, the 2020s have so far seen a notable (though still modest) uptick in yearly executions since the modern low in 2021.  Time (and litigation) will tell if that trend will continue in 2025 and beyond.