Tuesday, September 20, 2022

District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional

A few months ago, in a series of posts right after the Supreme Court's big Second Amendment decision Bruen (basics here), I suggested that a number of broad federal criminal firearm prohibitions might be subject to new constitutional challenges.  Specifically, I focused on how the Bruen court's recasting of Second Amendment analysis might impact the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1) and the federal drug-user-in-possession statute, 18 U.S.C. § 922(g)(3) (see posts linked below).  Interestingly, I did not even think about how Bruen might impact another federal firearm prohibition provision, 18 U.S.C. § 922(n), which criminalizes a person under indictment from receiving a firearm. Yesterday, as detailed in this AP article, a federal district court in Texas decided that Bruen renders § 922(n) unconstitutional:

A U.S. law banning those under felony indictments from buying guns is unconstitutional, a federal judge in West Texas ruled Monday.  U.S. District Judge David Counts, whom then-President Donald Trump appointed to the federal bench, dismissed a federal indictment against Jose Gomez Quiroz that had charged him under the federal ban....

In a 25-page opinion filed in Pecos, Texas, Counts acknowledged “this case’s real-world consequences — certainly valid public policy and safety concerns exist.”  However, he said a Supreme Court ruling this summer in a challenge brought by the New York Rifle & Pistol Association “framed those concerns solely as a historical analysis.”

“Although not exhaustive, the Court’s historical survey finds little evidence that ... (the federal ban) — which prohibits those under felony indictment from obtaining a firearm — aligns with this Nation’s historical tradition.”

Hence, he ruled the ban unconstitutional as the “Second Amendment is not a ’second class right,” as noted in a 2008 Supreme Court ruling.  ”No longer can courts balance away a constitutional right,” Counts wrote.  After the New York case, “the Government must prove that laws regulating conduct covered by the Second Amendment’s plain text align with this Nation’s historical tradition.  The Government does not meet that burden.”

The full 25-page ruling in US v. Quiroz, PE:22-CR-00104-DC (W.D. Tex. Sept. 19, 2022), is available at this link.  The full opinion is worth a full read, in part for a bits of west Texas flair such as this line: "Some feel that a grand jury could indict a [burrito] if asked to do so." 

Some prior related posts:

September 20, 2022 in Collateral consequences, Gun policy and sentencing, Scope of Imprisonment | Permalink | Comments (15)

Thursday, August 04, 2022

Will SCOTUS ruling in Bruen function to "defund the police" in order to fund government gun-law lawyers?

The question in the title of this post was my reaction to a particular quote by a gun control advocate in this notable new AP article about all the litigation following the Supreme Court's big Second Amendment ruling in Bruen earlier this summer.  The AP piece is headlined "After Supreme Court ruling, it’s open season on US gun laws," and here are excerpts (with the quote highlighted):

The Supreme Court ruling expanding gun rights threatens to upend firearms restrictions across the country as activists wage court battles over everything from bans on AR-15-style guns to age limits.....  “The gun rights movement has been given a weapon of mass destruction, and it will annihilate approximately 75% of the gun laws eventually,” said Evan Nappen, a New Jersey gun rights attorney.

The court battles come as the Biden administration and police departments across the U.S. struggle to combat a surge in violent crime and mass shootings, including several high-profile killings carried out by suspects who purchased their guns legally. And given the sheer number of cases now working through the courts, a lot more time will be spent in courtrooms no matter who wins.   “We will see a lot of tax dollars and government resources that should be used to stop gun crime being used to defend gun laws that are lifesaving and wildly popular,” said Jonathan Lowry, chief counsel and vice president at Brady, the gun control group....

In its New York ruling, the high court’s conservative majority also changed a test lower courts had used for evaluating challenges to gun laws.  Judges should no longer consider whether the law serves public interests like enhancing public safety, the opinion authored by Justice Clarence Thomas said. Instead, they should only weigh whether the law is “consistent with the Second Amendment’s text and historical understanding.”

“Basically, the Supreme Court has given an invitation for the gun lobby to file lawsuits against virtually every gun law in America,” Lowry said....

The ruling also has come up in challenges to restrictions on gun possession for 18- to 20-year-olds in Texas and Pennsylvania. And it has been cited in a case challenging a federal ban on gun possession for people convicted of nonviolent crimes punishable by more than a year behind bars, as well as a prohibition on concealed guns on the subway in Washington, D.C.  In addition, a gun rights group is suing Colorado over the state’s 2013 ban on magazines that hold more than 15 rounds, saying the high court ruling reinforces the group’s argument that it infringes on Second Amendment rights. And the ruling has public defenders in New York City asking judges to drop gun possession cases.

Not all those lawsuits will necessarily be successful. The Texas attorney general, for example, argues the Supreme Court ruling doesn’t affect the state’s age limit law, and more state and local governments can certainly defend their gun laws as being in line with U.S. history.  Adam Skaggs, chief counsel and policy director at the Giffords Law Center to Prevent Gun Violence, predicted that when the dust settles, only laws “along the margins” will eventually be struck down. “Most judges are going to see these for what they are, which is overreaching and lacking in any merit,” he said.

Just as we saw after prior big Second Amendment rulings in Heller and McDonald, it seems most likely that most existing gun control laws will eventually be upheld by lower courts (even though I think the Bruen majority opinion ought to be read as a strong signal that many more broad  gun laws ought to be deemed constitutionally suspect).  But this AP article highlights the reality that Bruen is sure to lead to a whole lot more time and money being spent on a whole lot more court challenges to a whole lot more existing gun laws and regulations.  I seriously doubt that the resources to be spent on all this Second Amendment litigation will come directly from the budgets for police, but I do think it sensible to expect that more time spent by government lawyers and others trying to defend the constitutionality of various laws likely means, as a practical matter, somewhat less time spent by by government lawyers and others vigorously enforcing these and other laws.

(On a somewhat related front, Damon Root at Reason.com has this notable post fully titled "The New York Times Is Surprised To Find Public Defenders Championing the Second Amendment: Yet the civil rights movement has long had a gun rights component.")

 Prior recent related posts:

August 4, 2022 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (0)

Thursday, July 28, 2022

Latest CCJ accounting of crime trends shows good news and bad news for first half of 2022

The Council on Criminal Justice (CCJ) is continuing to do important and timely work on modern crime trends through an on-going series of reports under the heading "Pandemic, Social Unrest, and Crime in U.S. Cities."  The latest version of this report, titled "Pandemic, Social Unrest, and Crime in U.S. Cities: Mid-End 2021 Update," was just released this week and is flagged in this new CCJ press release.  Here is an excerpt:

Murders and gun assaults in major American cities fell slightly during the first half of 2022, while robberies and some property offenses posted double-digit increases, according to a new analysis of crime trends released today by the Council on Criminal Justice (CCJ).

Examining homicides in 23 cities that make data readily available, the study found that the number of murders in the first half of the year dipped by 2% compared to the first half of 2021 (a decrease of 54 homicides in those cities). Gun assaults also fell, by 6%, during the first six months of this year compared to the same timeframe last year, while overall aggravated assault counts rose 4%. Robbery jumped by 19%....

In other findings, trends in most property crimes reversed from the first two years of the pandemic.  Residential burglaries (+6%), nonresidential burglaries (+8%), and larcenies (+20%) all rose in the first half of 2022.  Motor vehicle thefts increased (+15%) but that trend began during the early months of the pandemic.  The number of drug offenses fell in the first half of 2022 (-7%), continuing earlier pandemic patterns.

This CCJ webpage provides a link to the full report and a bit full overview of the report's methodology and key findings.  One can find plenty of heartening and disheartening data in the graphs and other information in this full report.  The recent decline in homicides and gun assaults still leave us a long way from the lower pre-pandemic rates of these harmful crime.  But the recent uptick in various property crimes still leave us well below the higher pre-pandemic rates of these crimes.  And there is still an extraordinary diversity of of crime patterns in cities large and small throughout the US.

July 28, 2022 in Gun policy and sentencing, National and State Crime Data | Permalink | Comments (0)

Monday, July 18, 2022

Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement

I noted in this post last week the new report from the US Sentencing Commission titled "What Do Federal Firearms Offenses Really Look Like?".  Following up on that report, Jacob Sullum has this interesting post at Reason.com headlined "A New Report Casts Doubt on the Assumption That Gun Law Violators Are a Public Menace: The vast majority of federal firearm offenses involve illegal possession, often without aggravating conduct or a history of violence."  I recommend that post in full, and here are excerpts (with links from the original):

new report on federal firearm offenses shows that the vast majority involve illegal possession, often without aggravating circumstances or a history of violence. The data undermine the assumption that people who violate gun laws are predatory criminals who pose a serious threat to public safety. They also highlight the racially disproportionate impact of such laws, which is especially troubling given their excessive breadth....

[T]he federal prohibition of gun possession by people with felony records (technically, people convicted of crimes punishable by more than a year of incarceration) is a lifetime ban except in rare cases where people manage to have their Second Amendment rights restored.

That policy, which threatens violators with up to 10 years in prison, is hard to justify unless you assume that people convicted of violent crimes cannot be rehabilitated and do not change their ways as they mature.  That assumption does not seem reasonable in light of research indicating that recidivism declines sharply with age.  Yet federal law is based on the premise that, say, a man convicted of assault in his early 20s can never be trusted with a gun, even if he stays out of trouble for decades.  Because of that youthful crime, he forever loses the right to armed self-defense.

Furthermore, the USSC's numbers indicate that two-fifths of firearm offenders had never been convicted of a violent crime.  Many prior convictions involved drug trafficking (31.6 percent) or previous weapon offenses (44.2 percent). Five percent of the defendants were disqualified from owning a gun because they were illegal drug users.  If a decades-old assault conviction seems like a thin pretext for permanently depriving someone of his constitutional rights, a decades-old drug conviction, involving conduct that violated no one's rights, seems even thinner.

The irrationality and injustice of this policy look even worse when you consider the demographics of federal firearm offenders. In FY 2021, 55 percent of them were black. A similar racial disparity is apparent at the state level. According to FBI data, African Americans, who represent about 14 percent of the U.S. population, accounted for 42 percent of arrests for weapon offenses in 2019....  If those restrictions made sense, you might dismiss the disparities, citing cross-racial differences in crime rates.  But those restrictions do not make sense, since they apply to millions of people who either are not currently dangerous or never were.

Importantly, as I have noted in some prior posts linked below, whether or not one agrees with Sullum's policy criticisms of broad federal firearm prohibitions, the constitutionality of some aspects of federal enforcement must be subject to new questions in the wake of the Supreme Court's recent Second Amendment ruling in Bruen.  As I noted in those posts, Bruen makes clear that to "justify its [gun] regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation."  And the historical record, as I have seen it, seems to make quite debatable whether broad bans on gun possession by non-violent offenders or drug users is "consistent with this Nation’s historical tradition of firearm regulation."

Prior recent related posts:

July 18, 2022 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (19)

Thursday, July 14, 2022

"What Do Federal Firearms Offenses Really Look Like?"

Cover_2022-firearmsThe title of this post is the title of this notable new US Sentencing Commission report. This relatively short report (only 46 pages) is summarized via this USSC webpage providing an "Overview" and a bunch of "Key Findings." Here is that overview and some of the key findings:

This report provides in-depth information on federal firearms offenders sentenced under the primary firearms guideline, §2K2.1. The Commission has published reports on various aspects of firearms offenses, including reports on armed career criminals, mandatory minimum penalties, and firearms offenders’ recidivism rates. The Commission’s prior research shows that firearms offenders are generally younger, have more extensive criminal history, and are more likely to commit a new crime than other offenders. The Commission’s previous research also shows that firearms offenders are more likely than other offenders to engage in violent criminal behavior. This publication continues the Commission’s work and provides detailed information about offenders sentenced under §2K2.1.

July 14, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Gun policy and sentencing | Permalink | Comments (0)

Wednesday, June 29, 2022

Is the Bruen Second Amendment ruling really "an important step to ending mass incarceration"?

As highlighted by prior posts here and here, I am intrigued by what Supreme Court's big Bruen ruling (basics here) will mean from Second Amendment jurisprudence and a variety of gun prohibitions.  But the question in the title of this post is prompted by this  Washington Post opinion piece by Aimee Carlisle, Christopher Smith and Michael Alexander Thomas which seems to have particular grand expectations about what Bruen could bring.  Here are excerpts:

As public defenders in New York City who represent people charged with illegal gun possession — people who, according to the New York City Police Department’s own data, are almost invariably Black and Brown — we see the majority’s decision in New York State Rifle & Pistol Association v. Bruen as an important step to ending mass incarceration.  That’s why we joined other public defenders in filing an amicus brief in the case asking the court to abandon its ivory tower and consider the law’s impact on those people who bear the brunt of New York’s gun laws — our clients....

Because possession of an unlicensed, loaded firearm is a “violent felony” under New York law, people with no criminal record who are convicted face a mandatory minimum sentence of 3½ years in prison; the maximum is 15 years.  They can lose their jobs, their housing, their children and, if they are not citizens, their right to live in the United States. All for carrying a gun without ever threatening anyone or pulling the trigger — conduct that in many states is not a crime at all....

Now, following the landmark ruling in Bruen, New York can no longer impose hurdles that render the Second Amendment a fiction.... The solution to gun violence is not imprisoning people simply for carrying a gun — and burdening them with the lifelong consequences that follow.  The only acceptable solution must reject racist intent and impact at every stage.  We must break our addiction to mass incarceration.

The next steps are clear.  Now that the Supreme Court has spoken, prosecutors must dismiss all gun cases that punish people for engaging in constitutionally protected activity and free them from jail.  As state lawmakers weigh their legislative response to the decision, we hope they will finally safeguard New Yorkers’ right to keep and bear arms and create a system free of racism.

I always eager to see our laws move away, in any and every possible way, from unnecessary and excessive incarceration.  And I am hopeful that any and all persons now incarcerated based on criminal laws that Bruen makes constitutional will swiftly get justice pursuant to their constitutional rights.  But there is a long history of legislators, prosecutors and others often working quite hard to restrict which defendants get retroactive relief from major Supreme Court ruling and to find new ways to criminalize a broad swatch of disfavored conduct.  Though Bruen may end up having lots of echoes, I am not certainly expecting it to make a real dent in our nation's incarceration levels.  

Prior recent related posts:

June 29, 2022 in Gun policy and sentencing, Race, Class, and Gender, Scope of Imprisonment, Second Amendment issues, Who Sentences | Permalink | Comments (0)

Monday, June 27, 2022

Lots of GVRs based on Taylor limiting "crime of violence" for applying 924(c) sentence enhancement

As night follows day, it regularly follows after a significant new Supreme Court decision limiting the reach of a federal criminal statute that a subsequent Supreme Court order list grants, vacates and remands (GVRs) a number of cases "for further consideration in light of" the new decision.  In this morning's order list, the Supreme Court's 7-2 decision last week in US v. Taylor, No. 20–1459 (S. Ct. June 21, 2022) (available here), provides the basis for twenty GVRs.

Because Taylor limited the reach of what serves as a "crime of violence" under 18 U.S.C. § 924(c)(3)(A), a statute which impacts whether and when an "individual may face a second felony conviction and years or decades" of additional mandatory imprisonment for having a gun involved in the commission of certain offenses (basics here), I suspect there will be future Taylor GVRs and likely lots of other echoes from the decision.  

Especially in the wake of the Supreme Court's high-profile ruling in Bruen changing the jurisprudence of the Second Amendment (basics here, questions here and here), it is interesting to note that two big wins for criminal defendants this SCOTUS Term came in cases limiting the reach of federal criminal statutes imposing severe mandatory punishments for gun-related offenses.  Though Taylor and Wooden (basics here, analysis here) will not get nearly as much attention as Bruen, for certain folks they will prove even more important.

June 27, 2022 in Gun policy and sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, June 24, 2022

Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?

In this post yesterday, I wondered "Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen?"  That question was prompted by the fact that the majority opinion in the Supreme Court's big Second Amendment case, Bruen (basics here), seemed to reject lots of recent lower court rulings and jurisprudence regarding the application of the Second Amendment.  Lower courts have, prior to Bruen, generally rejected Second Amendment attacks on federal law's broad criminalization of any felons possessing any guns.  But Bruen makes clear that to "justify its [gun] regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation."

Because the broad federal felon-in-possession statute, 18 U.S.C. § 922(g)(1), is applied many thousands of times each year, I am expecting a robust new round of litigation on that issue as to whether and when felon dispossession is "consistent with this Nation’s historical tradition of firearm regulation."  But here I want to flag another notably broad provision of federal firearms law, though one probably unlikely to get nearly the same attention.  Specifically, 18 U.S.C. § 922(g)(3), categorically criminalizes any gun possession by anyone who is an "unlawful user of or addicted to any controlled substance."  In an era in which marijuana use is legal for medical or recreational use in the vast majority of states but still is federal prohibited, this broad federal criminal "unlawful user" gun dispossession statute technically applies to dispossess tens of millions of Americans.  As a matter of policy and practice, I sense very few people get actually federally prosecuted and sentenced under just 922(g)(3) even for very serious and dangerous drug use, but it certainly happens sometimes.

Notably, more than a few states also have laws criminalizing gun possession by those his drug use history, and some even extend to users of legal drugs (including alcohol).  As one notable example, my state of Ohio, via Ohio Revised Code § 2923.13, prohibits knowingly having any firearm if one "is drug dependent, in danger of drug dependence, or a chronic alcoholic."  Arguably, anyone prescribed and using Oxycotin is "in danger of drug dependence," though again I do not think these kinds of laws in Ohio (or in other states) tend to be broadly enforced.  Still, these laws probably do get used as a basis refuse to issues some firearm licenses (see generally "Blowing Smoke at the Second Amendment"). 

Whatever the policy or practical virtues or vices of broad drug user gun dispossession laws, their constitutional status would seem subject to new questions thanks to Bruen.  The federal firearm prohibition for anyone who is an "unlawful user of or addicted to any controlled substance" has been upheld through various balancing tests in lower courts stressing the important government interest in restricting gun access to potentially dangerous individuals.  But, now, thanks to Bruen, such a regulation's "important interest" is not what is key for Second Amendment interpretation, "rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation."

I am not legal historian, but I know enough about drug law history to know that there were very few criminal prohibitions on drug use at the time of the ratification of the Second Amendment.  Notably, there were some localities and even a state (Maine) embracing alcohol prohibition before and into the Civil War era, but I have no sense of how various early temperance laws may have interacted with gun regulations at that time.  I do surmise, from reading then-Judge Amy Coney Barrett's dissent in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019), that history suggests "founding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety."  Perhaps broad drug user gun dispossession statutes could be justified on that ground, but I have a very hard time viewing modern users of medical marijuana consistent with state law as analogous to those groups considered categorically dangerous in the founding era.

As suggested before, I expect to see a lot more litigation over broad felon-in-possession criminal laws than over broad drug user gun dispossession statutes.  Nevertheless, I think this is another interesting area of Second Amendment law that seemed reasonably settled before Bruen and now may be up for new (historical) debate.

Prior recent related posts:

June 24, 2022 in Gun policy and sentencing, Offense Characteristics, Second Amendment issues, Sentences Reconsidered | Permalink | Comments (6)

Thursday, June 23, 2022

Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen?

I am still working my way through the Supreme Court's various opinions in today's big Second Amendment case, Bruen (basics here). And, because I am not a Second Amendment expert, my first-cut reactions to Bruen may not be worth much.  But, since the majority opinion in Bruen seems to reject lots of recent lower court rulings regarding the application of the Second Amendment, I cannot help but start wondering now if all broad felon-in-possession criminal statutes are constitutionally suspect.

Lower courts have largely upheld felon-in-possession criminal prohibitions even since Heller decided the Second Amendment provided for an individual right. But I read Part II of the Court's opinion in Bruen as rejecting much lower-court jurisprudence since Heller and creating a new textual and historical approach for the consideration of Second Amendment claims:

In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.  To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.  Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”...

Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms....

We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”  

American citizens with felony records are surely part of "the people" covered by the plain text of the Second Amendment, and so their conduct in possessing a firearms would seem presumptively protected.  Turning then to "the Nation’s historical tradition," I surmise from various academic articles (see here and here; see also here) that only dangerous and violent people, not all felons, were historically disallowed to have firearms.  As one of these articles puts it: "there is no historical justification for completely and forever depriving peaceable citizens — even nonviolent felons — of the right to keep and bear arms." 

 But one need not take an academic's word for this notion that there is not historical tradition for dispossessing all felons. Then-Judge, now Justice Amy Coney Barrett made this point quite effectively when dissenting in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019). Here is the start of her lengthy dissent in a case upholding application of the federal felon-in-possession ban to a nonviolent felon:

History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.  But that power extends only to people who are dangerous.  Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons.  Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun.  In 1791 — and for well more than a century afterward — legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.

Notably, the Bruen opinion for the Court makes repeated reference to the petitioners as "law-abiding" individuals. But I am not sure that dicta alone could or should undermine what Second Amendment's plain text and historical tradition now seem to suggest, namely that governments are on very shaky constitutional ground if and whenever they seek to criminalize gun possession by nonviolent (or "non-dangerous") persons with criminal records.

June 23, 2022 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (33)

By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements

The Supreme Court this morning handed down its much-anticipated Second Amendment ruling in New York State Rifle & Pistol Assn., Inc. v. Bruen, No. 20-843 (S. Ct. June 23, 2022) (available here). Lots of Justices had lots to say in the first significant Second Amendment ruling in more than a decade:

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. ALITO, J., filed a concurring opinion. KAVANAUGH, J., filed a concurring opinion, in which ROBERTS, C. J., joined. BARRETT, J., filed a concurring opinion. BREYER, J., filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined.

Here is how Justice Thomas's opinion for the Court gets started:

In District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. Chicago, 561 U.S. 742 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.  In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense.  We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.

The parties nevertheless dispute whether New York’s licensing regime respects the constitutional right to carry handguns publicly for self-defense.  In 43 States, the government issues licenses to carry based on objective criteria. But in six States, including New York, the government further conditions issuance of a license to carry on a citizen’s showing of some additional special need.  Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution.

Because Bruen is lengthy, I am going to need some time to see if there could be considerable criminal justice echoes from what the Court has to say here.  But, as highlighted in this prior post, a group of defense attorneys filed an amicus brief in Bruen highlighting that their clients were greatly impacted by NY gun laws and that, in 2020, "Black people made up 18% of New York’s population,[but] accounted for 78% of the state’s felony gun possession cases."   I wonder how many gun defendants, not only in New York but elsewhere, might now have new arguments to make about their prosecution and sentencing.

June 23, 2022 in Gun policy and sentencing, Offense Characteristics, Second Amendment issues, Who Sentences | Permalink | Comments (4)

Tuesday, June 21, 2022

Ruling 7-2 in favor of federal defendant, Supreme Court in Taylor rejects broad reading of "crime of violence" for applying 924(c) sentence enhancement

The Supreme Court this morning handed down an opinion in one of the criminal sentencing cases still on its docket, US v. Taylor, No. 20–1459 (S. Ct. June 21, 2022) (available here).  The opinion for the Court is a win for the federal defendant and was authored by Justice Gorsuch.  Here is how that opinion starts and ends:

Does attempted Hobbs Act robbery qualify as a “crime of violence” under 18 U. S. C. § 924(c)(3)(A)?  The answer matters because a person convicted of attempted Hobbs Act robbery alone normally faces up to 20 years in prison.  But if that offense qualifies as a “crime of violence” under § 924(c)(3)(A), the same individual may face a second felony conviction and years or decades of further imprisonment....

The government quickly abandons the legal theory it advanced in the courts of appeals — and neither of the two new options it auditions before us begins to fill the void.  In § 924(c)(3)(A), Congress did not condition long prison terms on an abstract judicial inquiry into whether and to what degree this or that crime poses a risk to community peace and safety.  Nor did it mandate an empirical inquiry into how crimes are usually committed, let alone impose a burden on the defendant to present proof about the government’s own prosecutorial habits.

Congress tasked the courts with a much more straightforward job: Look at the elements of the underlying crime and ask whether they require the government to prove the use, attempted use, or threatened use of force.  Following that direction in this case, the Fourth Circuit correctly recognized that, to convict a defendant of attempted Hobbs Act robbery, the government does not have to prove any of those things.  Accordingly, Mr. Taylor may face up to 20 years in prison for violating the Hobbs Act.  But he may not be lawfully convicted and sentenced under § 924(c) to still another decade in federal prison.  The judgment of the Court of Appeals is Affirmed.

Justice Thomas issued a solo dissent that is as long as the opinion of the Court. It starts this way:

Justin Eugene Taylor and an accomplice pulled a gun on a fellow drug dealer as they tried to rob him.  During the attempted robbery, the victim was shot and killed.  Taylor pleaded guilty to using a firearm during an attempted Hobbs Act robbery, which he conceded was a “crime of violence” under 18 U. S. C. §924(c)(3).  Taylor made that concession because threatening to shoot someone during a robbery is undoubtedly a violent act.  Yet, the Court holds that Taylor did not actually commit a “crime of violence” because a hypothetical defendant — the Court calls him “Adam” — could have been convicted of attempting to commit Hobbs Act robbery without using, attempting to use, or threatening to use physical force.  Ante, at 5; see §924(c)(3)(A).

This holding exemplifies just how this Court’s “categorical approach” has led the Federal Judiciary on a “journey Through the Looking Glass,” during which we have found many “strange things.”  L. Carroll, Alice in Wonderland and Through the Looking Glass 227 (J. Messner ed. 1982).  Rather than continue this 30-year excursion into the absurd, I would hold Taylor accountable for what he actually did and uphold his conviction.  Accordingly, I respectfully dissent

Justice Alito also issued a (shorter) solo dissent, and it concludes this way:

I believe that the Court’s approach and ultimate holding in this case are misguided. I would hold that Taylor committed a “crime of violence” within the meaning of §924(c)(3)(A) and reverse the judgment of the Fourth Circuit below.  But there is a silver lining in the majority opinion. Because the Court assumes — and does not hold — that alternative elements do not qualify as independent elements of a crime for purposes of applying §924(c)(3)(A), the Government remains free to advance the correct interpretation of that provision in a future case.  For my purposes, however, the text of the statute is clear enough to support reversal here and now.  As a result, I respectfully dissent.

June 21, 2022 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, May 25, 2022

So many depressing stories in a country awash with so many guns

Another week brings news of another horrific mass shooting in the USA, this one ever so depressing because its victims were so many young children murdered at an elementary school.  And, sadly, mass shootings are only one component of modern depressing gun realities in the United States: recent years have brought increases in gun homicides as gun sales have continued to spike.  While recent homicide numbers would seem to undercut narratives that more guns mean more safety, I have come to doubt that any horrible mass shooting or any detailed data are likely to alter our nation's current gun policies or politics.

That said, particularly with a major Supreme Court Second Amendment ruling likely in the works, I still find data about how existing gun laws are criminally enforced to be noteworthy.  And this data can also be quite depressing, as evidenced by this new lengthy local article headlined "There’s a large racial disparity in federal gun prosecutions in Missouri, data shows."  Here are excerpts:

[Darrell] Hargraves [in 2018] became one of more than 3,600 people convicted between 2015 and 2021 for federal firearm possession in Missouri, which outranks the rest of the nation for its rate of prosecution of such crimes.

In an analysis of federal sentencing and crime data, The Kansas City Star found Black people were disproportionately convicted for illegally carrying firearms compared to white people.  They were also sentenced more harshly.

In the Eastern District, a federal court jurisdiction that includes St. Louis, 81% of those convicted of illegal firearm possession in the past seven years were Black. In the Western District, which includes Kansas City, 54% were Black. Together the two districts cover the entire state of Missouri.  The state’s population is 12% Black.

In the Western District in 2020, Black people were also more than twice as likely to receive sentences above the recommended guidelines for firearm possession compared to white people, according to data from the United States Sentencing Commission.

Don Ledford, a spokesman for the U.S. Attorney’s Office in the Western District, said the office did not have demographic information on gun possession convictions.  “Race is not a factor in prosecutorial decision making or sentencing recommendations,” Ledford said.  “Therefore, we don’t track defendants or cases on that criteria.”

But researchers, advocates and community members say when it comes to carrying guns, Black people are treated differently as a result of the structure of the state’s gun policies and uneven enforcement.  “There was certainly a racial politics on who got to carry a gun ... There were African American men who tried to open carry and would get attacked or shot,” said Dr. Jonathan Metzl, author of “Dying of Whiteness” and director of the Center for Medicine, Health, and Society at Vanderbilt University.  “They’re seen as criminals.”...

Hargraves said he wants to see the community be safer. “I do understand there are individuals that regardless of race are harming people,” he said. “My problem lies … in unfairness, the unfairness in sentencing, the unfairness in prison, the unfairness in not assessing the overall situation.”

The Eastern and Western districts of Missouri ranked first and sixth, respectively, for the number of people incarcerated for illegal firearm possession in any federal district in 2021.  The year before, they ranked first and third.

The rate of firearm possession began to noticeably increase in Missouri’s federal districts in the early days of Project Safe Neighborhood, a U.S. Department of Justice program that began in 2001, said Ken Novak, a criminal justice professor at the University of Missouri-Kansas City.  It brought together federal, state and local law enforcement officials, prosecutors, community leaders, and other stakeholders to identify the most serious violent crime problems in each region. In Missouri’s federal districts, that was gun violence and homicides, said Novak.  That led to more federal prosecutions for gun violations....

However there is little evidence to suggest incarcerating people for firearm possession helps curb violent crime or targets those who perpetrate gun violence in their communities, according to research by legal experts and federal defenders.  In Missouri, the majority of violent crimes are committed by people under the age of 30, according to data from the FBI’s Uniform Crime Reporting program.  Meanwhile, 63% of those convicted for federal firearm possession in the state are 30 or older.

May 25, 2022 in Gun policy and sentencing, Race, Class, and Gender | Permalink | Comments (9)

Saturday, March 12, 2022

Some first-cut musings on US v. Wooden, the latest SCOTUS effort to make ACCA less wacky

The US Supreme Court started the past work week by handing down one opinion, a sentencing win for a federal criminal defendant in US v. Wooden, No. 20-5279 (S. Ct. March 7, 2022) (available here).  Though all nine Justices voted in favor of the defendant, there were five opinions (with Justice Kagan writing for the Court, and four concurrences).  I could rattle off a few dozen thoughts about all the opinions, but I will close out the week with just these five musings, presented roughly from the general to the specific:

1.  Sentencing at SCOTUS: By various metrics the current Supreme Court is extremely conservative, and yet every single Justice voted in favor of William Wooden on a statutory issue after a majority of circuit courts had sided with the government.  In the Blakely, Booker, Roper, Gall, Kimbrough, Graham era, I had gotten in the habit of calling SCOTUS the most pro-defendant appellate court in the nation on sentencing issues.  I no longer think that is an accurate description, but Wooden is still a very important reminder that certain sentencing issues can and will garner votes from an array of Justices across the jurisprudential spectrum.

2.  ACCA in application is ridiculous: The idea behind the Armed Career Criminal Act (ACCA) makes sense: give longer sentences to dangerous people with guns who have a really bad criminal history.  But Wooden is also a reminder how crazy this statute functions in operation.  The actual offense behavior is largely irrelevant — William Wooden merely had a gun in his home for self protection, some have been tripped by merely possessing shotgun shells — and figuring out what criminal history triggers a 15-year mandatory minimum (as opposed to a 10-year maximum) is often a parlor game of such nonsensical semantics it would make Franz Kafka blush.

3.  Justices as magistrates with no majesty: Though a few concurrences had some flair (see below), the opinion of the Court and some others felt technocratic, resolving only this one case without having much to say about ACCA or any other issues.  Some may praise an opinion with so little majesty as a model of judicial modesty, but Justice Gorsuch's concurrence highlighted that not much really got resolved even as the Justices remained modest.  More generally, though the Wooden case implicates issues ranging from violent crimes to mandatory minimums, from Second Amendment rights to repeat offenders, few Justices wanted to do much more than parse definitions, hypos and legislative history.  Perhaps saying so little is how this case came out unanimously, but label me uninspired.

4.  Justice Kavanaugh as a mens rea maven: I have been wondering what criminal justice issues might be of particular interest and concern to Justice Kavanaugh, and his Wooden concurrence reveals he could develop into a mens rea maven.  Though his concurrence was mostly to push back against Justice Gorsuch's paean to the rule of lenity, Justice Kavanagh concludes by stressing his eagerness to "continue to vigorously apply (and where appropriate, extend) mens rea requirements" in statutory interpretation cases.  We might see more of what he means later this Term, as the pending case concerning doctors federally prosecuted for over-prescribing opioids turns on mens rea matters.  And litigants should be looking out for "appropriate" cases in which Justice Kavanaugh might be inclined to "extend" mens rea requirements.

5.  Justice Gorsuch as liberty lover: The US Constitution's preamble speaks of the document as a means to "secure the Blessings of Liberty to ourselves and our Posterity."   William Wooden, for possessing a gun in his home with his past criminal history, was punished with liberty deprivation for 15+ years in federal prison.  Only Justice Gorsuch mentions liberty in any of the many Wooden opinions, and he does so seven times.  Here are just a few choice mentions:

I was pleased that Justice Gorsuch, joined by Justice Sotomayor, stressed liberty and thus brought the opinions in the Wooden case to a somewhat more satisfying end.  And I hope some of these "liberty in the face of uncertainty" sentiments find future expression in the work of many judges and Justices.

Prior related posts:

March 12, 2022 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Tuesday, March 08, 2022

Rounding up some accounts of the latest ACCA wackiness in Wooden

I hope to find some time in the coming days to do some original commentary about the Supreme Court's unanimous ruling in US v. Wooden, No. 20-5279 (S. Ct. March 7, 2022) (available here).  I see interesting, telling and problematic aspects to all the opinion in the case, but for now I need to be content here to round up some of what others are saying:

From Law360, "'Night Of Crime' Burglar Is No Career Criminal, Justices Say"

From Slate, "Why All Nine Justices Overturned a Ludicrously Cruel Prison Sentence"

From SCOTUSBlog, "Perhaps defining an “occasion” is not so difficult after all"

From The Volokh Conspiracy, "Justices Spar Over How to Interpret the Armed Career Criminal Act"

March 8, 2022 in Gun policy and sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, March 07, 2022

SCOTUS rules unanimously in favor of defendant in latest Armed Career Criminal Act ruling

The US Supreme Court handed down one opinion this morning, and it is a win for a federal criminal defendant in US v. Wooden, No. 20-5279 (S. Ct. March 7, 2022) (available here).  Here is how Justice Kagan's opinion for the Court gets started:

In the course of one evening, William Dale Wooden burglarized ten units in a single storage facility. He later pleaded guilty, for that night’s work, to ten counts of burglary — one for each storage unit he had entered. Some two decades later, the courts below concluded that those convictions were enough to subject Wooden to enhanced criminal penalties under the Armed Career Criminal Act (ACCA).  That statute mandates a 15-year minimum sentence for unlawful gun possession when the offender has three or more prior convictions for violent felonies like burglary “committed on occasions different from one another.” 18 U.S.C. §924(e)(1).  The question presented is whether Wooden’s prior convictions were for offenses occurring on different occasions, as the lower courts held, because the burglary of each unit happened at a distinct point in time, rather than simultaneously.  The answer is no.  Convictions arising from a single criminal episode, in the way Wooden’s did, can count only once under ACCA.

Interestingly, this ruling also generated four distinct concurrences (some quite short, some longer). Because I need to be off-line most of the rest of today, I will not have a chance to comment on these opinions right away. But I hope commenters might help me try to map out how many hundreds (thousands?) of cases this ruling could impact.

March 7, 2022 in Gun policy and sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered | Permalink | Comments (13)

Tuesday, January 11, 2022

Still more data linking recent surge in gun sales to recent surge in murders

This new Atlantic piece, authored by Jeff Asher and Rob Arthur, provides yet another set of data points detailing the possible connection between an increase in gun purchases and a consequent increase in murders. The piece's full title summarizes its themes: "The Data Are Pointing to One Major Driver of America’s Murder Spike: A massive increase in gun sales in early 2020 seems to have contributed to the recent rise in homicides." Here are excerpts from the start and end of the piece:

After murders in the United States soared to more than 21,000 in 2020, researchers began searching for a definitive explanation why. Many factors may have contributed, such as a pandemic-driven loss of social programs and societal and policing changes after George Floyd’s murder. But one hypothesis is simpler, and perhaps has significant explanatory power: A massive increase in gun sales in early 2020 led to additional murders.

New data from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) suggest that that indeed may have been the case. According to the data, newly purchased weapons found their way into crimes much more quickly and often last year than in prior years. That seems to point to a definitive conclusion — that new guns led to more murders — but the data set cannot prove that just yet....

Right now, we know that gun sales rose dramatically starting in March 2020, and that murder—driven by gun murders—increased substantially a few months later. We have strong evidence that more people were carrying guns before murder went up in 2020, and the ATF data tell us that newly purchased firearms were used in more crimes than usual. It stands to reason that new guns helped feed 2020’s murder surge, though the data to confirm this conclusion remain agonizingly out of reach. The data aren’t perfect, but they’re strongly suggestive: More guns are behind America’s murder spike.

A few of many prior related posts:

January 11, 2022 in Gun policy and sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (1)

Thursday, December 09, 2021

More research to support notion that spike in gun sales contributed to spike in gun crimes

As detailed in a number of prior posts (some linked below), because guns crimes but not many other crimes have spiked since the start of the pandemic, I have figured the pandemic spike in gun sales likely had some role in our modern crime trends.  This new piece from The Trace, headlined "New Data Suggests a Connection Between Pandemic Gun Sales and Increased Violence," seems to provide further support for my (simplistic?) thinking here.  Here are excerpts:

In March 2020, as the first COVID-19 outbreaks rippled across the U.S., Americans flocked to gun stores.  In total, civilians purchased some 19 million firearms over the next nine months — shattering every annual sales record.  At the same time, shootings across the country soared, with dozens of cities setting grim records for homicides.

As the pandemic progressed, and gun sales continued to climb alongside shootings, researchers have puzzled over the connection between these two intersecting trends.  Was the surge in violent crime related to the uptick in guns sold last year? We may not get a definitive answer to that question for years, but fresh data from the Bureau of Alcohol, Tobacco, Firearms and Explosives provides some of the first evidence that a relationship exists.

ATF data shows that in 2020, police recovered almost twice as many guns with a short “time-to-crime” — in this case, guns recovered within a year of their purchase — than in 2019.  Law enforcement officials generally view a short time-to-crime as an indicator that a firearm was purchased with criminal intent, since a gun with a narrow window between sale and recovery is less likely to have changed hands.  Altogether, more than 87,000 such guns were recovered in 2020, almost double the previous high.  And almost 68,000 guns were recovered in 2020 with a time-to-crime of less than seven months (meaning they were less likely to have been purchased the previous year).

Put more plainly, thousands of guns purchased in 2020 were almost immediately used in crimes — some as soon as a day after their sale. That was the case of the 9mm Beretta pistol purchased by an Arlington man from Uncle Dan’s Pawn Shop and Jewelry in Dallas, according to police records.  Officers seized the gun from its owner during a drug arrest 24 hours later. In another example, a Laredo, Texas, man assaulted his mother, then opened fire on police with his Smith & Wesson M&P 15-22 rifle in July 2020.  The gun had been purchased at a Cabela’s in Ammon, Idaho, just three months earlier.

“Overall, I think we can say that the gun sale surge may have contributed to a surge in crime,” said Julia Schleimer, a researcher in the Violence Prevention Research Program at the University of California, Davis, after reviewing the ATF’s data....

Researchers interviewed for this story cautioned that the number of guns recovered and traced by law enforcement does not always indicate the amount of gun crime in a given year.  In other words, factors driving increases in the amount of short-time-crime guns in the ATF’s data may be separate from the factors contributing to gun violence.

Still, no sales bump compares to 2020, when gun buying soared to unprecedented heights, Schleimer said, substantially widening the pool of recently purchased guns that could potentially turn up at crime scenes....

Jim Bueermann, a former California police chief who serves as a senior fellow at the George Mason University Center for Evidence-Based Crime Policy, said that while the new data may not provide conclusive evidence of a causal relationship between gun sales and gun crime, it does signal the importance of additional exploration.  “Data like this asks more questions than it answers, but this is a clarion call for criminologists to conduct research in this space.”

A few of many prior related posts:

December 9, 2021 in Gun policy and sentencing, Impact of the coronavirus on criminal justice, National and State Crime Data | Permalink | Comments (6)

Monday, November 29, 2021

Could a SCOTUS Second Amendment ruling undercut onerous and disparate criminal enforcement of gun prohibitions?

I noted in this post back in August, as part of a preview of the major pending SCOTUS Second Amendment case, New York State Rifle & Pistol Association Inc. v. Corlett, the considerable racial disparities in modern criminal enforcement of gun prohibitions.  Helping me to detail how actual gun control laws are actually enforced in federal and state criminal justice systems was this interesting amicus brief filed by the Black Attorneys of Legal Aid caucus and lots of NY public defender offices.  Notably, some of the themes of this amicus brief have been carried forward by its authors and others via an array of interesting commentary this fall (listed here in chronological order):

Via SCOTUSblog, "We are public defenders. New York’s gun laws eviscerate our clients’ Second Amendment rights."

Via Inquest, "Second Class: For public defenders in New York, representing clients unjustly criminalized for gun possession is a matter of principle.  Now, they have the Supreme Court’s attention."

Via The Nation, "There’s No Second Amendment on the South Side of Chicago: Why public defenders are standing with the New York State Rifle and Pistol Association in the Supreme Court."

Via Slate, "A Criminal Justice Reformer’s Case for Looser Gun Laws: Public defenders have found common cause with the NRA at the Supreme Court."

I recommend all these pieces, which have too many interesting elements to highlight in a single blog post.  I will just here flag a few quotes from the new Slate piece, which is an interview with Sharone Mitchell Jr., the public defender from Chicago who authored the piece in The Nation.  

Our offense is called UUW, unlawful use of a weapon.  And there are different types of UUWs.  But the lowest-level felony, the Class 4 felony, 33 percent of the charges statewide come from 11 communities in Chicago, 11 communities in the entire state.   You look at the UUW numbers, you look at how it’s used in Chicago and how it’s used outside of Chicago — and you would think that guns only exist in Chicago.  And you would think guns only exist in a small number of communities.  And that’s not correct.  In other areas of the state, that’s just not the way they approach that situation....

We have this assumption that making things a felony disallows people from performing that act.  And I just haven’t been convinced of that.  At this point in Chicago, folks are not waiting for the government to tell them that they can carry.  And I think too often we overestimate the power of the criminal justice system to solve problems or fix the things that we need.  I think people are living under the assumption that because you’ve got this very complicated scheme for getting licensed, that means people aren’t going to carry. I think what it means is that people aren’t going to carry legally....

If you look at the population of Illinois prisons, there are more people in prison for weapons possession than there are for robbery.  There are more people in prison for weapon possession than there is for kidnapping, more than arson or burglary or DUI or forgery or vehicle hijacking or retail theft.  This is really becoming kind of the new war on drugs, where there’s a real problem, but our solution to the problem doesn’t actually fix the problem.  In fact, it creates way more problems.

A few prior related posts:

November 29, 2021 in Gun policy and sentencing, Offense Characteristics, Second Amendment issues | Permalink | Comments (11)

Thursday, November 18, 2021

Interesting split Ohio Supreme Court ruling at the intersection of collateral consequences, gun rights and victims' rights

The Ohio Supreme Court today handed down an interesting decision today in State ex rel. Suwalksi v. Peeler, No. 2021-Ohio-4061. (Oh. Nov. 18, 2021) (available here), in a case concerning collateral consequences, gun rights and victims' rights.  Chief Justice O'Connor authored the majority opinion in the case, which starts this way:

Appellant, Roy Ewing, was convicted in Warren County of misdemeanor domestic violence for assaulting his then-wife, appellee, Jamie Suwalski.  As a result of that conviction, federal law prohibits Ewing from possessing a firearm, see 18 U.S.C. 922(g)(9), unless, as relevant in this case, the domestic-violence offense is one for which Ewing “has had [his] civil rights restored” under Ohio law, 18 U.S.C. 921(a)(33)(B)(ii).  Ewing filed in the Warren County Court of Common Pleas an application under R.C. 2923.14 for relief from his federal firearms disability, and Judge Robert W. Peeler, a judge of that court, granted Ewing’s application and issued an order restoring his firearms rights.

Suwalski sought a writ of prohibition in the Twelfth District Court of Appeals, seeking to prevent Judge Peeler’s order from being effective and invoking Article I, Section 10a of the Ohio Constitution, also known as “Marsy’s Law.”  The court of appeals permitted Ewing to intervene.  The court of appeals granted the writ, holding that Judge Peeler lacked the judicial power to relieve Ewing of the federal firearms disability imposed by 18 U.S.C. 922(g)(9). 2020-Ohio-3233, 155 N.E.3d 47, ¶ 24.

We agree that a writ of prohibition is warranted, but our rationale for that conclusion differs from that of the court of appeals.  Because Suwalski has established the elements necessary for a writ of prohibition, we affirm the judgment of the court of appeals.

Justice Kennedy authored the dissent, which was joined by two other Justices and starts this way:

Article I, Section 10a of the Ohio Constitution, also known as “Marsy’s Law,” enumerates specific rights afforded to victims of crime, including the rights “to be treated with fairness and respect for the victim’s safety, dignity and privacy” and “to reasonable protection from the accused or any person acting on behalf of the accused.” Marsy’s Law permits a victim of a crime to “petition the court of appeals for the applicable district” to vindicate his or her enumerated rights.  Article I, Section 10a(B), Ohio Constitution.

Relying on Marsy’s Law, appellee, Jamie Suwalski, filed a complaint for a writ of prohibition in the Twelfth District Court of Appeals against Warren County Court of Common Pleas Judge Robert W. Peeler, asserting that he violated her rights under Marsy’s Law when he purported to relieve her ex-husband, appellant, Roy Ewing, of a federal firearms disability.  The court of appeals granted the writ. 2020-Ohio-3233, 155 N.E.3d 47, ¶ 24-25.  However, based on the plain language of the enumerated rights established in Marsy’s Law, the rights that Suwalski has asserted are not implicated in the underlying relief-from-disability matter.  Suwalski has not claimed to have been treated without fairness and respect for her safety in the matter, and Ewing is no longer an accused person.  Because she asserts no other grounds establishing a right to the relief that she seeks in prohibition, I would reverse the judgment of the Twelfth District and dismiss the action. Because the majority does not, I dissent.

November 18, 2021 in Collateral consequences, Gun policy and sentencing, Victims' Rights At Sentencing | Permalink | Comments (3)

Sunday, October 03, 2021

Wooden, SCOTUS on the ACCA, not so free and easy

The title of this post is my not-so-clever way of connecting the Supreme Court's new-Term opening case on the Armed Career Criminal Act to a depressing CSN&Y song.  The lyrics of the song "Wooden Ships" are only a bit more opaque than the language that SCOTUS has to sort out in Wooden v. US concerning the proper application of the severe sentencing mandatory minimum of the Armed Career Criminal Act.  Daniel Harawa at SCOTUSblog has a full preview of the case in this new post titled "What’s an “occasion”? Scope of Armed Career Criminal Act depends on the answer."  Here is an excerpt (with links from the original):

If you break into a storage facility and steal from 10 separate storage units, did you commit 10 offenses “on occasions different from one another”? The Supreme Court will answer this question in Wooden v. United States, yet another case concerning the scope of the Armed Career Criminal Act....

The federal government charged Wooden with being a felon in possession of a firearm — a crime for which the maximum punishment is 10 years’ imprisonment. The government also requested that Wooden be designated an armed career criminal under the Armed Career Criminal Act, in which case Wooden would be subject to a 15-year mandatory minimum.  To qualify as an armed career criminal, a defendant must have three prior “violent felony” or “serious drug offense” convictions.  Here, the government argued that Wooden’s 10 burglary convictions qualified as 10 “violent felonies” for ACCA purposes.  To constitute separate convictions under ACCA, the crimes must be “committed on occasions different from one another.”  Wooden argued that the 10 burglaries all occurred on the same “occasion,” and therefore counted for only one qualifying violent felony under ACCA.

The U.S. Court of Appeals for the 6th Circuit agreed with the government.  It held that the crimes were committed on separate “occasions” because Wooden “committed ten distinct acts of burglary.”  To the 6th Circuit, it was dispositive that “Wooden could not be in two (let alone ten) of [the storage units] at once.”  Much like the 6th Circuit, other circuits had held that crimes are committed on different “occasions” for ACCA purposes when they are committed “successively rather than simultaneously,” as in United States v. Carter, an 11th Circuit case.  Other circuits, however, looked beyond temporality and instead considered whether the crimes were committed under sufficiently different circumstances.  The 2nd Circuit, for instance, “distinguish[ed] between the defendant who simply commits several offenses in a connected chain of events and the defendant who … commits multiple crimes separated by substantial effort and reflection.” The Supreme Court granted certiorari to resolve this split.

Before the Supreme Court both Wooden and the government argue that ACCA’s structure, history, and purpose support their position.

October 3, 2021 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Monday, August 30, 2021

Timely new Northwestern University Law Review issue examines Second Amendment from many perspectives

Earlier this month I spotlighted in this post the considerable racial disparities that have been documented in the modern criminal enforcement of gun prohibitions.  I did so because,with the US Supreme Court taking up a major Second Amendment case in the coming Term with New York State Rifle & Pistol Association Inc. v. Corlett, I think it important to never lose sight of how gun control laws are actually enforced in federal and state criminal justice systems.

Against that backdrop, I was intrigued to see that this new Northwestern University Law Review issue is fully devoted to new Second Amendment scholarship, and I was pleased that this issue includes an article titled "The Second Amendment in a Carceral State" authored by Alice Ristroph.  Here is the abstract of this article:

Is an armed citizenry consistent with a carceral state?  Throughout the twentieth century, the Second Amendment cast no shadow on the U.S. Supreme Court as the Court crafted the constitutional doctrines that license America’s expansive criminal legal system.  Under the Court’s interpretation of the Fourth Amendment, the fact or mere possibility that an individual is armed can generate broad powers for police officers, including the power to disarm.  But since the Court embraced an individual right to bear arms in 2008, a few scholars and lower courts have begun to worry that this right contradicts contemporary understandings of police authority. 

In this Essay, I acknowledge these apparent doctrinal contradictions but argue that Fourth and Second Amendment doctrines actually share a common conceptual foundation: carceral political theory.  Carceral political theory divides people into “criminals” and “law-abiding citizens” and does so according to intuitions about natural criminality rather than through positive law.  The supposed distinction between the criminal and the law-abiding is used to rationalize unequal distributions of political power, social goods, and exposure to violence.  In the United States, the naturalized conception of criminality has long been racialized.  Unless we identify and reject the carceral assumptions that underlie both Fourth and Second Amendment doctrine, the new (or newly recognized) right to bear arms is likely to further exacerbate racial inequality in the United States.

August 30, 2021 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (0)

Tuesday, August 03, 2021

Spotlighting considerable racial disparities in modern criminal enforcement of gun prohibitions

I came across this notable recent commentary by Jeff Jacoby in the Boston Globe titled "The very racist history of gun control: The Second Amendment right to keep and bear arms is indispensable to Black equality."  The piece highlights some of the racialized history of gun control in the US, but it failed to discuss the important modern reality of racially disparities in criminal enforcement of gun prohibitions.  And with the US Supreme Court taking up a major Second Amendment case in the coming Term with New York State Rifle & Pistol Association Inc. v. Corlett, I think it important to spotlight how gun control laws are actually enforced in federal and state criminal justice systems.

We can start in New York because the SCOTUS case comes from that state and because the Black Attorneys of Legal Aid caucus and lots of NY public defender offices filed this interesting amicus brief to highlight how gun control enforcement actually operates:

[E]ach year, we represent hundreds of indigent people whom New York criminally charges for exercising their right to keep and bear arms. For our clients, New York’s licensing regime renders the Second Amendment a legal fiction.  Worse, virtually all our clients whom New York prosecutes for exercising their Second Amendment right are Black or Hispanic. And that is no accident. New York enacted its firearm licensing requirements to criminalize gun ownership by racial and ethnic minorities.  That remains the effect of its enforcement by police and prosecutors today.

The consequences for our clients are brutal.  New York police have stopped, questioned, and frisked our clients on the streets.  They have invaded our clients’ homes with guns drawn, terrifying them, their families, and their children.  They have forcibly removed our clients from their homes and communities and abandoned them in dirty and violent jails and prisons for days, weeks, months, and years.  They have deprived our clients of their jobs, children, livelihoods, and ability to live in this country.  And they have branded our clients as “criminals” and “violent felons” for life.  They have done all of this only because our clients exercised a constitutional right....

In 2020, while Black people made up 18% of New York’s population, they accounted for 78% of the state’s felony gun possession cases.  Non-Latino white people, who made up 70% of New York’s population, accounted for only 7% of such prosecutions.  Black people were also more likely to have monetary bail set, as opposed to release on their own recognizance or under supervision, even when comparing individuals with no criminal record.  When looking at only N.Y. Penal Law § 265.03(3) — which alleges only possession of a loaded firearm — 80% of people in New York who are arraigned are Black while 5% are non-Hispanic white. Furthermore, according to NYPD arrest data, in 2020, 96% of arrests made for gun possession under N.Y. Penal Law § 265.03(3) in New York City were of Black or Latino people.  This percentage has been above 90% for 13 consecutive years.

For another example, consider great recent work by Loyola University Chicago’s Center for Criminal Justice Research, Policy and Practice in recent reports on "Arrests in Illinois for Illegal Possession of a Firearm" and "Sentences Imposed on Those Convicted of Felony Illegal Possession of a Firearm in Illinois."  Here is key arrest data from this first report: "Black males between the ages of 18 and 24 had the highest arrest rate statewide; for every 100,000 Black male between the ages of 18 and 24, there were 2,404 arrests....  By comparison, the statewide arrest rate for White males between 18 and 24 was 307 per 100,000, and 1,108 per 100,000 for Hispanic males between 18 and 24."  And case-processing data from the second report details how Black offenders are more likely to be convicted on more serious charges: "[T]he majority (79%) of convictions for Class 2 felonies occurred in Cook County, whereas the majority (59%) of convictions for Class 3 felonies occurred outside Cook County.  Also, while the majority of those convicted of either felony class were Black individuals, a larger share of those convicted of the more serious Class 2 felony were Black (83%), compared to 64% of those convicted of Class 3 felony offenses."

And, lest one think these kinds of racial disparities are unique to state systems, the US Sentencing Commission published in March 2018 this potent report titled "Mandatory Minimum Penalties For Firearms Offenses In The Federal System."  Here is part of that report's "Key Findings" under the heading "Firearms mandatory minimum penalties continue to impact Black offenders more than any other racial group" (with my emphasis added):

Of course, the Supreme Court's eventual Second Amendment ruling in the Corlett case, no matter what it holds or says, is highly unlikely to dramatically alter the considerable racial disparities in modern criminal enforcement of gun prohibitions.  But, as debate over Second Amendment jurisprudence and gun control policy heats up in the coming months, I hope everyone keeps in mind the disconcerting demographic realities that consistently define modern criminal enforcement practice in the gun control space.

August 3, 2021 in Gun policy and sentencing, Race, Class, and Gender | Permalink | Comments (11)

Friday, July 23, 2021

As Eleventh Circuit works though ACCA "occasions different" mess, Judge Newson flags Apprendi "prior conviction" issues

A helpful reader alerted me to an interesting new split Eleventh Circuit panel decision in US v. Dudley, No. 19-10267 (7th Cir. July 22, 2021) (available here), concerning application of the severe mandatory minimum in the federal Armed Career Criminal Act.  As regular readers know, ACCA converts the 10-year maximum prison term for illegal gun possession by a felon into a 15-year mandatory minimum if the defendant has the wrong kind of prior convictions.  The basic issue in Dudley is a topic also to be considered by the Supreme Court this fall in Wooden v. US, namely ACCA's requirement that key prior offenses needed to be "committed on occasions different from one another."  In Wooden, the facts of the prior convictions are not in dispute, and so the Supreme Court will likely just explore the legal meaning of "occasions different from one another."  In Dudley, part of the debate concerns uncertainty about the facts of the prior convictions, and so the Eleventh Circuit panel has to discuss how these facts can be proved.

Working through a variety of complicated ACCA precedents, the majority in Dudley ultimately decides that "the district court did not err in relying on the prosecutor’s factual proffer in Dudley’s plea colloquy to find by a preponderance of the evidence that the three qualifying prior convictions for Alabama assault occurred on three separate, distinct occasions."  For hard-core ACCA fans, the majority's discussion might be interesting.  But hard-core Sixth Amendment fans will especially want to check out Judge Newsom's lengthy partial dissent which flags the significant Apprendi issues raised by prior rulings and this case.  Here is are some passages from the partial dissent to show why the whole opinion is worth checking out:

For starters, why doesn’t judicial factfinding involving ACCA’s different-occasions requirement itself violate the Sixth Amendment?  After all, we’ve described the different-occasions inquiry as a factual one....

Of course, I recognize that we and other circuits have repeatedly rejected constitutional challenges to ACCA’s different-occasions inquiry.  See Maj. Op. 18–19 (collecting cases).  We’ve justified ourselves on the ground that the date of an offense is part of the “factual nature” of the conviction — and thus falls under Almendarez-Torres’s exception to Apprendi....

But that explanation, while plausible at first blush, is tough to square with the Court’s characterization of Almendarez-Torres as a “narrow exception” to Apprendi’s general rule.  See Alleyne, 570 U.S. at 111 n.1.  As interpreted by Apprendi, Almendarez-Torres exempts only “the fact of a prior conviction” from the bar on judicial factfinding.  Apprendi, 530 U.S. at 490 (emphasis added).  After all, Almendarez-Torres itself involved only the bare fact that the defendant had been convicted of a prior aggravated assault.  523 U.S. at 226.   Although I don’t question Almendarez-Torres’s continuing vitality — above my pay grade — it seems that we do more than just faithfully apply that decision when we extend its “narrow exception” for the mere “fact of a prior conviction” to include other related facts, such as the date or time of the underlying offense.  Indeed, if Almendarez-Torres authorizes factfinding about more than just the fact of a prior conviction, what’s the limiting principle?  What differentiates the timing of the offense from the fact that it was “violent” for ACCA’s predicate-felony inquiry?  Both, it seems to me, are equally part (or not part) of the “factual nature” of the prior conviction.

July 23, 2021 in Almendarez-Torres and the prior conviction exception, Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

Friday, July 02, 2021

In final order list of of SCOTUS OT20, Justices grant cert on 924(c) matter and spar over summary reversal in capital case

Though we are now two days into July 2021, the US Supreme Court has delivered this morning a last jolt of October 2020 Term action with this lengthy order list that has a little something for all SCOTUS fans.  For starters, there are nine grants of certiorari.  The only criminal law grant is yet another debate over what qualifies as a "crime of violence" under federal statutory law.  This time the issue concerns application of 924(c)'s added mandatory punishments for gun use in the case of United States v. Taylor20-1459, which formally presents this question:

Whether 18 U.S.C. 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. 1951(a).

In addition, there are lots of GVRs and statements concerning cert dispositions on free speech, religion, takings and qualified immunity issues.  But nearly half of the 54-page order list is consumed with a per curiam summary reversal and dissent in the capital case of Dunn v. Reeves20-1084 (S. Ct.  July 2, 2021).  Here is how the 12-page majority opinion starts (with cites mostly removed):

Willie Johnson towed Matthew Reeves’ broken-down car back to the city after finding Reeves stranded on an Alabama dirt road.  In payment for this act of kindness, Reeves murdered Johnson, stole his money, and mocked his dying spasms.  Years after being convicted of murder and sentenced to death, Reeves sought state postconviction relief, arguing that his trial counsel should have hired an expert to develop sentencing-phase mitigation evidence of intellectual disability.  But despite having the burden to rebut the strong presumption that his attorneys made a legitimate strategic choice, Reeves did not call any of them to testify.

The Alabama Court of Criminal Appeals denied relief, stressing that lack of evidence about counsel’s decisions impeded Reeves’ efforts to prove that they acted unreasonably.  On federal habeas review, the Eleventh Circuit held that this analysis was not only wrong, but indefensible.  In an unpublished, per curiam opinion that drew heavily on a dissent from denial of certiorari, the Eleventh Circuit reinterpreted the Alabama court’s lengthy opinion as imposing a simple per se prohibition on relief in all cases where a prisoner fails to question his counsel.  It was the Eleventh Circuit, however, that went astray in its “readiness to attribute error.” Federal habeas courts must defer to reasonable state-court decisions, 28 U.S.C. §2254(d), and the Alabama court’s treatment of the spotty record in this case was consistent with this Court’s recognition that the absence of evidence cannot overcome the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.

Justice Sotomayor authored a 14-page dissent joined by Justice Kagan. (Justice Breyer also dissented, but without opinion.) Justice Sotomayor dissent ends this way:

Today’s decision continues a troubling trend in which this Court strains to reverse summarily any grants of relief to those facing execution. See, e.g., United States v. Higgs, 592 U.S. ___ (2021) (emergency vacatur of stay and reversal); Shinn v. Kayer, 592 U.S. ___ (2020) (per curiam) (summary vacatur); Dunn v. Ray, 586 U.S. ___ (2019) (emergency vacatur of stay).  This Court has shown no such interest in cases in which defendants seek relief based on compelling showings that their constitutional rights were violated.  See, e.g., Johnson v. Precythe, 593 U.S. ___ (2021) (denying certiorari); Whatley v. Warden, 593 U.S. ___ (2021) (same); Bernard v. United States, 592 U.S. ___ (2020) (same). In Reeves’ case, this Court stops the lower court from granting Reeves’ petition by adopting an utterly implausible reading of the state court’s decision.  In essence, the Court turns “deference,” ante, at 7, into a rule that federal habeas relief is never available to those facing execution.  I respectfully dissent.

July 2, 2021 in Death Penalty Reforms, Gun policy and sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, June 14, 2021

Perhaps more guns explains why we have more gun homicides and more gun crimes

In this prior post on recent media coverage and political punditry focused on rising crime rates and their political implications, I noted my frustration that these discussions too often elide important data suggesting that it is primarily gun-related crimes that are on the rise while other crimes may still be on the decline.  Again this backdrop, I found notable this new Vox piece by two data scientists headlined "One possible cause of the 2020 murder increase: More guns."  Here are excerpts:

It’s true that police activity, as measured by stops and arrests, declined significantly in 2020.  Still, despite that drop, and weeks before Floyd’s murder and the ensuing protests, police began finding firearms more often than in previous years.

This pattern does not support the idea that overwhelmed police forces weren’t able to take guns off the streets, leading to a surge in violence. Instead, the spike in firearms as a percentage of stops and arrests provides evidence that there were simply more guns on the streets throughout 2020 than in the past, which may have intensified other sources of violence and contributed to the historic rise in murders.  While there is no standardized, national open data on stops, information on police activity in 10 cities that we compiled points toward the same pattern....

The share of stops or arrests that resulted in a firearm being found increased in every city.  In Washington, DC, the share of all arrests that were weapons violations went from 5 percent in January to March 2020, to 7 percent in April and 9 percent in May.  The share of arrests for weapons possession went from 1 percent between January and March 2020 in Charleston, South Carolina, to 4 percent between April and December.  Almost every city followed the same pattern: a dramatic jump in the share of arrests or stops with a firearm in April and May, a decline in June, and a return to the earlier elevated levels for the remainder of the year.

The implication of this trend is that — assuming police did not suddenly become substantially better at identifying who has an illegal gun — firearm carrying increased at the beginning of the pandemic, well before the protests, and persisted at that level for the remainder of the year.  It is possible that in the midst of the pandemic, police started engaging in better-targeted stops that were more likely to yield arrests.  But finding other kinds of contraband, like drugs, did not become more frequent, only guns....

Police finding more firearms in stops and arrests does not fit with the idea that a decrease in proactive police activity targeting firearms was the major driver for 2020’s historic murder totals, though it certainly cannot be ruled out as a contributing factor....  The data all points to substantially more complex causes behind the rise in murder than the simple narrative of a change in policing as the sole or even main driver.  It is plausible, though, that the summer’s drops in stops and arrests, protests against police violence, and increases in gun violence are all symptoms of the same disease: what criminologists David Pyrooz, Justin Nix, and Scott Wolfe recently called a “legitimacy crisis in the criminal justice system,” the result of intensifying distrust in “the law and its gatekeepers” as a result of injustice....

The trend toward more firearms sales and more guns on the street seems to have continued into 2021.  Background checks accelerated even beyond last year’s peak in the first three months of this year.  And the latest data from these cities’ stops shows that police are finding as many guns as they did in the second half of 2020.

Early figures from many cities show murders have increased from last year’s baseline as well.  If the greater availability of firearms contributed to last year’s violence, the latest arrest data suggests it may contribute even more deaths to 2021’s murder total.

A few of many prior related posts:

June 14, 2021 in Gun policy and sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (3)

Thursday, June 10, 2021

Some early coverage of big new SCOTUS ruling limiting ACCA in Borden

A busy day on other matters means I have only had a chance to skim Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here), the big win for the defendant today in an ruling limiting the reach of the Armed Career Criminal Act.  I hope in the coming days to have a lot to say about Borden ruling itself and its possible aftermath, but for now I can and will round up some early press and blog coverage:

From Bloomberg Law, "Divided High Court Sides With Defense on Repeat-Offender Law"

From Crime & Consequences, "Fractured Supreme Court Cripples Armed Career Criminal Act"

From The Hill, "Gorsuch, Thomas join liberal justices in siding with criminal defendant"

From Law & Crime, "Kagan Goes After Kavanaugh for Lengthy Footnote: There’s Nothing ‘Unfair’ About This Outcome"

From the New York Times, "Supreme Court Limits Sweep of Law on Mandatory Minimum Sentences"

From SCOTUSblog, "Court limits definition of 'violent felony' in federal gun-possession penalty"

From The Volokh Conspiracy, "Justice Thomas Takes One For The Team in Borden v. U.S."

June 10, 2021 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

In 5-4 decision, SCOTUS limits reach of ACCA mandatory minimum "violent felony" predicates by holding a "reckless offense cannot so qualify"

The last big SCOTUS sentencing ruling of this Term that I have been eagerly awaiting was (yet another) one concerning application of the Armed Career Criminal Act.  Today the wait was over, as this morning the Court handed down it opinion in Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here).  And it is a big win for the defendant with Justice Kagan authoring the key opinion for four Justices (with Justices Breyer, Sotomayor and Gorsuch joining), which starts this way:

The Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e), mandates a 15-year minimum sentence for persons found guilty of illegally possessing a gun who have three or more prior convictions for a “violent felony.”  The question here is whether a criminal offense can count as a “violent felony” if it requires only a mens rea of recklessness — a less culpable mental state than purpose or knowledge.  We hold that a reckless offense cannot so qualify.

Justice Thomas writes a concurring opinion that starts this way:

This case forces us to choose between aggravating a past error and committing a new one. I must choose the former.  Although I am “reluctant to magnify the burdens that our [erroneous] jurisprudence imposes,” Ring v. Arizona, 536 U.S. 584, 610 (2002) (Scalia, J., concurring), I conclude that the particular provision at issue here does not encompass petitioner’s conviction for reckless aggravated assault, even though the consequences of today’s judgment are at odds with the larger statutory scheme.  The need to make this choice is yet another consequence of the Court’s vagueness doctrine cases like Johnson v. United States, 576 U.S. 591 (2015).

Justice Kavanaugh writes a lengthy dissenting opinion (which is longer than the other two opinions combined) which concludes its opening discussion this way:

In my view, the Court’s decision disregards bedrock principles and longstanding terminology of criminal law, misconstrues ACCA’s text, and waves away the Court’s own recent precedent. The Court’s decision overrides Congress’s judgment about the danger posed by recidivist violent felons who unlawfully possess firearms and threaten further violence. I respectfully dissent.

There is a lot here to take in, but I hope to figure all this out before too long. The key takeaway is that, thank to Justices Gorsuch and Thomas, Borden is the slimmest of victories for the defendant here and likely the start of yet another chapter of uncertainty about what comes next in ACCA jurisprudence.

June 10, 2021 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, May 26, 2021

Notable (and huge) sentence reductions used to remedy stacked 924(c) sentences for crooked cops

As reported in this Baltimore Sun article, headlined "Corrupt former Baltimore Police officers get sentences reduced from 454 years to 20 years," a couple of crooked cops this week got their sentences reduced considerably to undo the now-repealed harshness of severe stacking mandatory minimum 924(c) counts thanks to the FIRST STEP Act.  Here is a summary from the press account:

Two former Baltimore Police officers sentenced to a combined 454 years in federal prison for shaking down citizens in the early 2000s had their prison terms reduced to 20 years each by a federal judge Monday.

U.S. District Judge Theodore D. Chuang agreed with arguments put forward by attorneys for William King and Antonio Murray earlier this year under the First Step Act, noting that since their convictions in 2006 Congress has passed sentencing reforms that would have led to significantly shorter sentences if the officers were sentenced today....

The U.S. Attorney’s Office agreed that the sentences should be reduced, but to 30 years for Murray, and 65 years for King. “Neither sentence is unreasonable given the offense conduct in this case,” Assistant U.S. Attorney Sandra Wilkinson wrote.

The officers’ attorneys noted that former Gun Trace Task Force Sgt. Wayne Jenkins, who pleaded guilty to years of robberies and drug dealing, received 25 years in prison in 2018....  Chuang agreed, saying 20 years for King and Murray “roughly corresponds with the type of sentences presently imposed in comparable police corruption cases in this District.”...

Prior to the Gun Trace Task Force case, the case of King and Murray was one of the highest-profile Baltimore police corruption cases.  The officers, who were assigned to the BPD’s public housing drug unit, were called out in the “Stop Snitching” underground video, with a man on the tape saying the officers looked out for certain drug dealers.  A man they shook down went to the FBI, and authorities launched an investigation that found the officers were detaining and robbing drug dealers.

At the time, the officers “maintained that their activities were all in furtherance of legitimate police activity in an effort to develop sources to lead to arrests of drug distributors,” said prosecutors, adding the officers claimed they used their ill-gotten money to pay informants who could help them catch those higher up in the drug gangs.  King later said the tactics were imported by the department’s New York police leadership, and blamed immense pressure to reduce crime as the reason he and some colleagues went bad.

The men were convicted of robbery, extortion, and drug and handgun offenses, which each had penalties that were “stacked” at sentencing.  The sentencing judge, J. Frederick Motz, lamented at the time that the sentences were “absolutely disproportionate to the crimes that were committed” but said he had no discretion to depart from the mandatory sentencing laws.

The opinions from the district court in these two cases can be downloaded below:

Download United States v. William King No 05-cr-00203 (May 24 2021 D. Md.)

Download United States v. Antonio Murray No 05-cr-00203 (May 24 2021 D. Md.)

May 26, 2021 in FIRST STEP Act and its implementation, Gun policy and sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered | Permalink | Comments (0)

Monday, April 26, 2021

After more than a decade, SCOTUS finally grants cert on big Second Amendment carry case

The Supreme Court ruled in Heller in 2008 that the Second Amendment secured the right to keep arms in the home, and then in McDonald applied this right to the states in 2010.  Most Court watchers thereafter said it was only a matter of time before the Court would need to address whether and how the Second Amendment applies to laws restricting or regulating the carrying of arms outside the home.  But for quite some time, the Supreme Court declined to take up this next big Second Amendment issue. 

But vIa this order list this morning, the Justices agreed to review New York’s concealed-carry laws through a cert grant in New York State Rifle & Pistol Association v. Corlett.  Here is how the Supreme Court framed the question presented via its cert grant:

The petition for a writ of certiorari is granted limited to the following question: Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

There will be lots of ink spilled about this grant and lots of amici briefs sure to be filed.  But I wonder if others will think it notable how the Court rewrote the petitioner's question presented in this cert petition, which asked (emphasis added): "Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense." 

Long-time readers may know I have been wondering for a long time about the textual or jurisprudential justification for saying that the Second Amendment does not apply to all "people," but only to so-called "law-abiding" ones (see, e.g., posts here and here and here).  I have long assumed that the "law-abiding" language appeared in Heller and McDonald at the behest of Justice Anthony Kennedy.  With Justice Kennedy no longer on the Court, I cannot help but wonder if the current Justices were eager to remove that Court-invented language from the question presented.   

I bring this issue to the fore, of course, because a broadly applicable Second Amendment that protects all people, and not just the so-called "law-abiding" ones, could have all sorts of implications for all sorts of criminal law and sentencing provisions related to gun possession.  The Supreme Court already has on its docket a case, Wooden, concerning a defendant who received over 15 years in prison under federal law for mere gun possession in his home due to his prior convictions (and at issue in Wooden is just the statutory issue of whether these past convictions triggered the extreme 15-year mandatory minimum term under federal law).  If the Second Amendment is to be anything other than a second-class right, it ought to protect all people (as the language of the Amendment indicates) and not just whatever people the Supreme Court might decide are special as it creates this jurisprudence. 

April 26, 2021 in Gun policy and sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Thursday, April 01, 2021

Notably split Sixth Circuit panel finds way-above guideline felon-in-possession sentence to be substantively unreasonable

Earlier this week, a Sixth Circuit panel handed down a split (unpublished) opinion finding an above-guideline sentence substantively unreasonable in US v. Stanton, No. 20-5320 (6th Cir. Mar. 30, 2021) (available here).  Any and every circuit ruling that finds a sentence substantively unreasonable is quite notable because such opinions are quite rare — for example, USSC data shows only six such reversals in Fiscal Year 2019 and only eight such reversals in Fiscal Year 2020.  (Indeed, with this Sixth Circuit Stanton ruling finding an above-guideline sentence substantively unreasonable handed down on the same day that the Fourth Circuit found a within-guideline sentence substantively unreasonable in Freeman (discussed here, opinion here), one might be tempted to remember March 30, 2021 as an historic day for reasonableness review.)

The majority and dissenting opinions in Stanton are worth full reads, and here is how the majority opinion gets started and wraps up:

Dustin Stanton challenges his 108-month sentence for one count of unlawful possession of a firearm as substantively unreasonable.  Stanton argues that the district court did not provide sufficiently compelling reasons to justify nearly tripling his maximum guideline sentence of 37 months.  We agree.

In sum, based on the reasons it provided at sentencing, the district court “placed too much weight on the § 3553(a) factors concerning criminal history [and] deterrence . . . without properly considering sentencing disparities.”  See Perez-Rodriguez, 960 F.3d at 758. “By ‘relying on a problem common to all’ defendants within the same criminal history category as [Stanton]—that is, that they have an extensive criminal history — the district court did not give a sufficiently compelling reason to justify [its extreme variance].” Warren, 771 F. App’x at 642 (quoting United States v. Poynter, 495 F.3d 349, 354 (6th Cir. 2007)).  Though Stanton’s continued recidivism and his previous 84-month sentence for the same crime may ultimately warrant an upward variance, they are not — without more — sufficiently compelling justifications for nearly tripling his maximum guideline sentence for a mine-run offense.  See Boucher, 937 F.3d at 714 (vacating sentence as substantively unreasonable and noting that “after the district court reweighs the relevant § 3553(a) factors” the defendant “may or may not be entitled to a” variance).

And here is how Judge Thapar starts and ends his dissent:

District judges are not at liberty to turn a blind eye to reality at sentencing.  Instead, the sentencing factors in the United States Code require judges to consider the real-world consequences of a prison term.  Will the sentence protect the public?  Will it deter the defendant?  What does a defendant’s criminal history tell the court about his likelihood of recidivism?  Are there positive factors that might cut the other way?  The sentencing guidelines help answer these questions.  But district judges understand better than most that the guidelines are not binding for a reason: They don’t fit every case.  Especially one like Dustin Stanton’s.  Here, a conscientious district judge had a violent, repeat offender in front of him.  The last time Stanton was in federal court, Judge Waverly Crenshaw’s colleague sentenced him to 84 months.  Barely a year after his release, Stanton was back — as violent as ever, and for the same offense.  So Judge Crenshaw did what good judges do.  He balanced the sentencing factors and came up with a fair sentence: 108 months.  I respectfully dissent from making him do it again....

Fair sentencing is a key goal of our criminal justice system. The sentencing guidelines help further that goal. Still, district judges must exercise independent judgment when imposing a sentence. Sometimes the reality of a case justifies a variance downward. Sometimes, it justifies the opposite. Here, Judge Crenshaw decided that Stanton’s case called for an upward variance. That decision was reasonable. Thus, I respectfully dissent.

April 1, 2021 in Booker in district courts, Booker in the Circuits, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, March 17, 2021

Spotlighting ugly reasons and realities surrounding federal gun sentences

Tana Ganeva has this effective Reason piece giving attention to federal gun sentences.  The full headline highlights its themes:  "743 Years and 3 Months. 117 Years. 51 Years. Why Are These Men's Sentences So Long?  For possessing a gun while committing a crime — even when no one is killed — too many defendants are slammed with sentences decades or even centuries longer than justice demands."  Here are excerpts:

The federal statute 924(c) imposes mandatory minimum sentences in offenses involving a firearm. Federal law requires that the lengthy sentences for possessing a gun while committing a crime be served back-to-back instead of concurrently, even though state laws tend to be much more lax: In Indiana, where [Charles] Scott was caught, robbery is punishable by one to six years in state prison, with a recommended time of three years. Scott's original offense, the robberies, account for a little more than six years of his sentence — the other 45 years were from the 924(c) charges. Scott's draconian sentence is actually lighter than others snagged under the same statute — there are people sentenced to centuries in prison because of 924(c) even if their underlying crimes would have earned them far less time than multiple human life spans.

As of 2016, 14.9 percent of the federal prison population — or 24,905 people — was incarcerated due to a firearm offense carrying a mandatory minimum penalty, according to the Federal Sentencing Commission. Criminal justice reform advocates believe the law wrongly conflates gun violence and crimes where the perpetrator carries, or even just owns, a gun.

"Mandatory minimums around firearms are some of the most frustrating cases," says Kevin Ring, the executive director of Families Against Mandatory Minimums (FAMM), a criminal justice reform organization. "In a country with 340 million firearms, the idea that someone is not going to happen to be in possession of a gun if they commit a crime … the law does not distinguish between someone who uses a gun to commit a crime, and someone who happens to be a gun owner. It's a frustrating, stupid law."...

Although Scott and his family hope for federal clemency, his case isn't a neat fit for today's political climate. Democratic lawmakers brand themselves as advocates for gun control, and so don't have a lot to gain from showing mercy to people who break gun laws. Most Republicans still tend to campaign on tough-on-crime platforms that don't leave a lot of room for second chances.

"For Democrats, mandatory minimums for guns can be a plan B for gun control," says Ring. "And for Republicans, for too long, people resisted the idea that people who own guns … some of those people sell drugs. To fend off gun control, they like to hammer people who have a gun when they commit a crime."

March 17, 2021 in Gun policy and sentencing, Mandatory minimum sentencing statutes | Permalink | Comments (4)

Wednesday, March 03, 2021

More guns = more gun crimes in 2020?

The question in the title of this post is prompted by this new NPR article headlined "Did Record Gun Sales Cause A Spike In Gun Crime?  Researchers Say It's Complicated."  Here is an excerpt (with links from original):

"It's a real challenge to try and disentangle the role of any one single potential cause," says Julia Schleimer, with the Violence Prevention Research Program at the University of California, Davis. "It's particularly challenging during the pandemic," with variables such as mass unemployment and closed schools.

Nevertheless, Schleimer and her colleagues are trying to parse out the effect of all those new guns. Their study of the initial boom in purchases — an estimated 2.1 million extra sales from March to May — concluded there was an association between short-term surges in sales and shootings.

But as the year progressed, Schleimer says that statistical relationship faded.  "We know that there's a strong link between more guns and more gun violence," she says, "but during this pandemic and in our analysis here, that link is less clear."  Setting aside the question of sales, though, there does seem to be evidence that guns were more present in daily life last year — especially during crimes.

"All of a sudden, the number of assaults with guns spiked a lot," says Rob Arthur, a data scientist and independent journalist. In a recent article for the Intercept, he pointed to an increase in the ratio of violent crimes that involved guns to those that didn't.  "That suggested to me that there was some kind of substitution going on," Arthur says. "People who were committing assaults had access to guns more in 2020 than they did before. And so they they were essentially getting upgraded to a worse crime, assaulting someone with a gun, whereas before they might have done it without a gun."

It may be a leap, though, to assume those shooters were part of last year's wave of gun buyers. Mandatory background checks bar felons and other disqualified people from buying guns in stores, and past research shows most guns used in crimes are not newly purchased.  But established patterns may not apply to 2020.  Guns were bought by a much broader cross-section of Americans last year, and the firearms industry estimates 40% were first-time buyers.

"Black gun ownership is way up, Asian gun ownership is way up, Hispanic gun ownership is way up," says Cam Edwards, the editor of BearingArms.com. "So we've seen a democratization...  where Americans who never before would have considered exercising that right have now embraced it."

For some, this "democratization" of gun sales is a matter of exercising a civil right. But it's also likely that the broadening of firearm ownership was driven by people who simply decided, during a turbulent year, that they needed a gun.  Whatever the reasons, it means 8 million new guns are now in the possession of people who potentially have less experience handling them.

March 3, 2021 in Gun policy and sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

Thursday, February 04, 2021

Eighth Circuit panel affirms (within-guideline) sentence of 2.5 years for illegal possession of a single bullet

Decade of study can make one nearly numb to the variety of remarkable stories involving our criminal justice systems ordering people to live long periods in cages for what seems like relatively minor crimnal activity.  But I was still struck by an Eighth Circuit ruling this week in US v. Brown, No. 20-1377 (8th Cir. Feb 2, 2021) (available here), highlighting how minor convicted conduct can lead to major federal prison time.  Here are the basics fron a unanimous per curiam unpublished opinion (with cites removed):

The district court1 sentenced Deaviea David Brown to 30 months of imprisonment after Brown pled guilty to being a felon in possession of ammunition—a single bullet. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). On appeal, Brown contends that sentence is substantively unreasonable and violates the Eighth Amendment. We affirm....

Because Brown’s sentence is at the bottom of the Guidelines range, we presume the sentence is reasonable. Brown did not rebut that presumption.  We also note that during the sentencing hearing, the district court specifically addressed the § 3553(a) factors.  We see no basis to conclude either that the district court improperly weighed the § 3553(a) factors or that the sentence it imposed was substantively unreasonable....

[T]he proportionality principle in Eighth Amendment law is quite limited. Under this standard, the proportionality argument presented simply lacks sufficient basis for this court to conclude that Brown’s sentence — which was at the bottom of the recommended Guidelines range — is one of those “exceedingly rare” cases that raises the gross-disproportionality inference.  While 30 months of imprisonment for possession of a single bullet may seem, on its surface, disproportionate, the penalty relates to the prohibition on convicted felons possessing ammunition of any amount. The sentence does not violate the Eighth Amendment.

I have not yet found any more information about the district court sentencing online, but I would guess there is a significant backstory as to why Mr. Brown was federal prosecuted and sentenced to 2.5 years in federal prison for possession of a single bullet. (There was a significant backstory when the Sixth Circuit affirmed a 15-year ACCA sentence for possession of seven shotgun shells some years ago.)  But I am always troubled when a serious sentence is based on some unclear backstory rather than on the seriousness of the actual offense conduct that produced the conviction.

Notably and annoyingly, the panel keeps stressing that the 30-month sentence here was at the bottom of the applicable guideline range.  For me, that fact serves to condemn the federal sentencing guidelines, not justify this extreme sentence.  It is also an important reminder that, even 15+ years after Booker made the guidelines advisory, they still have an adverse impact on justice and still need a thorough rewrite.

I am especially troubled by the facile rejection of the Eighth Amendment claim by the panel in these terms: "While 30 months of imprisonment for possession of a single bullet may seem, on its surface, disproportionate, the penalty relates to the prohibition on convicted felons possessing ammunition of any amount."  This strike me as tantamount to a statement that there could never be a constitutionally disproportionate sentence for shoplifting a candybar because a severe penalty is critical to keep people from stealing any amount of goods.  Put simply, 30 months of imprisonment for possession of a single bullet does seem disproportionate, and the Eighth Circuit panel should have at least conducted a full Eighth Amendment proportionality analysis (which would show, I think, that this this behavior is not even criminal in many states and not a felony in most).

February 4, 2021 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Sunday, January 24, 2021

Two more new 3582(c)(1)(A) reductions to remedy stacked 924(c) sentences reformed by FIRST STEP Act

As regular readers know, I have made much of the FIRST STEP Act provision now allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  The BOP reports here that a total of 2,693 of these motions have now been granted in the 25 months since the FIRST STEP Act became law.  The vast majority of the sentencing reduction motions brought by federal prisoners and granted by federal district judges these days are focused on the health threat posed by COVID.  But judges are still rightly finding other "extraordinary and compelling reasons" warranting sentencing reductions.

A helpful reader recently flagged for me two great new district court rulings using § 3582(c)(1)(A) to undo the now-repealed harshness of severe stacking of mandatory minimum 924(c) counts.  Both rulings ought to be read in full as yet another set of examples of the ridiculousness and injustice of (post-trial) sentences that had to be imposed by judges under mandatory sentencing provisions, and to appreciate how the FIRST STEP Act helps to restore at least a little sanity and justice in this ugly part of the federal sentencing world.  I will here just note the openning paragraphs and provide a link to the full opinions:

US v. McDonel, No. 07-20189 (ED Mich. Jan. 13, 2021):

Defendant Robert McDonel, then 21 years old, was sentenced to over 100 years in prison in 2008 after engaging in a spree of auto parts store robberies using a handgun.  That extraordinarily harsh sentence was the product of a statutory sentencing scheme that required enhancing and stacking sentences for multiple firearm brandishing offenses even when the crimes were committed as part of the same episode and charged in a single indictment.  Congress since has corrected that Draconian measure, but the legislation does not help McDonel, as the amendment is not retroactive. He asks the Court for relief under 18 U.S.C. 3582(c)(1)(A)(i), as amended by section 603(b)(1) of the First Step Act of 2018, Pub L. 115-391, 132 Stat. 5194, 5239, which allows a sentence reduction for “extraordinary and compelling reasons.”  The gross disparity created by the legislative changes, which mitigated the harshness in the sentencing scheme to which McDonel was subjected, coupled with McDonel’s youth and rehabilitative efforts, qualify as extraordinary and compelling reasons under section 3582(c)(1)(A)(i). Other factors that the Court also must consider favor relief.  The motion will be granted.

Download McDonel opinion

US v. Nafkha, No. 2:95-CR-00220-001-TC (D Utah Jan. 11, 2021):

Prisoner Mounir Nafkha moves for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i), asking the court to reduce his nearly 73-year sentence in the custody of the United States Bureau of Prisons (BOP) to time served.  To date, Mr. Nafkha has served approximately 25 years of his sentence. He asserts that the circumstances surrounding his sentence — which consists of four consecutively “stacked” counts under 18 U.S.C. § 924(c) — constitute extraordinary and compelling reasons for his early release.  The court finds that Mr. Nafkha has satisfied his burden of showing extraordinary and compelling reasons to release him and that the balance of sentencing factors set forth in 18 U.S.C. § 3553(a) warrant his release. Accordingly, his motion (ECF No. 214) is GRANTED.

Download Nafkha Grant

January 24, 2021 in FIRST STEP Act and its implementation, Gun policy and sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered | Permalink | Comments (1)

Saturday, December 19, 2020

Split Sixth Circuit panel decides FIRST STEP Act's less severe 924(c) mandatory minimums are applicable to resentencing

In this post a full two years ago right after the enactment for the FIRST STEP Act, I flagged some issues regarding which "pipeline" defendants might be able to benefit from the Act's reduced sentencing terms.  (By "pipeline," I meant cases in which offense conduct took place before passage of the FIRST STEP Act, but a sentence was not fully finalized when the Act became law.)  In that post, I noted that Congress in the FIRST STEP Act had expressly provided that the reduced 924(c) mandatory minimums were to be applicable "if a sentence for the offense has not been imposed as of such date of enactment" of the Act.  And then I pondered in that post: "Imagine a defendant already sentenced earlier in 2018, but his sentence is reversed on some other ground and now he faces resentencing in 2019.  Can a defendant get the benefit of any new provisions of the FIRST STEP Act upon resentencing?"

A Sixth Circuit panel this past week spoke to these issues in US v. Henry, No. 19-2445 (6th Cir. Dec 18, 2020) (available here).  The panel split, with the majority eager to give broad application to the FIRST STEP Act's reduced sentencing terms.  The Henry court gives various justifications for its reading of the applicable provision of the Act, including its legislative history: "the legislative history of the First Step Act demonstrates Congress’s intent to remedy overly punitive mandatory-minimum sentences faced by defendants, including defendants resentenced after the Act’s enactment."  Judge Gibbons writing in dissent sees matters differently, explaining "Given the vast sentencing disparities depending on whether the First Step Act applies — 55 years versus 15 years in this case — it is unclear why Congress chose to extend the Act’s protection to a defendant sentenced on the date of enactment but not to a defendant sentenced just one day prior. But whatever the wisdom of that decision, 'Congress has . . . drawn a line in the sand.'"

I am very much in favor of the approach adopted by the majority here, which essentially recognizes that absent a clear "line in the sand" for limiting application of the newer, less severe sentencing terms, it makes sense to give those terms the broadest possible application.  As the dissent notes, a full 40 years of imprisonment is at issue in this matter.  As I see it, if Congress is not 100% clear that an extra four decades of time in a cage  must be imposed, courts ought not mandate its imposition.

December 19, 2020 in FIRST STEP Act and its implementation, Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, December 09, 2020

Sentencing Council for England and Wales issues new sentencing guidelines for firearm offenses that include drawing drawing sentencers' attention to historic disparities

As reported in this official news release, titled "Sentencing guidelines for firearms offences published," the Sentencing Council for England and Wales has released some new sentencing guides that includes an especially interesting element intended to respond to historic ethnic sentencing bias.  Here are the basics from the release (with some emphasis added):

Today, the Council is launching eight new sentencing guidelines to be used by the Crown Court and magistrates’ courts in England and Wales when sentencing firearms offences. The new guidelines will come into effect on 1 January 2021.

The aim of the guidelines, which will apply to adult offenders, is to help the courts deliver appropriate sentence levels for the unlawful possession of firearms and take a consistent approach to sentencing these offences.

Firearms offences are serious.  Some offences carry life imprisonment, some carry sentences of up to 10 years, and some require minimum sentences of five years, but there are currently no sentencing guidelines in the Crown Court and only one for use in magistrates’ courts.

Analysis conducted by the Council in preparation for the guidelines suggests there are disparities in sentence outcomes for some firearms offences based on ethnicity (see the response to consultation, pages 29-32).  The Council has taken measures in the guidelines to address this, including drawing sentencers’ attention to evidence of sentencing disparities in specific offences as an integral part the sentencing process.  The Council is committed to continuing to investigate apparent disparity in sentencing outcomes across all offences and will take further action as and when there is evidence of effective measures that can be applied to guidelines. 

This new article from The Guardian, headlined "Judges told they should consider previous racial bias before sentencing: Guidelines remind the bench black offenders tend to receive longer sentences for firearms offences," provides some additional context.  Here is an excerpt:

Judges and magistrates are to be given explicit reminders for the first time in sentencing guidelines of the disparity in punishments being imposed by the courts on white, Asian and black offenders. The advice is included in formal directions circulated by the sentencing council to those on the bench about how they should assess penalties for firearm offences.

The offences, which cover possession, discharge and manufacture of weapons, can result in a maximum prison term of up to 10 years. The eight new guidelines come into effect on 1 January.

Judges and magistrates are asked to consider the culpability of offenders according to whether, for example, the gun was loaded, shots have been fired, if it was for criminal purpose and the harm caused to any victim. But it is the inclusion of explicit reminders to judges and magistrates that the courts have in the past not achieved racial parity in the distribution of punishments that is highly unusual and novel.

In the guideline for the offence of possessing a firearm without a certificate, for example, judges and magistrates are reminded: “Sentencers should be aware that there is evidence of a disparity in sentence outcomes for this offence which indicates that a higher proportion of Black and Asian offenders receive an immediate custodial sentence than White offenders and that for Black offenders custodial sentence lengths have on average been longer than for White offenders.”

The note continues: “There may be many reasons for these differences, but in order to apply the guidelines fairly sentencers may find useful information and guidance … [in specific sections of] the Equal Treatment Bench Book.”

In another note, on possession of a prohibited weapon, the reminder states: “Sentencers should be aware that there is evidence of a disparity in sentence outcomes for this offence which indicates that where the minimum term applies, a higher proportion of White offenders receive a sentence below the mandatory minimum term, and as a result less severe sentences compared to Black, Asian and Other ethnicity offenders.”...

In 2017, a review by David Lammy QC, commissioned by the Ministry of Justice, highlighted bias against black and minority-ethnic suspects in the criminal justice system of England and Wales.  Among possible reasons for disparities, the sentencing council said, may be the “significance given to previous convictions in sentencing firearms cases.  There is an overrepresentation of black, Asian and other ethnic groups at many stages throughout the criminal justice system compared to the White ethnic group which means that, for example, a black offender may have a more significant record than a White offender of the same age.”

December 9, 2020 in Gun policy and sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Monday, April 27, 2020

SCOTUS dismisses NYC Second Amendment case as moot (and Justice Alito dismisses public safety claims with gun rights at issue)

The Supreme Court resolved a closely watched Second Amendment case this morning, in a manner that is sure to be disappointing to Second Amendment fans.  The Court's two-page per curiam opinion in New York State Rifle and Pistol Association v. City of New York, No. 18–280 (S. Ct. Apr. 27, 2020) (available here), starts this way:

In the District Court, petitioners challenged a New York City rule regarding the transport of firearms.  Petitioners claimed that the rule violated the Second Amendment.  Petitioners sought declaratory and injunctive relief against enforcement of the rule insofar as the rule prevented their transport of firearms to a second home or shooting range outside of the city. The District Court and the Court of Appeals rejected petitioners’ claim.  See 883 F. 3d 45 (CA2 2018).  We granted certiorari. 586 U. S. ___ (2019).  After we granted certiorari, the State of New York amended its firearm licensing statute, and the City amended the rule so that petitioners may now transport firearms to a second home or shooting range outside of the city, which is the precise relief that petitioners requested in the prayer for relief in their complaint.  App. 48.  Petitioners’ claim for declaratory and injunctive relief with respect to the City’s old rule is therefore moot.

Justice Kavanaugh issued a two-paragraph concurrence that concludes this way: "I share JUSTICE ALITO’s concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court."

Justice Alito, joined entirely by Justice Gorsuch and mostly by Justice Thomas, authored a 31-page dissent. Justice Alito not only disputes the claim that the petitioners' claims are moot, but he also explains why he thinks it "is not a close question" on the merits "that the City ordinance violated the Second Amendment."  Second Amendment fans will like a lot of what Justice Alito has to say, but I think criminal justice fans will want check out how Justice Alito is quick to dispute the claims made by NYPD Inspector Andrew Lunetta in an affidavit explaining why the NYC law was "necessary to address public safety concerns." 

Justice Alito spend four pages explaining why he disputes and discounts and ultimately dismissed the public safety assertions of a 30-year veteran of the New York Police Department.  He calls some of what the police official asserted "not relevant," and says that other statements "actually undermine the City’s public safety rationale."  On another front, he states the NYPD Inspector is making a "strange argument" and call another claim "dubious on its face"  and yet another "more than dubious."  Justice Alito concludes his analysis with this sentence: "The City’s public safety arguments were weak on their face, were not substantiated in any way, and were accepted below with no serious probing." 

Though I know that this is just wishful thinking, I sure hope Justice Alito's eagerness to question, dissect and dispute claims made by police — and prosecutors and others who make all sort of debatable claims what is "necessary to address public safety concerns" — will extend to cases involving assertions by individuals of claims under other Amendments like the Fourth and Fifth and Sixth and Eighth.  But I fear only Second Amendment claims lead Justice Alito to question how government officials seek to leverage claims of what public safety makes necessary.

April 27, 2020 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (0)

Monday, March 02, 2020

SCOTUS grants cert in Borden ACCA case to replace Walker case after death of petitioner

As noted in this prior post, back in November the Supreme Court granted cert in Walker v. United States to consider whether a criminal offense that can be committed with only a reckless mens rea can qualify as a "violent felony" under the Armed Career Criminal Act.  After seeing the facts in the Walker, case, which involved to possession of ammunition and not the possession of a gun, I reached out to some law professor colleagues and we filed this this SCOTUS amicus brief in US v. Walker in early January.

But Mr. Walker died in late January, and so his petition for a writ of certiorari was dismissed.  Today SCOTUS took up a replacement case, Borden v United States, which will given the Justices another chance to decide whether a crime that can be committed by being reckless can be a “violent felony” for purposes of the Armed Career Criminal Act.  Disappointingly, the Borden case involves gun possession, not just ammunition possession, so our amicus brief won't quite work for this new case.  Bummer.

In any event, though sentencing fans have to be excited about yet another ACCA case on the docket, the truly big SCOTUS cert news today concerns ACA, not ACCA.

March 2, 2020 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, January 27, 2020

SCOTUS dismisses Walker ACCA case after death of petitioner (and after robust amicus efforts)

As noted in this post, back in November the Supreme Court granted cert in Walker v. United States to consider whether a criminal offense that can be committed with only a reckless mens rea can qualify as a "violent felony" under the Armed Career Criminal Act.  Even more than the average ACCA case, the Walker case caught my attention because it involved an elderly man, James Walker, who received 15 years in prison under ACCA based on his possession of 13 bullets that he had found while cleaning a house.

Though the cert grant in Walker involved ACCA statutory interpretation concerning predicate prior offenses, I have long been troubled by any application of ACCA's extreme 15-year mandatory minimum term to simple possession of a small amount of ammunition.  (Indeed, long-time readers may recall I helped file an amicus brief in the Sixth Circuit and another amicus brief in support of a cert petition in a similar case, US v. Young, a few years ago.)  After seeing the cert grant in Walker, I reached out to some law professor colleagues and we filed earlier this month this SCOTUS amicus brief in US v. Walker, and here is part of the brief's Summary of Argument:

This Court’s interpretation of the reach of the Armed Career Criminal Act (ACCA), if properly informed by constitutional principles, must avoid application to Petitioner of the ACCA’s fifteen-year mandatory minimum prison term based on his possession of thirteen bullets in violation of 18 U.S.C. § 922(g)(1).  Because mere possession of ammunition is the most passive of crimes — in fact, most States do not even criminalize this behavior and it almost never results in severe punishment — a mandatory fifteen-year prison term is arguably disproportionately harsh.  That Petitioner possessed a small amount of ammunition, that he lacked any vicious or menacing mens rea, and that his prior convictions are decades old serve as additional factors suggesting that a mandatory minimum fifteen-year federal sentence for Petitioner’s offense is constitutionally suspect under any and all jurisprudential approaches to the Eighth Amendment.

As this Court has explained, the “canon of constitutional avoidance is an interpretive tool, counseling that ambiguous statutory language be construed to avoid serious constitutional doubts.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009)....  Given extensive litigation over what predicate offenses qualify for ACCA’s enhanced penalties, there is little question that this Court confronts ambiguous statutory language in this case.  In turn, because any sound approach to the Eighth Amendment suggests serious constitutional doubts about the application of a fifteen-year mandatory sentence for “one of the most passive felonies a person could commit.”  Solem v. Helm, 463 U.S. 277, 296 (1983), the canon of constitutional avoidance provides support for the narrower interpretation of ACCA advanced by Petitioner.  Further, the absence of a modern Court application of the Eighth Amendment to a federal non-capital adult sentence suggests that this constitutional right is precisely the kind of constitutional norm that cautions judicial restraint when interpreting an ambiguous statute.

As this case highlights, broad interpretations of ACCA present a heightened risk of constitutionally questionable mandatory minimum sentences.  This Court should limit that risk by adopting the ACCA interpretation put forward by the Petitioner.

Notably, though I believe our amicus brief was the only one to raise Eighth Amendment issues, another half dozen amicus briefs were filed earlier this month supporting the petitioner.

But, sadly, petitioner's counsel filed this notice last week reporting that James Walker passed away on January 22, 2020.  In accord with its practice, the Supreme Court via this morning's order list, dismissed the writ of certiorari in this case.  I suspect that SCOTUS will before too long take up a replacement case to address the ACCA statutory issue, though I sincerely hope there are not a lot of other cases in the pipeline that also involve application of ACCA's extreme 15-year mandatory minimum term to simple possession of a small amount of ammunition.  If there are, I surely will continue to complain about this extreme sentencing provision.

January 27, 2020 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Wednesday, November 13, 2019

Attorney General Barr announces "Project Guardian" as part of plan to reduce gun violence

As reported in this Hill piece, the "Department of Justice (DOJ) on Wednesday unveiled a program that aims to reduce gun violence including through the creation of guidelines to prosecute those who make false statements while trying to get a gun." Here is more:

The five-point plan includes coordinated prosecution, enforcing the background check system, improved information sharing, a coordinated response for mental health denials, and crime gun intelligence coordination, according to a DOJ statement.

The department seeks to coordinate prosecution under the "Project Guardian" program by considering federal prosecution for those who were arrested for possessing a firearm, are believed to have used a firearm while committing violence or drug trafficking, or who is suspected of actively committing violent crimes in connection with a criminal organization.

To enforce background checks, attorneys general, in connection with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) will create or renew guidelines for prosecuting those who make false statements while trying to get a firearm. Those who have been convicted of violent felonies and domestic violence misdemeanors, among others, will be given special emphasis....

Attorney General William Barr said in a statement that the plan shows the DOJ's commitment to reducing gun violence. "Project Guardian will strengthen our efforts to reduce gun violence by allowing the federal government and our state and local partners to better target offenders who use guns in crimes and those who try to buy guns illegally,” he said.

He also said during a press conference in Memphis, Tenn., that the program would be applied with exceptional "vigor" in areas with high levels of gun violence. "We're going to apply it with special vigor where gun violence is the highest, in places like Memphis," he said....

The attorney general said Wednesday that the administration came up with a series of related legislative proposals, but added they could not move forward due to the probe into the president's dealings with Ukraine. “Unfortunately, our discussions on the legislative aspects of this have been sidetracked because of the impeachment process on the Hill and so we are going forward with all of the operational steps,” Barr said.

“We certainly are always willing to pursue legislative measures that will enhance the fight against violent crime but right now it does not appear to things in Washington are amenable to those kinds of negotiations and compromises,” he added.

Gun violence prevention group March for Our Lives, which was founded after a mass shooting at a school in Parkland, Fla., criticized the program as a "racialized" tough-on-crime plan. "We’ve seen racialized ‘tough on crime’ plans before. It doesn’t work," the group tweeted. "We ought to be tough on injustice, economic oppression and inequality. Our country has a gun violence problem. It’s sources vary, but the common factor is easy access to guns."

I cannot help but wonder if, among the shelved legislative proposals, was some follow up on the talk from a few months ago of draft legislation to expedite the death penalty as part of package response to mass shootings. Even without legislative proposals, the announced "Project Guardian" initiative (set forth in this press release with this linked DOJ guidance memo) provides plenty to wonder about in terms of coming prosecutions and sentencings in the federal system.

As noted in this post, just this past Friday Deputy Attorney General Jeffrey Rosen highlighted in a speech that the current Justice Department has "increased federal firearm prosecutions by over 40 percent compared to the last two years of the previous administration."  I presume that this uptick in firearm prosecutions will continue and perhaps even accelerate as a result of "Project Guardian."  I would welcome comments from anyone working "on the ground" in the federal criminal justice system about whether and how they think  "Project Guardian" could prove consequential.

UPDATE: The Justice Department has released the text of Attorney General William Barr's remarks in Memphis at the launch of Project Guardian. Here is a snippet:

What we are trying to do is take those Triggerlock principles that were successful in the past and revamp this program, resuscitate it, and double down on it nationwide.

This is a national program.  It will be in every district.  The idea is to use our existing gun laws to incapacitate the most dangerous and violent offenders.  As most of you know, with Project Safe Neighborhoods, which is one of the flagship programs of the Department of Justice, we do go after the armed felons.  But that program is regionally based; we go after particular areas.

Project Guardian is a national initiative to comprehensively attack gun violence through the aggressive enforcement of existing gun laws.

This will be implemented nationwide in every federal district.  We are going to apply pressure with vigor where gun violence is the highest in places like Memphis. Local agencies will be involved, but ATF will be leading this effort.  It will involve all federal law enforcement agencies working closely with our state and local colleagues.

November 13, 2019 in Gun policy and sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Monday, September 02, 2019

Talk of draft legislation to expedite death penalty as part of package response to mass shootings

As reported in this new Fox News piece, headlined "White House, DOJ working to expedite death penalty for mass shooters," it appears next week we will see the Trump Administration advance a proposal to expedite executions for mass murderers. Here are the basics:

The White House said Monday it has drafted legislation with the Justice Department that would expedite the death penalty for people found guilty of committing mass shootings, following Saturday's attack in West Texas that left seven dead, according to a pool report.

Vice President Mike Pence's chief of staff, Marc Short, told reporters aboard Air Force Two that the initiative was part of a larger White House gun control package that will be sent to Congress after lawmakers return from their August recess on Sept. 9. Attorney General Bill Barr is involved in active discussions with the vice president's office, Short said, as the plane made its way to Ireland.

The issue could be contentious among Democrats seeking to unseat President Trump in 2020. Former Texas Rep. Beto O'Rourke has sought to revive his struggling candidacy by calling for a mandatory buyback of what he called "assault weapons" -- but he also has insisted, in a recent policy shift, that capital punishment is categorically wrong.

Still, there has been little hesitation from the Trump administration on the issue. In August, Trump said he was “directing the Department of Justice to propose legislation ensuring that those who commit hate crimes and mass murders face the death penalty," adding that he wanted "capital punishment be delivered quickly, decisively, and without years of needless delay.”

Earlier this summer, Barr said the federal government will resume capital punishment and will move forward with plans to execute five inmates on death row for the first time in more than 15 years....

In a letter last month to President Trump, House Speaker Nancy Pelosi, D-Calif., specifically pushed for the House-passed Bipartisan Background Checks Act and the Enhanced Background Checks Act. Some of the House-sponsored legislation would extend the time period for the FBI to conduct background checks on firearm purchases from three days to 10 days and establish new background-check procedures for private gun transfers.

Many Republicans said they hoped to take action to curb gun violence. House Minority Leader Kevin McCarthy, R-Calif., said his party has been interested in “common sense solutions to prevent this from happening in the future while at the same time protecting due process for anyone who is a law-abiding citizen.”...

For his part, Senate Majority Leader Mitch McConnell, R-Ky., has said that so-called "red flag" warning legislation, as well as expanded background checks, would be "front and center" on the Senate floor when Congress comes back in session.

However, red flag laws might be unconstitutional, some conservatives have said, and states and local governments increasingly have sparred over the issue. More than a dozen states have enacted red flag laws. In March, Colorado's attorney general testified that county sheriffs vowing not to enforce the state's anti-gun "red flag" bill should "resign."

Red flag laws generally require friends or family to establish by a "preponderance of the evidence" -- a relatively lax legal standard essentially meaning that something is "more likely than not" -- that a person "poses a significant risk to self or others by having a firearm in his or her custody or control or by possessing, purchasing or receiving a firearm."

Given the strict constitutional regulation of the death penalty and the practical challenges posed by big capital cases, I doubt any proposed legislation would or could significantly fast-track capital prosecutions and executions. Consider, for example, the big federal capital prosecutions emerging form the Boston Marathon bombing and the Charleston Church shooting. It took nearly two years to secure death sentences for Dzhokhar Tsarnaev and Dylann Roof, and even longer for the (still-pending) direct appeals to take place.  Even if some form of legislation could somehow cut the procedural timelines for these cases, it still seems likely that the better part of a decade or more will always transpire between any mass murder and any ultimate federal execution of its perpetrator.

For these reasons, I am hopeful (but not optimistic) that Democratic leaders will not let general opposition to the death penalty get in the way of building a legislative package of common-sense gun control reforms.  Reasonable gun control efforts might possibly have some impact on the still-extraordinary level gun violence in the US, whereas any legislation looking to speed up capital cases for mass murderers likely will have, at most, a slight impact on a very small handful of cases.

September 2, 2019 in Death Penalty Reforms, Gun policy and sentencing, Who Sentences | Permalink | Comments (12)

Wednesday, July 24, 2019

Eleventh Circuit panel finds federal prisoner can file a second or successive § 2255 based on SCOTUS Davis ruling

A helpful reader made sure I did not miss that an Eleventh Circuit panel issued an intricate ruling yesterday in In Re: Wissam Hammoud, No. 19-12458 (11th Cir. July 23, 2019) (available here), concerning the potential retroactive application of the Supreme Court's recent important vagueness ruling in Davis. Here is part of the opinion that highlight what it is intricate:

In his present application, Hammoud contends that his § 924(c) conviction in Count 5 is no longer constitutionally valid.  Specifically, Hammoud asserts that § 924(c)(3)(B)’s residual clause is unconstitutional, in light of the new rule of constitutional law set forth in Davis, Dimaya, and Johnson, and that his companion solicitation conviction in Count 3 could have qualified as a “crime of violence” only under § 924(c)’s now-defunct residual clause.

To determine whether Hammoud’s proposed Davis claim meets the statutory criteria, we must first address three preliminary issues: (1) whether Davis announced a new rule of constitutional law; (2) if so, whether Davis has been made retroactively applicable to cases on collateral review by the Supreme Court; and (3) whether Hammoud’s Davis claim is barred under our precedent in In re Baptiste, 828 F.3d 1337 (11th Cir. 2016).  Only after addressing these issues may we consider the merits of Hammoud’s claim

This prisoner makes it through all of these hoops, so that this opinion ends: "Accordingly, because Hammoud has made a prima facie showing of the existence at least one of the grounds set forth in 28 U.S.C. § 2255, his application for leave to file a second or successive motion is hereby GRANTED as to his Davis claim regarding his § 924(c) conviction in Count 5."

July 24, 2019 in Gun policy and sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, July 17, 2019

Following his conviction on all counts, Joaquín "El Chapo" Guzmán receives an LWOP (plus 30 years!) federal sentence

As reported in this USA Today piece, "drug lord Joaquín 'El Chapo' Guzmán Loera was formally sentenced Wednesday to life in prison plus 30 years on drug trafficking and weapons charges." Here is more:

Guzmán, 62, a leader of Mexico's Sinaloa narcotics cartel, briefly spoke at the hearing, claiming his trial was "stained" by juror misconduct.

U.S. District Court Judge Brian Cogan imposed the sentence amid bomb-sniffing dogs, automatic rifle-toting agents and other extra security measures at the Brooklyn federal courthouse. Guzman, who wore a gray suit to the proceedings, has a history of complex and spectacular escapes from Mexican jails.

Guzman was also ordered to forfeit $12,666,191,704 based on the quantity and the value of the drugs in his crimes. There were no details available on how much, if any, money is actually available.

Guzmán, who did not testify in his own defense during the trial, complained to the judge Wednesday about conditions in jail, saying the water was unsanitary and that he was denied sufficient access to his wife and young daughters.

Defense lawyers have signaled that they plan to appeal the conviction, as well as Cogan's recent denial of a motion for an evidentiary hearing and new trial based on what they viewed as potential evidence of misconduct.

“My case was stained and you denied me a fair trial when the whole world was watching,” Guzman said in court through an interpreter. “When I was extradited to the United States, I expected to have a fair trial, but what happened was exactly the opposite.”

In a sentencing letter filed last week, prosecutors reiterated that life behind bars is the mandatory punishment for one of the crimes on which a federal jury found Guzmán guilty five months ago. The case has drawn international attention, and the line to get into the proceeding started forming Tuesday. By dawn on Wednesday, more than 50 media representatives and spectators lined the sidewalk outside the courthouse.

Guzmán is best known as a former leader of Mexico's Sinaloa drug cartel who gained fame by twice breaking out of high-security prisons in his native country – a feat he has thus far been unable to replicate in the U.S. Depending on U.S. Bureau of Prisons decisions, he could be sent to the so-called Alcatraz of the Rockies, the "administrative maximum" prison in Florence, Colorado. There he would join, but likely never meet, fellow inmates such as Unabomber Ted Kaczynski, Boston Marathon bomber Dzhokhar Tsarnaev, Sept. 11 conspirator Zacarias Moussaoui and Oklahoma City bombing accomplice Terry Nichols.

Guzmán's nearly 12-week trial ended in February with a jury of eight women and four men finding the defendant guilty on all counts during the sixth day of deliberations. The charges against Guzmán included drug trafficking and weapons counts stemming from his leadership role in the cartel's smuggling tons of cocaine and other drugs into major U.S. cities during a criminal career that stretched for decades....

The guilty verdict on the charge he engaged in a continuing criminal enterprise mandated a life prison term because of the jury's separate guilty votes on three sentencing enhancements. In a legal quirk, Guzmán's conviction for unlawful use of a machine gun in tandem with the drug crimes means he also faces the mandatory but likely unnecessary 30-year sentence that must run consecutively with the life term.

The sentencing seemingly marks an official end of Guzmán's reign as one of the world's most notorious drug lords, though his more than two years in solitary confinement in U.S. jails before the conviction had already removed him from the narcotics trafficking fray.

By many accounts, however, the Sinaloa cartel continues to thrive as it competes with other international drug trafficking organizations and diversifies into other businesses.

July 17, 2019 in Celebrity sentencings, Drug Offense Sentencing, Gun policy and sentencing | Permalink | Comments (0)

Monday, June 24, 2019

SCOTUS, ruling 5-4, finds part of 924(c) unconstitutionally vague in Davis

This morning the Supreme Court in US v. Davis, No. 18-431 (S. Ct. June 24, 2019) (available here), has issues another huge ruling finding an important federal criminal statute unconstitutionally vague. The majority opinion in Davis is authored by Justice Gorsuch and starts this way:

In our constitutional order, a vague law is no law at all.  Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them.  Vague laws transgress both of those constitutional requirements.  They hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct.  When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.

Today we apply these principles to 18 U. S. C. §924(c).  That statute threatens long prison sentences for anyone who uses a firearm in connection with certain other federal crimes. But which other federal crimes?  The statute’s residual clause points to those felonies “that by [their] nature, involv[e] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” § 924(c)(3)(B).  Even the government admits that this language, read in the way nearly everyone (including the government) has long understood it, provides no reliable way to determine which offenses qualify as crimes of violence and thus is unconstitutionally vague.  So today the government attempts a new and alternative reading designed to save the residual clause. But this reading, it turns out, cannot be squared with the statute’s text, context, and history.  Were we to adopt it, we would be effectively stepping outside our role as judges and writing a new law rather than applying the one Congress adopted.

Justice Kavanaugh authors a very lengthy dissent for himself and three other Justices that starts this way:

Crime and firearms form a dangerous mix. From the 1960s through the 1980s, violent gun crime was rampant in America.  The wave of violence destroyed lives and devastated communities, particularly in America’s cities.  Between 1963 and 1968, annual murders with firearms rose by a staggering 87 percent, and annual aggravated assaults with firearms increased by more than 230 percent.

Faced with an onslaught of violent gun crime and its debilitating effects, the American people demanded action. In 1968, Congress passed and President Lyndon Johnson signed the Gun Control Act.  That law made it a separate federal crime to use or carry a firearm during a federal felony. Despite that and other efforts, violent crime with firearms continued at extraordinarily dangerous levels.  In 1984 and again in 1986, in legislation signed by President Reagan, Congress reenacted that provision of the 1968 Act, with amendments.  The law now prohibits, among other things, using or carrying a firearm during and in relation to a federal “crime of violence.” 18 U. S. C. §924(c)(1)(A).  The law mandates substantial prison time for violators.

Over the last 33 years, tens of thousands of §924(c) cases have been prosecuted in the federal courts. Meanwhile, violent crime with firearms has decreased significantly.  Over the last 25 years, the annual rate of murders with firearms has dropped by about 50 percent, and the annual rate of nonfatal violent crimes (robberies, aggravated assaults, and sex crimes) with firearms has decreased by about 75 percent.  Violent crime in general (committed with or without a firearm) has also declined. During that same time period, both the annual rate of overall violent crime and the annual rate of murders have dropped by almost 50 percent.  Although the level of violent crime in America is still very high, especially in certain cities, Americans under the age of 40 probably cannot fully appreciate how much safer most American cities and towns are now than they were in the 1960s, 1970s, and 1980s.  Many factors have contributed to the decline of violent crime in America. But one cannot dismiss the effects of state and federal laws that impose steep punishments on those who commit violent crimes with firearms.

Yet today, after 33 years and tens of thousands of federal prosecutions, the Court suddenly finds a key provision of §924(c) to be unconstitutional because it is supposedly too vague. That is a surprising conclusion for the Court to reach about a federal law that has been applied so often for so long with so little problem.  The Court’s decision today will make it harder to prosecute violent gun crimes in the future.  The Court’s decision also will likely mean that thousands of inmates who committed violent gun crimes will be released far earlier than Congress specified when enacting §924(c). The inmates who will be released early are not nonviolent offenders.  They are not drug offenders.  They are offenders who committed violent crimes with firearms, often brutally violent crimes.

June 24, 2019 in Gun policy and sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, June 23, 2019

Were lawyers busy all weekend drafting "Rehaif motions" seeking relief for "tens of thousands of prisoners" potentially impacted by the SCOTUS decision?

The question in the title of this post is prompted by the dire claims appearing in Justice Alito's dissent in Friday's Supreme Court ruling in Rehaif v. US, No. 17-9560 (S. Ct. June 21, 2019) (available here).  At the start of his dissent, Justice Alito frets that the Court's ruling in Rehaif "will create a mountain of problems with respect to the thousands of prisoners currently serving terms for §922(g) convictions" and that "[a]pplications for relief by federal prisoners sentenced under §922(g) will swamp the lower courts."  At the end of his dissent, he returns to this lament (with cites removed):

Although the majority presents its decision as modest, its practical effects will be far reaching and cannot be ignored. Tens of thousands of prisoners are currently serving sentences for violating 18 U.S.C. § 922(g).  It is true that many pleaded guilty, and for most direct review is over.  Nevertheless, every one of those prisoners will be able to seek relief by one route or another.  Those for whom direct review has not ended will likely be entitled to a new trial.  Others may move to have their convictions vacated under 28 U.S.C. § 2255, and those within the statute of limitations will be entitled to relief if they can show that they are actually innocent of violating §922(g), which will be the case if they did not know that they fell into one of the categories of persons to whom the offense applies.  If a prisoner asserts that he lacked that knowledge and therefore was actually innocent, the district courts, in a great many cases, may be required to hold a hearing, order that the prisoner be brought to court from a distant place of confinement, and make a credibility determination as to the prisoner’s subjective mental state at the time of the crime, which may have occurred years in the past.  This will create a substantial burden on lower courts, who are once again left to clean up the mess the Court leaves in its wake as it moves on to the next statute in need of “fixing.”...

The majority today opens the gates to a flood of litigation that is sure to burden the lower courts with claims for relief in a host of cases where there is no basis for doubting the defendant’s knowledge.

Though I am not sure that the litigation following the Court's decision in Rehaif will amount to a flood, I am sure that it will be interesting to see just how this ruling echoes through the lower courts in the weeks and months ahead.

June 23, 2019 in Gun policy and sentencing, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (3)

Friday, April 26, 2019

Recapping a notable week of SCOTUS criminal justice arguments

As flagged in this Monday post, the Supreme Court's final week of oral arguments for this Term, which took place this past week, included hearings on three cases involving notable criminal justice issues.  We likely should not expected written decisions in Mitchell v. Wisconsin, Rehaif v. United States or Quarles v. United States until late June, but SCOTUSblog provides a sense of where the Court might be headed in these cases through these argument analysis posts:

On Mitchell by Amy Howe, "Justices debate warrantless blood draw for unconscious drunk driver"

On Rehaif by Evan Lee, "Court leaning toward requiring the government to prove that a felon in possession knew he was a felon"

On Quarles by Rory Little, "ACCA argument becomes a broader discussion of statutory interpretation"

Interesting jurisprudential developments could emerge from all three of these cases, but the Rehaif case has an issue lurking that could possibly impact lots and lots of federal prosecutions for felon in possession of a firearm under 18 U.S.C. § 922(g).  

April 26, 2019 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, February 25, 2019

After swift cert denial in Rivera-Ruperto, should I just give up hoping for an improved Eighth Amendment to check extreme non-capital sentences?

Intrepid readers may realize that I have paid close attention to a case out of the First Circuit, US v. Rivera–Ruperto, because I thought it involved extraordinarily facts that made for a compelling Cruel and Unusual Punishments argument if that clause was to function as even the most minimal check on the imposition of extreme prison sentences on adult offenders.  But, frustratingly, today's Supreme Court order list has under a long list of cert denials "18-5384  Rivera-Ruperto, Wendell v. United States."  Grrrr.

Of course, I was not the only one who thought this was was exceptional: as noted here, the entire First Circuit issued a remarkable opinion last year while denying en banc review (available here) in which Judge Barron spoke for all his colleagues in urging the Justices to take up the Rivera-Ruperto to reconsider its Eighth Amendment jurisprudence.  I was sincerely hoping that this unusual statement from an entire circuit might at least get Rivera-Ruperto a single relist from the Supreme Court or maybe just a short statement from some Justices about the issue.  A single relist or a statement about a denial of cert would suggest that there was at least a single Justice who might think that a toothless Eighth Amendment is a problem in an era of mass incarceration.  (Tellingly, the legal press and criminal justice twitterverse has also entirely ignored this case, confirming my fears that one need to be a murderer on death row before just about anyone gets interested in an Eighth Amendment claim.)

I still want to hope that maybe a district court or the First Circuit could find a way to do better in this case when Wendell Rivera-Ruperto eventually brings a 2255 claim (which could now juice an Eighth Amendment argument, as I suggested here, on the fact that the FIRST STEP Act has changed the federal law that lead to his 130 years of mandatory-minimum prison time).  But even if Rivera-Ruperto is able to get some relief eventually, I am still this morning left deeply troubled by the notion that not a single Justice seems to be at all concerned about modern Eighth Amendment jurisprudence relating to extreme non-capital sentences.  Sigh. 

A few prior related posts:

February 25, 2019 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, February 10, 2019

Doesn't the FIRST STEP Act add juice to Eighth Amendment challenge to extreme stacked 924(c) sentence in Rivera-Ruperto?

The question in the title of this post is prompted by the interesting intersection of an important sentencing reform in the new FIRST STEP Act and an important Eighth Amendment case that I have had my eye on for some time  finally getting before the Supreme Court.  Let me explain, starting with the FIRST STEP provision.

For those particularly concerned about extreme mandatory minimum sentences, Section 403 of the FIRST STEP Act is a heartening overdue change to federal sentencing law.  This provision, described as a "clarification of Section 924(c)," now eliminates the required "stacking" of 25-year mandatory minimums for using a firearm during other crimes for those offenders without a prior record convicted of multiple 924(c) counts at the same time.  In other words, the extreme 25-year recidivism enhancement of 924(c) is now to apply only to actual recidivists.

The prior requirement of "stacking" 924(c) counts led to Weldon Angelos' extreme 55-year mandatory-minimum sentence for selling marijuana with his personal guns nearby (which is discussed at length here by Paul Cassell, the judge forced to impose the sentence).  US Sentencing Commission data here and here shows that well over 100 offenders each year have been subject to convictions for multiple 924(c) counts.  Just a few of many extreme 924(c) stacked sentences are noted in prior posts here and here and here and here.  Sadly, Congress did not make Section 403 of the FIRST STEP Act retroactive, and thus defendants previously subject to these extreme stacked sentences will get no direct relief from the new Act.

But there is one particular defendant with a particularly extreme stacked 924(c) sentence that I am hoping might get some indirect benefit from the new law in his on-going Eighth Amendment litigation.  Wendell Rivera–Ruperto, who was paid in 2010 by undercover FBI informants to serve as "armed security" at six faux drug deals, received a federal sentence of nearly 162 years, of which 130 years were for his six stacked convictions under 924(c).  As discussed here a year ago, in a terrific First Circuit opinion denying rehearing en banc in United States v. Rivera-Ruperto, No. 12-2364 (1st Cir. Feb 27, 2018) (available here), Judge David Barron lamented how judges "have no choice but to approve mandatory 'forever' sentences ... so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal conduct was as serious as the large quantity drug possession at issue in Harmelin."  In so doing, Judge Barron highlights many questionable elements of the Harmelin ruling and, writing on behalf of the entire First Circuit, suggests SCOTUS take up Rivera–Ruperto to reconsider the "three-decades old, three-Justice concurrence in Harmelin."

As of a few days ago, as revealed in this SCOTUS docket sheet, all the cert papers have been finally filled in Rivera–Ruperto, and the Justices will consider the case at their February 22 conference.  Notably, and not surprisingly, the feds now say in opposition to cert that passage of the FIRST STEP Act reduces the important of the case: "future defendants in petitioner's position will not be subject to mandatory consecutive sentences of at least 25 years [and the] question presented by his case therefore has diminishing significance."  But, as the title of this post is meant to suggest, the fact that the Eighth Amendment is supposed to take guidance from an "evolving standards of decency" and be responsive to a "national consensus" against a sentence, I strongly believe the enactment of the FIRST STEP Act primarily operates to make Wendell Rivera–Ruperto's constitutional claim even more substantively potent. 

As I explained here, I see Justice Anthony Kennedy's departure as creating a new window of opportunity for advocates to urge overturning (or cutting back) the terrible Eighth Amendment precedent that is Harmelin.  Thus, I am rooting super hard for the Justices to grant cert in Rivera–Ruperto.   I am fearful the Court will remain fearful of taking on these issues and thus leave the (now-even-stronger) Eighth Amendment claim in this case to be considered anew through an inevitable 2255 motion.  Still, my fingers are crossed to support the cert chances of potentially the biggest non-capital Eighth Amendment case in a generation.

A few prior related posts:

February 10, 2019 in Drug Offense Sentencing, Examples of "over-punishment", FIRST STEP Act and its implementation, Gun policy and sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, January 22, 2019

Supreme Court grants cert in potentially big Second Amendment case out of New York City

In this post from over the weekend, I commented again on the Second Amendment's second-class status as evidenced by how its protections are general understood and applied in lower courts.  In that post, I might also have noted how long it has been since the Supreme Court has even taken up Second Amendment issues given that District of Columbia v. Heller was decided a way back in 2008 and McDonald v. Chicago was back in 2010. But, via this order list today, the Supreme Court has now given itself another opportunity to develop Second Amendment jurisprudence through a grant of certiorari in New York State Rifle & Pistol Association Inc. v. City of New York, New York. Here is how the cert petition sets up the Question Presented in this case:

New York City prohibits its residents from possessing a handgun without a license, and the only license the City makes available to most residents allows its holder to possess her handgun only in her home or en route to one of seven shooting ranges within the city.  The City thus bans its residents from transporting a handgun to any place outside city limits—even if the handgun is unloaded and locked in a container separate from its ammunition, and even if the owner seeks to transport it only to a second home for the core constitutionally protected purpose of self-defense, or to a more convenient out-of-city shooting range to hone its safe and effective use.

The City asserts that its transport ban promotes public safety by limiting the presence of handguns on city streets.  But the City put forth no empirical evidence that transporting an unloaded handgun, locked in a container separate from its ammunition, poses a meaningful risk to public safety.  Moreover, even if there were such a risk, the City’s restriction poses greater safety risks by encouraging residents who are leaving town to leave their handguns behind in vacant homes, and it serves only to increase the frequency of handgun transport within city limits by forcing many residents to use an in-city range rather than more convenient ranges elsewhere.

The question presented is:

Whether the City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.

Though debates over gun rights on not always germane to sentencing issues, the various ways gun possession and gun use are approached in constitutional law can have many echo effects on criminal justice systems and case processing. So, though not as big a case for sentencing fans as a few others this Term, New York State Rifle Pistol Association is still one I will be watching closely.

January 22, 2019 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (3)

Friday, January 04, 2019

Supreme Court grants cert on vagueness challenges to 924(c) provision in wake of Johnson and Dimaya

As detailed in this new order list, the US Supreme Court today granted certiorari in a number of new cases.  The cases involving Maryland and North Carolina partisan-gerrymandering are sure to get the most attention, but criminal law fans should be excited about the grant in US v. Davis, No. 18-431, in which the feds petitioned for review of this question:

Whether the subsection-specific definition of “crime of violence” in 18 U.S.C. 924(c)(3)(B), which applies only in the limited context of a federal criminal prosecution for possessing, using, or carrying a firearm in connection with acts comprising such a crime, is unconstitutionally vague

This paragraph from the government's petition for cert explains why and how federal prosecutors are eager to distinguish the statutory provision at issue in this case from those struck down in Sessions v. Dimaya, 138 S. Ct. 1204 (2018) and Johnson v. United States, 135 S. Ct. 2551 (2015):

Although the government has previously advocated an ordinary-case categorical approach to the determination whether an offense constitutes a “crime of violence” under Section 924(c)(3)(B), nothing in the statute or the decisions of this Court requires such an approach.  Section 924(c)(3)(B)’s subsection-specific “crime of violence” definition is applicable only to the conduct for which the defendant is currently being prosecuted, not to any conduct for which the defendant may have been convicted in the past.  It can naturally be read as inviting a case-specific determination as to whether that currently at issue conduct — not the hypothetical conduct of an “ordinary case” — satisfies the substantial-risk test in 18 U.S.C. 924(c)(3)(B).  And, so construed, Section 924(c)(3)(B) does not implicate the constitutional infirmity with the ordinary-case approach that was identified in Dimaya and Johnson v. United States, 135 S. Ct. 2551, 2561 (2015).  Indeed, the Court in those cases “d[id] not doubt” that such a case-specific approach, involving a jury finding beyond a reasonable doubt about the “real-world conduct” proved in the case, would be fully constitutional.  Dimaya, 138 S. Ct. at 1215 (quoting Johnson, 135 S. Ct. at 2561).

Got that? Simple stuff here, and simply fascinating to think about whether the Dimaya five (perhaps joined by the new guy) could be prepared to continue its vagueness movement through the bowels of federal law.

January 4, 2019 in Gun policy and sentencing, Procedure and Proof at Sentencing, Vagueness in Johnson and thereafter | Permalink | Comments (6)