Sentencing Law and Policy

The process is the punishment: Donald Trump receives sentence of "unconditional discharge" in New York state prosecution

I have just finished listening to today's hearing as part of the state court sentencing in Trump v. New York, at the end of which he received the expected sentence of "unconditional discharge."  The event was full of interesting elements and ironies (eg, Trump was given the sentence recommended by prosecution, and now can move forward with appeals).   If time and energy permits in the coming weeks, I may turn to the Sentencing Matters Substack for some longer commentary/reflection on this historic event. 

For now, I am just going to note that sentence imposed got me thinking about the title of a famous 1979 criminal justice book by Malcolm Feeley, "The Process is the Punishment: Handling Cases in a Lower Criminal Court."  One big theme of the book, as put in this linked summary, is that "the real costs to those accused of misdemeanors and lesser felonies are not the fines and prison sentences meted out by the court, but the costs incurred before the case even comes before the judge."  That theme came to mind when Trump began his statement to the court today by stating "This has been a very terrible experience."  I suspect that statement resonates with so many criminal defendants and their friends and family, and maybe even more than a few judges and prosecutors.   

What kind of Second Amendment case will be next for SCOTUS after Bruen and Rahimi?

Anyone and everyone following Second Amendment litigation since the Supreme Court's landmark Bruen ruling knows that it is not a question of whether, but just a matter of when, the Justices will take up challenges to various federal criminal gun prohibitions to continue adumbrating for lower courts just how they think originalistism is supported to work here.  The Rahimi ruling, perhaps unsurprisingly, only deepened uncertainties (and lower court splits) on various issues, and a number of recent pieces highlighting just some of the Second Amendment jurisprudential messiness has me feeling somewhat more sure another Second Amendment cert grant will be coming soon.  But these articles and other matters also have me feeling somewhat less sure about what particulars issues and cases the Court will decide to take up:  

From Bloomberg Law, "Gun Litigation Will Keep Federal Appeals Courts Busy in 2025"

From the New York Times, "Courts in ‘State of Disarray’ on Law Disarming Felons"

From Reason, "5th Circuit Reaffirms That Prosecuting a Marijuana User for Illegal Gun Possession Was Unconstitutional"

From Stateline, "Judges topple gun restrictions as courts chart an uncertain path forward"

From The Volokh Conspiracy, "Ohio Court Strikes Down Categorical Prohibition on Gun Possession by People Under Indictment"

As some of the above articles highlight, there is a wide array of churning lower-court litigation assailing gun restrictions well beyond federal criminal prohbitions in 18 USC § 922(g), and so it is certainly possible that the Justices might take up disputes over restrictions on types of guns or other regulatory matters before addressing federal possession prohibitions again.  In addition, because the incoming Trump administration could be more supportive of a more expansive view of the Second Amendment, the Supreme Court's approach to 922(g) disputes migth get influence by some new advocacy coming soon from the Justice Department.

Interesting times.

"Grasping the Third Rail: Restorative Justice and Violent Crime"

The title of this post is the title of this new paper now available via SSRN authored by Olwyn Conway. Here is its abstract:

Restorative justice is a means of responding to harm — including criminal offenses — through active accountability and repair, rather than through passive punishment and isolation.  While restorative justice has demonstrated potential to meaningfully improve processes and outcomes for individuals and communities, the implementation of restorative justice programs to address crime — both within and alongside the American criminal system — has been slow, limited, and misplaced.  Programs are often directed at low‑level, nonviolent offenses that involve little if any cognizable harm.  This approach creates two problems.  One, it risks net‑widening: bringing more citizens under criminal surveillance and carceral control for minor offenses — further diluting the constitutional and procedural protections already watered‑down in our misdemeanor courts.  Two, it ignores the research showing that restorative justice is more necessary and more effective in cases where serious harm has occurred.

As restorative justice offerings across the country expand, legislators and prosecutors continue to exclude crimes of violence, particularly domestic and intimate partner violence and sexual offenses, from their initiatives.  These offenses have become the “third rails” of restorative justice.  Yet it is precisely in these cases that conventional criminal system responses are failing.  It is also in these cases that restorative justice has the greatest potential to meet the needs of involved parties and reduce rates of reoffending.  So why are they considered off‑limits?  This is partly due to pervasive misunderstandings and misconceptions of what restorative justice is and how it operates, both in theory and in practice.

It is time to grasp restorative justice’s third rail: to reconsider how and where it is being used in the criminal system and explore what restorative justice could offer in the pursuit of more effective and equitable responses to violent crime.

Facing guidelines recommending decades in prison, former Senator Menendez requests "sentence that relies heavily on alternatives to incarceration"

As reported in this New York Times piece, weeks "before Robert Menendez, New Jersey’s disgraced former U.S. senator, is scheduled to be sentenced for corruption, his lawyers submitted an emotion-laden appeal for leniency based on what they depicted as Mr. Menendez’s hardscrabble upbringing, life of service and devotion to family."  Here is more about the sentencing filing:

As they did during Mr. Menendez’s two-month bribery trial in Manhattan, [his lawyers] suggested that their client’s greatest failing was being led astray by a conniving wife. Nadine Menendez, the former senator’s wife, was charged with her husband with conspiring to trade his political influence for bribes of cash, gold bars and a Mercedes-Benz convertible. Her trial is expected to start next month....

“The evidence showed that Senator Menendez was unaware of activities that Nadine was undertaking, including the receipt and sale of gold bars by Nadine, and cash she stored in her locked closet and her safe deposit box,” the lawyers wrote in their filing.

And in a letter of support also filed on Thursday, Mr. Menendez’s daughter, Alicia Menendez, a high-profile anchor on the cable news network MSNBC, hinted at the sacrifices her father continued to make for his wife, who was being treated for breast cancer....

Her letter is among more than 120 filed on behalf of Mr. Menendez, part of an attempt to justify a prison term far shorter than the 12 years recommended by the court’s probation department. The U.S. attorney’s office for the Southern District of New York, which prosecuted Mr. Menendez, is expected to disclose the government’s sentencing recommendation in the coming weeks....

In Thursday’s filing, the former senator’s lawyers argued that the probation department’s recommendation of a 12-year prison term was “draconian — likely a life and death sentence for someone of Bob’s age and condition.” [The lawyers] suggested that the guidelines instead merited a sentence of no more than 27 months — and even that, they wrote, was too long. They urged Judge Stein to consider a period of imprisonment of less than 27 months paired with “at least two years’ rigorous community service.”

“He is certain never to commit future offenses,” the lawyers wrote about Mr. Menendez. “And his current state — stripped of office and living under a permanent shadow of disgrace and mockery — are more than sufficient to reflect the seriousness of the offenses and to promote respect for the law.”

The full 52-page sentencing filing is available at this link, and concludes with this paragraph:

For the foregoing reasons, the sentencing factors set out in Section 3553(a), as applied to the circumstances of this defendant and case, justify a substantially below-Guidelines sentence that credits Senator Menendez’s lifetime of good deeds and good character, his low likelihood of offending in the future, and the punishment he has already sustained due to his conviction.  As urged by a friend and former member of the Puerto Rican Senate Roberto L. Prats, “please consider that you are sentencing a good man who devoted his entire professional career to serving others. In doing so, he touched the heart and soul of many citizens, me included, asking for nothing in return.” Ex. U (Letter submitted by Roberto L. Prats, Esq.).  We respectfully submit that the Court should impose a sentence that relies heavily on alternatives to incarceration, as such a sentence is sufficient but not greater than necessary to accomplish the purposes of sentencing under 18 U.S.C. §3553(a).

"Women on Death Row in the United States"

The title of this post is the title of this new paper recently posted to SSRN authored by Sandra Babcock, Nathalie Greenfield and Kathryn Adamson. Here is its abstract:

This Article presents a comprehensive study of forty-eight persons sentenced to death between 1990 and 2022 who were legally recognized as women at the time of their trials.  Our research is the first of its kind to conduct a holistic and intersectional analysis of the factors driving women’s death sentences.  It reveals commonalities across women’s cases, delving into their experiences of motherhood, gender-based violence, and prior involvement with the criminal legal system.  We also explore the nature of the women’s crimes of conviction, including the role of male codefendants and the State’s use of aggravating factors.  Finally, we reveal for the first time the extent to which capital prosecutions are dominated by men — including judges, elected district attorneys, defense attorneys, and juror forepersons.

We present our data against the backdrop of prevalent theories that seek to explain both the rarity of women’s executions and the reasons why certain women are singled out for the harshest punishment provided by law.  We explain why those frameworks are inadequate to understand the role that systemic gender bias plays in women’s capital prosecutions.  We conclude by arguing for more nuanced research that embraces the complexities in women’s capital cases and accounts for the presence of systemic and intersectional discrimination. 

Highligthing great new guest posts at the Sentencing Matters Substack (and welcoming more)

I have been (somewhat inconsistently) highlighting here the weekly posts at the Sentencing Matters Substack that some colleagues and I host to publish longer-form essays on an array of sentencing topics.  I am especially pleased that this month we have published two great new guest posts in that forum:

From Katie Kronick, "Why is it So Hard for Courts to Adjust to Advancements in Knowledge of Human Behavior?: A Death Penalty Case Study"

From Norman Reimer, "First Steps and Second Chances: A Review of "A Second Chance": a Federal Judge’s Perspective on Compassionate Release and a System in Need of Reform"

We are planning a final 2024 substack post new week that provides a brief review of some of the substack's coverage, and it also provides this open invitation for more outside contributions:

We genuinely appreciate you reading our essays and being part of this project.  Through our writing, we are trying to uncover an insight or two and share that thinking in a mildly interesting way.  We hope you will continue to join us as we grapple with the important issues of crime and punishment, remorse and forgiveness, policymaking and politics, law and judging, and freedom and justice in the year to come.  We’d love to hear from you now and then.  And we’d love to bring in new voices to this conversation, including yours, including those serving -- or who have served -- time in prison, victims of crime, prosecutors, defense lawyers, probation officers, judges, other academics, and just other everyday citizens.  We’ve tried to create an aesthetic on this Substack that is serious, at times just a little bit snarky, but always gracious.  If you’re at all inclined to contribute something, let us know. 

"The Impact of United States v. Erlinger on State Recidivist Sentencing Laws"

The title of this post is the title of this notable new essay authored by Chad Flanders just posted to SSRN.  Here is its abstract:

In Erlinger v. United States, the U.S. Supreme Court ruled that finding that an offender had committed two felonies "on separate occasions" under the Armed Career Criminal Act had to be made by a jury, not a judge.  In one respect, the decision is narrow and straightforward: it merely is an extension of the Court's Apprendi jurisprudence.  But in another respect, the decision is far-reaching.  As some state appeals courts have already realized, the decision makes unconstitutional state laws that give the judge -- rather than the jury -- the power to decide whether someone is a "persistent" or "habitual" offender based on whether a defendant's felonies occurred at "different times" or on "separate occasions."  This paper is a call for lawyers and scholars to pay attention to Erlinger.  It also tries to give some guidance to defendants litigating Erlinger violations, courts dealing with these defendants, and state legislatures who will have to fix their now-unconstitutional sentencing laws.

After seven years in office, NJ Gov finally finds his clemeny pen to grant 33 pardons and three commutations

I am disinclined to have this blog drone on with non-stop clemency coverage, but this is the season for grace and today marked the end of one Garden State mystery with New Jersey Governor Phil Murphy finally discovering his clemency power.  This Politico article provides some details:

New Jersey Gov. Phil Murphy on Monday issued 33 pardons and three sentence commutations in his first act of clemency, nearly seven years after he took office.  “My only regret is we did not get to this day sooner,” Murphy said at a Trenton press conference, promising this was just the “first round” of legal relief, with more to come over his final year in office....

Most of the pardons in New Jersey are for non-violent offenses, predominantly property crimes and drug offenses. Some date back to the early 1970s, with the most recent crime being a 2011 conviction for making a false report to law enforcement.

The three sentence commutations are all for women who were convicted of murder, with the most recent one from 2006.  “Over the course of their lives, each one of these women has suffered immense hardship. All of them are survivors in one form or another. But when they were originally sentenced for the crimes they committed years ago, they received sentences that were too long based on what we know today,” Murphy said....

Murphy ran for office as a progressive and instituted several major criminal justice initiatives, including expanding expungement and restoring the right to vote for those on probation and parole. That contrasted with his lack of clemency actions during his seven years in office. Murphy’s recent gubernatorial predecessors from both parties issued pardons or sentence commutations far earlier in their tenure, though most saved the bulk of them for their final year in office.

Murphy in June ordered the formation of a Clemency Advisory Board to consider pardon and commutation applications and make recommendations. The board gave expedited consideration to those convicted of non-violent crimes who later stayed out of the legal system. For commutations, they expedited applications for those given “excessive trial penalty” or if they were victims of domestic violence, sexual violence or sex trafficking.  The Murphy administration also said it made “more robust victim outreach than in prior administrations” ahead of granting clemency.

This official press release from Gov Murphy's office includes the full list of clemency recipients and other details, as well as some quotes from stakeholders (including "criminal justice advocate" Kim Kardashian).

Reviewing basic demographics of home-confinement recipients of Prez Biden's mass commutation

This new USA Today piece, headlined "Who was pardoned in Biden's clemency? Data breakdown of demographics, ages," reports on some general characteristics of the 1499 persons serving time on home confinement who received commutations from Prez Biden last week.  Here are some of the details:

An analysis of data collected by USA TODAY from the Bureau of Prisons showed the demographic split behind the numbers. Among the 1,499 whose sentences were commuted, 1,217 were identified as male and 282 as female.

About 61% of those were white, 37% Black, 1.8% Asian and 0.5% American Indian. Overall, 57% of people in prisons are white, 39% Black, 1.5% Asian and 2.9% American Indian....

The ages of those granted clemency ranged from 25 to 89, with a median age of 51. Many were nearing the end of their sentences; half had a year or less remaining before their projected release.

BJS releases "Federal Prisoner Statistics Collected Under the First Step Act, 2024"

The Bureau of Justice Statistics, today released this 25-page report titled "Federal Prisoner Statistics Collected Under the First Step Act, 2024," which is described as "the sixth in a series as required under the First Step Act of 2018."  Here is the report's introduction and some of the listed  "Key findings" that seemed most interesting to me (from a detailed two-page list):

The First Step Act of 2018 (FSA) requires the Bureau of Justice Statistics (BJS), through its National Prisoner Statistics program, to collect data from the Federal Bureau of Prisons (FBOP) on specific topics and to report these data annually.1 BJS is required to report on selected characteristics of persons in prison, including marital, veteran, citizenship, and English-speaking status; education levels; medical conditions; and participation in treatment and rehabilitation programs. In addition, BJS is required to report facility-level statistics, such as the number of assaults on staff by prisoners; prisoners’ violations of rules that resulted in time credit reductions; and selected facility characteristics, including accreditation, on-site healthcare, remote learning, video conferencing, and costs of prisoners’ phone calls.

Collected in 2024, the statistics in this report are for calendar year 2023, the fifth full year of reporting under the FSA. Data for calendar year 2024 will be available from the FBOP in 2025. Unless otherwise noted, all counts in this report include persons held in federal correctional facilities operated by the FBOP (122 institutional facilities).

Key findings:

• The federal prison population decreased about 2% from yearend 2022 (158,637) to yearend 2023 (155,972)
• At yearend 2023, there were 8,388 persons with prior military service in FBOP facilities, accounting for more than 5% of the total federal prison population.
• The number of non-U.S. citizens in federal prison at yearend 2023 was 22,817, down from 2021 (24,031) and 2022 (24,078).
• In 2023, the average daily population in special housing units, where individuals are securely separated from the general inmate population, was 11,974, an 18% increase from 2022 (10,177).
• In 2023, FBOP staff were physically assaulted by federal prisoners 872 times, which resulted in serious injury 6 times and prosecution of prisoners 3 times (table 7).
• The FBOP had partnerships with 3,047 external groups to provide recidivism reduction programming in 118 federal prison facilities in 2023.
• About 57% (1,747) of the FBOP’s partnerships to provide recidivism reduction programming were with faith-based groups in 2023.
• About 54% of the 143,291 persons in federal prison who had been assessed with the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN) as of December 31, 2023, were classified as minimum or low risk for recidivism.
• About 26% of federal prisoners were classified by PATTERN as high risk for recidivism and about 19% as medium risk at yearend 2023.
• About 82% of female federal prisoners assessed with PATTERN by yearend 2023 were classified as minimum or low risk for recidivism, compared to 52% of male federal prisoners.
• As of December 31, 2023, about 60% of black and 58% of American Indian or Alaska Native federal prisoners were classified by PATTERN as having a medium or high risk of recidivism, compared to about 36% of white and 25% of Asian, Native Hawaiian, or Other Pacific Islander federal prisoners.
• At yearend 2023, 83% of federal prisoners ages 55 to 64 and 94% of those age 65 or older were classified by PATTERN as having a minimum or low risk of recidivism.

New HBO documentary, "Nature of the Crime," examines parole process through two New York murder cases

This short New York Times review flags a new documentary premeiring on Max tonight that seem worth checking out.  Here is the start of the NYT review:

Peering into the heart of the beast we call the justice system, the directors Ricki Stern and Jesse Sweet zero in on parole, a part of the process that usually unfolds behind closed doors.  “Nature of the Crime” offers rare glimpses of the make-or-break interviews that, in more cases than not, deny petitioners their longed-for second chance.  As it traces, over a four-year period, the cycles of hope and despair for two incarcerated men — both in New York prisons for crimes committed in the state — this quiet and affecting documentary is at once an argument for reform and a soul-searching question: Should the guiding principle of criminal justice be retribution or rehabilitation?

The men at the center of the film have been behind bars for more than 30 years.  Todd Scott was 19 when he was charged, alongside three others, with the killing of a rookie police officer in Queens.  Chad Campbell was charged at 14 with committing a horrific double murder in his upstate hometown. Speaking to the filmmakers, and in conversations with their devoted pro bono attorneys, they are thoughtful and sincere.  When they also recall the abuse they suffered as children, they provide context, not excuses.

Highlighting the successes and limited availability of veteran treatment courts

Law360 has this lengthy new piece, headlined "Veterans Courts Help Some, But Leave Many Others Behind," which provides an effective overview of veteran treatment courts and their limits. I recommend the piece in full, and here are excerpts:

Veterans treatment courts have helped thousands of former service members get much needed help for addiction and mental health problems rather than being incarcerated. But strict eligibility criteria, difficulty identifying veterans in the justice system, and a limited number of courts combine to turn away many veterans who most need their services, according to veterans' advocates.

So those advocates are trying to change how the courts operate to ensure that no veteran in need falls through the cracks. "This is not radical. This is about giving a veteran who raised their right hand to serve the United States a hand up, not a handout," said retired U.S. Army Colonel D.J. Reyes, who mentors veteran defendants in Florida. "They made a mistake. Does that mean we just throw them in prison with no rehab or treatment?"...

Hundreds of diversionary courts intended specifically for criminal defendants who served in the military have sprung up across the country since the first veterans treatment court, or VTC, was established in Buffalo, New York, in 2008.

VTCs integrate the criminal justice system, the VA, drug treatment programs, community organizations and veteran mentors to offer help and services rather than incarceration to former service members who run into trouble with the law due to substance abuse or mental health issues.

A growing number of veterans need that help, according to experts, who blame that increase on post-traumatic stress, traumatic brain injuries, addiction, military sexual trauma and difficulty readjusting to civilian life after repeated deployments during the wars in Iraq and Afghanistan.

One in three veterans report having been arrested, according to the Council on Criminal Justice's Veterans Justice Commission. Around 181,000 veterans are currently behind bars, according to All Rise, a nonprofit that provides training and best practices for specialized treatment court programs.

"When we take our young men and women, and we train them to be part of the most lethal force on the planet, and then we ask them to go do their job, some of them struggle when they come home with just being normal again," said Veterans Justice Commission Director Jim Seward.

So VTCs are intended to sentence veterans who plead guilty to usually lower-level, nonviolent offenses to addiction and mental health treatment and mentorship rather than prison. Defendants attend regular treatment sessions, discuss their progress with the court, and undergo random drug testing, among other requirements....

The programs have been successful, according to experts. VTCs help approximately 15,000 veterans each year, according to Scott Tirocchi, division director of Justice for Vets, All Rise's veterans court division.

The court in Hillsborough, Florida, where Reyes mentors defendants, averages a single-digit recidivism rate, he said. In Ohio, Cuyahoga County's court has a graduation rate of 76.2%, according to Judge Andrew J. Santoli, who presides over that VTC. And only 9.1% of the participants of the VTC in Oklahoma County, Oklahoma, are charged with a new offense after completing the program, according to Program Coordinator Kiel Kuroki, a U.S. Air Force veteran who participated in a veterans diversion program himself....

But many of the veterans who most need help aren't getting it, advocates say.  According to the U.S. Department of Justice, VTCs only serve about 10% to 15% of justice-involved veterans....

[T]he exceedingly limited number of VTCs further exacerbates the lack of access.  Around 85% of the counties in America don't have a VTC, and there are barely any veterans courts in the federal court system, according to Seward.

Congress did pass the Veterans Treatment Court Coordination Act in 2020 directing the attorney general to establish a grant program to help fund state and local VTCs, but there seems to be no organized effort to create VTCs at the federal level. Only a few federal VTCs have been established by individual federal judges.... The result is that, while VTCs have helped many service members, a good deal of veterans are still falling through the cracks.

Some of many, many prior related posts:

• Should prior military service reduce a sentence?
• "Military Veterans, Culpability, and Blame" 
• "Justice for Veterans: Does Theory Matter?"
• "Executive Summary: National Survey of Veterans Treatment Courts"
• Notable RAND review of data and research on "justice-involved veterans" 
• CCJ's Veterans Justice Commission releases "Honoring Service, Advancing Safety: Supporting Veterans From Arrest Through Sentencing" 
• "Best Practices: Report on Improving Veterans’ Incarceration and Reentry in Florida"
• Council on Criminal Justice releases new policy roadmap encouraging alternatives to prosecution and incarceration for justice-involved veterans 
• How about some clemency grants, Prez Biden, to really honor vets in need on Veterans Day?

"Sentencing Insurrection"

The title of this post is the title of this new paper authored by Kevin Lapp recently posted to SSRN. Here is its abstract:

On January 6, 2021, an estimated two thousand people broke police lines and breached the U.S. Capitol building in an effort to prevent the certification of the 2020 presidential election results.  Over one thousand people have been charged with various crim­­­­­es for their actions that day, from misdemeanor trespassing charges to felony assault with a weapon and seditious conspiracy.  Relying on publicly available sources, this article present results from an analysis of the first 514 people to have been sentenced in federal court for crimes committed on January 6.  The result is a snapshot of the insurrectionists, the charges they faced, and the punishments federal judges imposed on them.

On demographics, the data suggests that the lawbreaking and political violence of January 6 was not just the work of the usual criminal suspects, so-called right-wing extremists, or residents of former President Trump strongholds. Rather, it was committed by a cohort that more closely resembles mainstream White America.  On punishment, the aggregate results are notable for their leniency.  The cases were much more likely to result in a conviction for only a misdemeanor than typical federal criminal cases.  Prison sentences were imposed much less frequently than usual for federal criminal defendants, and were much shorter in length.

The article also explores the relationships between defendant age and sex, the sentences that judges imposed, and the sex and political party of the President who nominated the sentencing judge.  Several intriguing findings raise questions about scholarship on the politics of sentencing. It also examines where individual judges varied in the imposition of incarceration, sometimes in surprising ways, even accounting for the severity of the offense of conviction.

Finally, the article posits three alternative narratives supported by the data.  One is a story of preserving political stability and the rule of law through prosecution, threatened by lenient sentencing.  Another is judicial corrective to prosecutorial overreach.  A third centers the role of politics, demographics, and bias in the administration of criminal justice.

Pentagon secrets leaker sentenced after plea deal to 15 years in prison

Professor Sam Merchant, in a forthcoming article to appear in the next issue of the Federal Sentencing Reporter, makes the astute point that it is hard to assess or even understand judicial sentencing discretion exericised by federal judges after Booker without a deeper understanding of plea practices.  As he puts it: "If binding or nonbinding plea agreements actually drove the [most federal] sentences, any discussion of judicial discretion that ignores the central role of plea agreements is at best incomplete and at worst inaccurate or misleading."  This insight came to mind when I saw this AP report about today's high-profile sentencing of a "Massachusetts Air National Guard member to 15 years in prison after he pleaded guilty to leaking highly classified military documents about the war in Ukraine." Here are the basics:

Jack Teixeira pleaded guilty earlier this year to six counts of willful retention and transmission of national defense information under the Espionage Act following his arrest in the most consequential national security case in years....

The security breach raised alarm over America’s ability to protect its most closely guarded secrets and forced the Biden administration to scramble to try to contain the diplomatic and military fallout.  The leaks embarrassed the Pentagon, which tightened controls to safeguard classified information and disciplined members found to have intentionally failed to take required action about Teixeira’s suspicious behavior....

Earlier in court, Assistant U.S. Attorney Jared Dolan told [Judge] Talwani that 200 months — or a little more than 16 1/2 years - was appropriate given the “historic” damage caused by Teixeira’s conduct that aided adversaries of the United States and hurt the country’s allies.  He also said that recommendation by prosecutors would send a message to anyone in the military who might consider similar conduct....

But Teixeira’s attorney Michael Bachrach told the judge Tuesday that 11 years was sufficient. “It is a significant, harsh and difficult sentence, one that will not be easy to serve,” Bachrach said. “It will serve as an extreme deterrent to anyone, particularly young servicemen. That is enough to keep them deterred from committing serious conduct.”

When Teixeira pleaded guilty, prosecutors said they would seek a prison term at the high end of the sentencing range. But the defense wrote in their sentencing memorandum earlier that the 11 years “would be essentially equal to half the life that Jack has lived thus far.”

His attorneys had described Teixeira as an autistic, isolated individual who spent most of his time online, especially with his Discord community.  They said his actions, though criminal, were never meant to “harm the United States.” He also had no prior criminal record.  “Instead, his intent was to educate his friends about world events to make certain they were not misled by misinformation,” the attorneys wrote.  “To Jack, the Ukraine war was his generation’s World War II or Iraq, and he needed someone to share the experience with.”

Prosecutors in court filings countered that Teixeira did not suffer from any intellectual disability that would prevent him from knowing right from wrong, adding his post-arrest diagnosis of “mild, high-functioning” autism was of “questionable relevance” to the proceedings.

Why, one might wonder, did the prosecution "only" argue for a 16+-year sentence while the defense was "only" advocating for 11 years?  Becuase the parties defined those numbers as the acceptable sentencing range in this case via the plea agreement.  Perhaps the district judge here might have thought to impose a 15-year sentence without the plea agreement providing this binding anchor on the outcome, but we can never really know.

How about some clemency grants, Prez Biden, to really honor vets in need on Veterans Day?

On Veterans Day, I often find myself thinking about veterans who, after serving our country in the military and thereby supporting our nation's commitment to liberty and freedom, return home to discover the hard way that these constitutional values are not always paramount in our modern criminal justice systems.  The Council on Criminal Justice (CCJ) has created a Veterans Justice Commission which has done a lot of extraordinary work in this space, and I have linked below some prior posts on CCJ's important efforts to spotlight the wide array of issues at the intersection of military service and criminal justice systems.  For example, this recent CCJ report highlights what (little) we know about justice-involved veterans: 

Approximately one third of veterans indicate that they have been arrested at least once in their lifetime, but that statistic relies on self-reported data.  In addition, the most recent estimate of incarcerated veterans comes from 2011; it identified 181,500 veterans in state and federal prisons and local jails.  These two findings underscore an unfortunate truth: reliable data on justice-involved veterans and the circumstances surrounding their criminal offending is sorely lacking.

Usefully, the most recent CCJ report focused on veterans gives attention to some of my favorite topics, second-look sentencing and clemency, to advocate on behalf of the veteran incarcerated population:

Within this push for second looks, little has been done to consider opportunities for incarcerated veterans to request resentencing based on facts related to their military service.  California is an exception.  In 2022, the legislature passed a penal code amendment that allows veterans suffering from one or more specified service-related conditions to seek resentencing....

Beyond resentencing, the consideration of military service might also be extended to the parole, pardon, and clemency processes, where it is often overlooked.  By not fully and formally considering military service as part of release decisions, crucial context may be missed, potentially denying veterans opportunities for parole, pardon, or clemency.

As the title of this post highlights, I would like to see President Biden operationize this recommendation today by using his historic clemency powers to salute at least a few veterans in federal prison with commutations and at least a few veterans who are out of federal prison with pardons.  There is much chatter these days about to whom Prez Biden might grant clemency on his way out and to whom Prez-Elect Trump might grant clemency on his way in, and yet it seems only "high-profile" crimes and criminals are getting much attention.  That reality is not suprising, but it is still quite disappointing on a Veterans Day when we all should know that there are plenty of low-profile veterans who surely merit clemency consideration.

Prior related posts:

• New CCJ commission to examine factors driving veterans' involvement in criminal justice system 
• Noting the notable challenge of defining "veteran" for various purposes connected to criminal justice systems 
• CCJ's Veterans Justice Commission releases "Honoring Service, Advancing Safety: Supporting Veterans From Arrest Through Sentencing" 
• Council on Criminal Justice releases new policy roadmap encouraging alternatives to prosecution and incarceration for justice-involved veterans 
• CCJ's Veterans Justice Commission releases new report with recommendations on aiding veteran reentry 

Lots of Rahimi GVRs and a curious GVR in long-simering Eighth Amendment capital eligibility case in new SCOTUS order list

The Supreme Court is back in action this week, and this morning it released this notable new order list.  The start and end of the list will be of greatest interest for criminal justice fans.  At the start, we get seven GVRs of criminal cases from four different circuits needing "further consideration in light of United States v. Rahimi, 602 U. S. ___ (2024)."   I am not sure of the specifics of all these cases, but I am sure the Rahimi Second Amendment churn and uncertainty is not concluding anytime soon.

What is concluding, though, is uncertainty about what the Justices are doing with Hamm v Smith, a case the Court had relisted more than 25 times, I believe. (This recent post noted some recent speculation about the case.)  At the end of today' order list we find a two-page per curiam order sending the case back to the Elevent Circuit.  Here is how it starts and ends: 

Joseph Clifton Smith was sentenced to death for the murder of Durk Van Dam. The U.S. District Court for the Southern District of Alabama vacated Smith’s death sentence after concluding that he is intellectually disabled. See Atkins v. Virginia, 536 U. S. 304 (2002). Smith has obtained five full-scale IQ scores, ranging from 72 to 78. Smith’s claim of intellectual disability depended in part on whether his IQ is 70 or below.  The District Court found that Smith’s IQ could be as low as 69 given the standard error of measurement for his lowest score of 72.  The District Court then vacated the death sentence, and the U.S. Court of Appeals for the Eleventh Circuit affirmed.....

The Eleventh Circuit’s opinion is unclear on [its approach to multiple IQ scores], and this Court’s ultimate assessment of any petition for certiorari by the State may depend on the basis for the Eleventh Circuit’s decision.  Therefore, we grant the petition for certiorari and Smith’s motion for leave to proceed in forma pauperis, vacate the judgment of the Eleventh Circuit, and remand the case for further consideration consistent with this opinion.

JUSTICE THOMAS and JUSTICE GORSUCH would grant the petition for a writ of certiorari and set the case for argument.

This GVR conclusion to this long-simmering case may only enhance speculation about what various Justices might have considered the right approach to the broader issues of the Eighth Amentment jurisprudence this case could raise. It will be quite intriguing to see what the Eleventh Circuit might do upon remand and what might come before SCOTUS thereafter.  

For those interested in a bit more background, here is a new CNN article on the Hamm v. Smith disposition: "Supreme Court orders more review of Alabama’s request to execute inmate courts said is intellectually disabled."

CCJ's Veterans Justice Commission releases new report with recommendations on aiding veteran reentry

The Council on Criminal Justice today released this big new report from its Veterans Justice Commission titled "From Confinement to Community: Supporting Successful Veteran Reentry and Employment." This CCJ press releae about the report provide some context and overview:

The American business sector and agencies at all levels of government should adjust their employment policies to prioritize the hiring of justice-involved veterans, the Council on Criminal Justice (CCJ) Veterans Justice Commission said in releasing its third set of recommendations today. Promoting “second chance veteran” hiring would enhance public safety, honor veterans’ sacrifices, and support their efforts to thrive in the country they have served.

The 15-member commission, which is chaired by former U.S. Defense Secretary and U.S. Sen. Chuck Hagel and includes former Defense Secretary and White House Chief of Staff Leon Panetta, also said Congress should require the Department of Veterans Affairs (VA) to provide medical and mental healthcare for incarcerated veterans, restoring a long-held benefit eliminated 25 years ago.

Noting that finding a job is a daunting challenge for veterans and others leaving jail or prison, the commission called on the business community to collaborate with correctional facilities, technology platforms, and community supervision agencies to prioritize veterans in existing efforts to hire people who have been involved in the criminal justice system. To accelerate this change, the commission created a model hiring policy outlining best practices for recruiting and employing justice-involved veterans. The Second Chance Business Coalition, a network of companies committed to hiring people with criminal records, advised the commission on the policy and pledged to promote it....

Roughly 200,000 active-duty service members leave the armed forces each year, and while most transition successfully, many struggle with mental health and substance use disorders, the effects of PTSD, homelessness, and criminality. One in three veterans report having been arrested and booked into jail at least once....

The commission’s report, From Confinement to Community: Supporting Successful Veteran Reentry and Employment, included three additional recommendations to strengthen support for veterans with misdemeanor or felony convictions:

• Federal agencies should remove administrative barriers that restrict housing opportunities for formerly incarcerated veterans and significantly complicate their reentry. In addition, Congress should pass legislation to prevent the VA’s erroneous payment of benefits during some veterans’ confinement, a practice that can saddle them with substantial debt as they return home.
• While veteran-specific housing units in prisons and jails have become increasingly popular, they have not undergone rigorous study. The commission called on Congress to fund and direct the Department of Justice, through the National Center for Veterans Justice proposed by the commission, to coordinate research on veterans housing units and develop best practices for their use. 
• The commission urged the federal government and states to enact “second look” legislation enabling veterans to receive mitigation considerations for military service in resentencing, parole, and clemency processes. Second look policies have been adopted in 12 states and the District of Columbia, but, except in California, incarcerated veterans have few opportunities to request resentencing based on facts related to their service.

Prior related posts:

• New CCJ commission to examine factors driving veterans' involvement in criminal justice system 
• Noting the notable challenge of defining "veteran" for various purposes connected to criminal justice systems 
• CCJ's Veterans Justice Commission releases "Honoring Service, Advancing Safety: Supporting Veterans From Arrest Through Sentencing" 
• Council on Criminal Justice releases new policy roadmap encouraging alternatives to prosecution and incarceration for justice-involved veterans 

"Assisted Outpatient Treatment: A State-by-State Comparative Review"

The title of this post is the title of this new paper now available via SSRN authored by E. Lea Johnston and Autumn Klein. Here is its abstract:

Assisted outpatient treatment, otherwise known as preventive outpatient commitment, is rapidly expanding across the United States, aiming to address mental health needs and reduce homelessness, hospital costs, and community violence.  Since 2019, fifteen preventive outpatient commitment statutes have been passed or expanded.  These statutes, which authorize courts to mandate community treatment for nondangerous individuals with mental illnesses, have evaded close scrutiny, rest on misconceptions, and raise significant constitutional concerns.  An analysis of legislative debates, court opinions, and scholarship reveals a fundamental misunderstanding about the prevalence of these laws, which contributes to their speedy passage.  Additionally, no analysis exists of these statutes' varying compositions.  Consequently, commentators underestimate their potential scope and enforceability.  Furthermore, a lack of clarity regarding the elements responsive to states' parens patriae and police power interests hinders accurate legal and policy analyses.

This Article explicates current preventive outpatient commitment statutes to enhance understanding of states' authority to compel community treatment.  It seeks to dispel common misconceptions about these statutes, including their prevalence, minimal invasiveness, applicability to only those lacking insight into their condition, and unenforceability through courts' contempt power.  It also offers a detailed analysis of the aspects of these statutes most crucial to their justifiability, i.e., criteria related to dangerousness and treatment decision-making incapacity.  Such examination is necessary to understand the evolving relationship between states and individuals with mental disorders, discern the goals of compelled treatment statutes, and assess their legality.  It is also essential for evaluating the success of these statutes and determining when a state's objectives have been fulfilled such that courts may not renew commitment orders.

This analysis aims to enrich future debates about the authority underpinning these statutes, their ideal composition, and their impact.  It also lays the foundation for future projects to examine the constitutionality of these statutes, their efficacy, and their broader justifications.

Speculating about many SCOTUS relists in Eighth Amendment capital case concerning intellectual disability

Ian Millhiser has this interesting new Vox piece discussing the oft-relisted Supreme Court case of Hamm v. Smith under the headline "The strange case that the Supreme Court keeps refusing to decide: A mysterious Supreme Court case could change everything about criminal punishment." I recommend the lengthy piece in full, and here is how it gets started (with links from the original):

For more than a year, Joseph Clifton Smith, a man who says he is intellectually disabled, has sat on death row, waiting to find out if the Supreme Court will greenlight his execution.  Smith’s case, known as Hamm v. Smith, first arrived on the Court’s doorstep in August 2023.  Since then, the justices have met more than two dozen times to decide what to do about the case, and each time they’ve put the decision off until a future meeting.

No one outside of the Court can know for sure why the justices keep delaying, but if you follow the Court’s Eighth Amendment cases closely, it’s easy to see how the Hamm case could open up all kinds of internal rifts among the justices.

The Eighth Amendment, which has a vague ban on “cruel and unusual punishments,” is at the center of the Hamm case because, for decades, the Court has held this amendment forbids executions of intellectually disabled offenders (and offenders who commit a crime while they are juveniles). The idea is that both groups have diminished mental capacity, at least as compared to non-disabled adults, and thus bear less moral responsibility even for homicide crimes.

That idea, however, has long been contested by the Court’s various ideological factions, and the Hamm case potentially reopens up all of the Court’s issues with the amendment at once. Indeed, in the worst-case scenario for criminal defendants, the justices could potentially overrule more than 60 years of precedents protecting against excessive punishments.

This Vox piece goes on to highlight how the Hamm case potentially highlights how modern Eighth Amendment precendents does not jibe with more originalist views of the Cruel and Unusual Punishments clause.  Here is part of Millhiser's explanation:

[I]t’s possible that the Court is fighting over what to do with the Hamm case because many of the justices want a wholesale revolution in Eighth Amendment law.

Beginning in the mid-20th century, the Supreme Court maintained that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”  Thus, as a particular method of punishment grew less common, the Court was increasingly likely to declare it cruel and unusual in violation of the Constitution.

At least some members of the Court’s Republican majority, however, have suggested that this “evolving standards of decency” framework should be abandoned.  In Bucklew v. Precythe (2019), the Court considered whether states could use execution methods that risked causing the dying inmate a great deal of pain. Justice Neil Gorsuch’s majority opinion, which held that potentially painful methods of execution are allowed, seems to exist in a completely different universe than the Court’s Eighth Amendment cases that look to evolving standards.

While the Court’s earlier opinions ask whether a particular form of punishment has fallen out of favor today, Gorsuch asked whether a method of punishment was out of favor at the time of the founding....  What makes Bucklew confusing, however, is that it didn’t explicitly overrule any of the previous decisions applying the evolving standards framework.  So it’s unclear whether all five of the justices who joined that opinion share a desire to blow up more than a half-century of law....  Bucklew looms like a vulture over any cruel and unusual punishment case heard by the Court, as it suggests that the Republican justices may hit the reset button on all of its Eighth Amendment precedents at any time.

Thanks to some helpful readers, I have been keeping an eye on Hamm v. Smith, and Millhiser seems right that something notable is afoot behind closed SCOTUS doors.  My uninformed guess is that a few Justices, most likely Justice Alito, Gorsuch and/or Thomas, may be actively seeking to encourage their colleagues to take up the case as an opportunity to review and recast Eighth Amendment, but they are having a hard time getting a fourth vote for cert. And that challenge may reflect not only the concern other Justices may have about overturning modern Eighth Amendment precedents, but also the fact that a rigorous approach to Eighth Amendment originalism could possibly expand some rights against excessive punishments (according to some academics)

"Plea Bargaining in Homicide Cases: An Empirical Exploration in One State"

The title of this post is the title of this new article by Michael O'Hear and Darren Wheelock now available via SSRN. Here is its abstract:

Even the most serious criminal cases are often resolved through plea bargaining, with potentially dramatic consequences for the sentence ultimately imposed.  In Wisconsin, the most serious type of homicide is a Class A felony, which results in a mandatory life sentence.  However, many individuals who are initially charged with the Class A offense are given the opportunity to plead guilty to a lesser Class B offense, which does not trigger any mandatory minimum sentence at all.

In this Article, we compare the characteristics of the cases in which the defendant pleads guilty to a Class A offense (a relatively harsh outcome) with the characteristics of the cases in which the defendant pleads guilty to a Class B offense (a relatively lenient outcome).  We find statistically significant differences between these two sets of cases in such areas as county of prosecution, appointed versus private-pay defense lawyer, and gender of defendant, victim, prosecutor, and defense lawyer.

Pennsylvania Supreme Court hears constitutonal challenges to mandatory LWOP for felony murder ... not long after Colorado Supreme Court rejects similar claims

As reported in this local article, the Pennsylvania Supreme Court yesterday heard oral arguments in a case challenging the state's mandatory life without parole sentencing scheme for all defendants convicted of second degree felony murder.  Here is a snippet from the report:

The Supreme Court agreed in February to consider the appeal of former Allegheny County resident Derek Lee, who was sentenced to life in prison without parole for a 2014 murder committed by his accomplice in a robbery.  Grote said Lee’s punishment is disproportionately harsh given the lack of intent to kill inherent in the crime and argued that it does little to deter others. He urged the court to find that the punishment violates both the Pennsylvania and U.S. Constitutions....

Lee, 36, was convicted of second-degree murder, robbery, and conspiracy in the Oct. 14, 2014, shooting death of Leonard Butler in Pittsburgh. Lee and another man entered the home Butler shared with his longtime girlfriend and forced them at gunpoint into the basement.  After Butler gave Lee his watch, Lee left the basement and the other man remained. Butler’s long-term partner Tina Chapple testified that Butler lunged at the man and she heard a gunshot. Butler was struck and died from his injuries, according to court filings.

Allegheny County Assistant District Attorney Kevin McCarthy noted that the felony murder rule has been Pennsylvania law since 1794 and that the penalty has been revised from death to include the option of a life sentence and most recently to require life without parole in 1974....  “Each and every member who participates is responsible to the same degree and can be punished to the same degree,” McCarthy said.

During the arguments, the Supreme Court justices grappled with the potential impact of a ruling that life without parole is unconstitutional and whether it should be retroactive.  More than 1,100 people are serving such sentences in Pennsylvania and finding them unconstitutional could require the state’s courts to revisit each person’s case.

Interestingly, similar constitutional claims about LWOP sentencing for felony murder were considered and recently rejected by a unanimous Colorado Supreme Court in Sellers v. Colorado, 2024 CO 64 (Colo. Sept. 30, 2024) (available here).  Here is how that opnion begins:

Petitioner Wayne Tc Sellers IV asks us to consider whether a life without the possibility of parole (“LWOP”) sentence for felony murder is categorically unconstitutional or, alternatively, grossly disproportionate to the offense of felony murder following the General Assembly’s 2021 reclassification of that offense.

Based on objective indicia of societal standards and evolving standards of decency as expressed in legislative action and state practice, as well as the exercise of our independent judgment, we now conclude that an LWOP sentence for felony murder for an adult offender is not categorically unconstitutional.

We further conclude that, even assuming without deciding that felony murder is not per se grave or serious, Sellers’s offense here was, in fact, grave and serious. Thus, his LWOP sentence, although severe, does not run afoul of the Eighth Amendment or article II, section 20 of the Colorado Constitution and therefore was not grossly disproportionate.

Certain offense facts might distinguish the case in Pennsylvania from the one in Colorado, and the Pennsylvania Supreme Court has broad authority to interpret its state constitution differently than how other state courts interpret their state constitutions. But the unanimous ruling by the Justices of the Colorado SUpreme Court, who were all appointed by Democratic governors, highlights the enduring challenge adult defendants face when seeking to challenge prison terms on certain constitutional terms.  

"The Coming Assault on Class-Based Gun Prohibitions"

The title of this post is the title of this new essay available via SSRN and authored by Ian Ayres and Fredrick Vars.  Here is its abstract:

Lower federal courts are struggling to determine the constitutionality of longstanding federal laws prohibiting felons and those involuntarily committed from purchasing or possessing firearms.  While Justice Scalia in Heller described such laws as "presumptively lawful," Justice Thomas' more recent Bruen decision holds that essentially all gun regulations are presumptively unconstitutional unless the government can provide sufficiently analogous precedents of gun regulations from the Founding-Era.  Some courts applying the Bruen test have had difficulty finding "how" analogs -- particularly with regard to the permanent nature of federal prohibitions and their imposition without individualized determination of dangerousness.  This essay proposes a number of ex ante and ex post reforms that would simultaneously help to insulate class-based prohibitions from constitutional attack, better target gun restrictions to individuals who pose credible threats to public safety or themselves, enhance individual liberty, and provide greater due process protections.  In particular, we propose that state and federal trial court judges ex ante include express individualized determinations of dangerousness in criminal sentencing and involuntary commitment orders.  We also propose that Congress refund the existing § 925(c) petition mechanism so that any individual subject to a firearm restriction can ex post receive an individualized determination of whether the restriction is still warranted.

Yet another wild (and wildlife) animal crime leads to notable federal sentencing

In recent weeks, I have noticed and blogged about a number of notable recent sentencing stories involving aninals (see links to prior posts below).  This local story out of Montana, headlined "Vaughn man who cloned, bred and sold illegal sheep sentenced," prompts me to continue the genre.  Here are the basics along with links from the story to original court documents:

The Vaughn man who earlier this year pleaded guilty to violating the Lacey Act by cloning and trafficking a large species of an Asian sheep and selling hybrid offspring DNA was sentenced Monday to six months in prison.  The prison sentence for Arthur “Jack” Schubarth, 81, was about one-quarter of what he could have been sentenced to under federal sentencing guidelines, according to a sentencing memo from the U.S. Attorney’s Office.

The memo said Schubarth at his age was unlikely to attempt the same crimes again and that he had been helpful in cooperating with the government after his arrest, providing officials with genetic testing showing which of his animals could be dangerous to wild animals, helping them care for the animals, and declining compensation for the animals that had to be killed and given to Montanans for meat.  But in the sentencing memo, the U.S. Attorney’s Office also said a sentence that included prison could deter others from committing the same crimes....

Along with the sixth-month prison sentence, Judge Brian Morris ordered Schubarth to pay a $20,000 fine to the Lacey Act Reward Fund, $4,000 to the National Fish and Wildlife Foundation, and a $200 special assessment. He will also have three years of []supervised release following his prison sentence....

According to federal prosecutors, from 2013 through 2021, Schubarth worked with at least five others to try to create a large hybrid sheep that could be hunted at captive hunting operations, typically fenced-in land. He brought parts of the world’s largest sheep, the Marco Polo argali sheep, from Kyrgyzstan illegally.  He sent genetic material from the animal’s parts to a lab to clone the animal, then implanted embryos in other sheep at his Schubarth Ranch in Vaughn, leading to the birth of a cloned Marco Polo argali he named “Montana Mountain King.”

He used that animal’s semen to artificially inseminate several other species of sheep that are illegal in Montana to create hybrids, hoping to sell large sheep to captive hunting facilities across the U.S., but primarily in Texas, according to court documents.  The group forged inspection certificates, Schubarth sold his pure clone’s semen directly to other breeders, and at least two of the sheep he was involved in creating died from a contagious chronic wasting disease. According to the government, he also illegally purchased the testicles of large Rocky Mountain bighorn sheep killed in Montana from outfitters and sold them to others....

As part of the plea agreement, Schubarth wrote to the judge in February explaining his long background with exotic animals and Montana Fish, Wildlife and Parks. He also asked for house arrest because of health problems and a lack of a criminal record and apologized for his actions.  “My biggest fault is I become extremely passionate in any project I take on. This is what happened with my sheep project. I got my normal mind set clouded by my enthusiasm and looked for any grey area in the law to make the best sheep I could for this sheep industry,” he wrote. “I’m very sorry for my actions and deeply ashamed and I’m sorry I have caused my family pain and a loss of money. My family has never been broke, but we are now.”

Prior recent related posts:

• A reminder that kicking a cat down the road can get you sentenced to years in a federal prison 
• Negligent owners get decades in prison for deadly failings to control dogs
• Another notable long sentence for cruel animal mistreatment 

Pennsylvania Supreme Court finds legal error when sentencing court "relied upon prior arrests as a sentencing factor"

A helpful colleague made sure I did not miss an interesting new opinion from the Pennsylvania Supreme Court in Commonwealth v. Berry, No. 16 EAP 2023, J-9A-2024 (Pa. Sept. 26, 2024) (available here).  Here is how the unanimous 24-page ruling gets started:

James Berry was convicted of several crimes arising from his sexual abuse of two young family members. For purposes of tabulating the applicable recommended sentencing range under the under the Pennsylvania Sentencing Guidelines, Berry had no prior convictions or juvenile adjudications, which resulted in a “prior record score” of zero.  The sentencing court ultimately imposed a sentence that deviated significantly upward from the standard sentencing range recommended by the sentencing guidelines.  Explaining its reasons on the record, the court stated that Berry’s arrest record (which the court characterized as “previous other contacts” with the criminal legal system) essentially negated Berry’s absence of a prior criminal record.

Challenging the discretionary aspects of this sentence, Berry appealed to the Superior Court, which affirmed.  Upon allowance of appeal, we must decide whether a sentencing court lawfully may consider Berry’s record of prior arrests, which did not result either in juvenile adjudications or adult convictions, as a factor at sentencing.  Because arrests without conviction “happen[ ] to the innocent as well as the guilty,” they offer nothing probative about a defendant’s background at sentencing.  Thus, the sentencing court misapplied the law by predicating the sentence in part upon Berry’s arrest record. Accordingly, we reverse the order of the Superior Court and we remand for resentencing.

There is considerable nuance in this opinion, as the court avoided reaching the defendant's constitutional claim based in due process by ruling in his favor as a matter of state stautory law. In addition, the court also avoided addressing prosecutors' arguement that it would be proper for a sentencing judge to consider conduct underlying an arrest because the "sentencing court provided no indication on the record that, as to Berry’s arrest record, it considered anything other than the fact of prior arrests."

Caroline Ellison sentenced to two years in prison for her role in FTX collapse

As reported in this CNBC article, "Caroline Ellison, the star witness in the prosecution of her former boyfriend, FTX founder Sam Bankman-Fried, was sentenced Tuesday in New York federal court to two years in prison and ordered to forfeit $11 billion for her role in the massive fraud and conspiracy that doomed the cryptocurrency exchange once valued at $32 billion."  Here is more about her sentencing:

The prison term was significantly stiffer than the recommendation by the federal Probation Department that Judge Lewis Kaplan sentence Ellison to three years of supervised release, with no time at all behind bars.

Defense lawyers also had requested a no-prison sentence for Ellison, who had run the hedge fund Alameda Research, which had received much of the $8 billion in customer funds looted by Bankman-Fried from FTX.  The stolen money was used for Alameda’s trading operation and other purposes.

While Kaplan praised Ellison for her extensive cooperation with prosecutors — which led to the conviction of Bankman-Fried — the judge said her criminal sentence needed to deter other potential bad actors from committing fraud.

The judge said that the FTX case is probably the greatest financial fraud perpetrated in the history of the United States, and because of that a “literal get-out-of-jail-free card I can’t agree to,” Kaplan said in U.S. District Court in Manhattan, where Ellison’s parents and two sisters looked on from the courtroom’s gallery.

“I’ve seen a lot of cooperators over the years and I’ve never seen one quite like Miss Ellison,” said Kaplan, who also said he believed that Ellison was genuinely remorseful for her crimes and that her cooperation carried a steep price for her emotionally....

Ellison read from a statement in a shaky voice while crying at times as she apologized to the people she had hurt and said she was deeply ashamed. She also said she was sorry for being brave enough to walk away from FTX and Bankman-Fried....

Ellison reached a plea deal with prosecutors in December 2022, a month after FTX spiraled into bankruptcy. She pleaded guilty to conspiracy and financial fraud charges. Bankman-Fried, in contrast, chose to stand trial and was convicted of all seven criminal fraud charges against him in the same courthouse where she was sentenced.

He was sentenced to 25 years in prison in March and also was ordered to pay $11 billion in forfeiture by Kaplan. Bankman-Fried since then has appealed his conviction, and requested a new trial and a different judge, arguing that Kaplan was biased against him.

Two other former FTX executives, Gary Wang and Nishad Singh, are scheduled to be sentenced later this year. Like Ellison, they pleaded guilty instead of standing trial....

On Tuesday, before sentencing Ellison, Kaplan contrasted her conduct after she was charged with that of Bankman-Fried.  While the FTX founder had denied criminal conduct, she cooperated with authorities, Kaplan noted.  “It didn’t work out so well” for Bankman-Fried, in part because of Ellison’s cooperation, the judge said.

Both Bankman-Fried and Ellison had faced the same statutory maximum sentence of about 110 years in prison for their crimes. But defendants in criminal cases who cooperate with prosecutors instead of fighting the charges particularly in white-collar cases such as FTX, often receive leniency when they are sentenced.

A few prior related posts:

• Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"
• Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried
• Sam Bankman-Fried sentenced to 25 years in federal prison for his FTX frauds
• For executive connected to FTX collapse (and Sam Bankman-Fried's girlfriend), federal guidelines call for LWOP, but probation office recommends time served
• Feds praise Caroline Ellison's cooperation while refusing to suggest any specific sentence when federal guidelines recommend LWOP

Fifth Circuit panel rejects Second Amendment challenge to federal felon in possession for defendant with prior car theft offense

The Fifth Circuit earlier this week added still more nuances to Second Amendment, felon-in-possession jurisprudence through a panel opinion in US v. Diaz, No. 23-50452 (5th Cir. Sept. 18, 2024) (available here). As noted in posts linked below, since the Supreme Court's Rahimi opinion, the Eighth Circuit has categorically rejected Second Amendment challenges to § 922(g)(1), which criminalizes all possession of all firearms by all those with a felony conviction, whereas the Sixth Circuit has upheld this law "as applied to dangerous people."   The Fifth Circuit has now upheld the law in a slightly different way, in this case as applied to a person convicted as a car thief based on the fact that there were Founding era laws "authorizing severe punishments for thievery and permanent disarmament in other cases." 

The full Diaz ruling is interesting, especially for its variation in method in applying Bruen and Rahimi to reject challenges to § 922(g)(1).  Practically speaking, in the run of criminal cases typically brought as felon-in-possession prosecutions, the different jurisprudential approaches adopted the different circuits may not matter all that much.  But this is still a big deal not only for anyone trying to figure out Second Amendment law to advise individuals with a criminal past who wish to own guns, but also for any number of others seeking clarity on the allowable rules and constitutional limits for firearm regulation.  And the fact that three circuits have taken three different approaches to this (frequently litigated) issue is yet another signal that this matter will likely have to be taken up by SCOTUS sooner rather than later.  

A few of many prior related posts:

• After Rahimi, can Donald Trump legally possess a gun? How about Hunter Biden? 
• Noting just some of the continuing litigation and uncertainty about gun rights after Rahimi 
• Ninth Circuit grants en banc rehearing of panel ruling that federal felon-in-possession criminal law is unconstitutional 
• After Rahimi remand, Eighth Circuit panel again rejects Second Amendment challenge to federal felon in possession charge
• Sixth Circuit panel rules federal prohibition of felon gun possession is "constitutional on its face and as applied to dangerous people"
• New report details that persons with felony records have brought most gun litigation after Bruen changed Second Amendment law 

US Sentencing Commission releases new report on "Cyber Technology in Federal Crime"

The US Sentencing Commission today released this notable new research report titled "Cyber Technology in Federal Crime."  This latest report is introduced on this USSC webpage, which also sets forth "Key Findings" along with some interesting graphics.  Here is the main text from this USSC page:

There has been little analysis on the individuals sentenced for a federal offense who used cyber technology for illegal purposes. In developing this report, the Commission collected information on individuals sentenced for offenses using cryptocurrency, the dark web, and hacking for fiscal years 2014 through 2021.  This report provides demographic and sentencing information for those individuals who used at least one of three types of cyber technology during their offenses — hacking, cryptocurrency, and the dark web — along with the types of offenses committed using these technologies.  The Commission analyzed this data to draw comparisons with all other federally sentenced individuals between fiscal years 2014 and 2021 who did not use these technologies....

Key Findings

Between 2014 and 2021, 2,590 sentenced individuals used at least one of three types of cyber technology — hacking, cryptocurrency, and the dark web — in connection with a federal offense, and the number increased substantially during the time studied from 2014 to 2021.  However, this number represented less than one percent of the total federal caseload....

Individuals who used cyber technology in their offense were more likely to be White, male, younger, and have completed at least some college than other sentenced individuals.

• Over two-thirds (68.6%) of individuals who used cyber technology in their offense were White, compared to 21.5 percent of other sentenced individuals.
• While 94.0 percent of those who used cyber technology were male, 86.8 percent of other sentenced individuals were male.
• Almost a quarter (22.4%) of individuals who used cyber technology had a college degree, compared to 5.8 percent of other sentenced individuals.

Individuals who used hacking, cryptocurrency, or the dark web in their offense had less criminal history than individuals who did not use cyber technology in the commission of a federal crime.  Less than half of other sentenced individuals were in Criminal History Category (CHC) I, the lowest category.

The most common offenses committed by individuals who used cyber technology in their offense were child pornography (28.9%), fraud (27.5%), drug trafficking (20.6%), and money laundering (8.9%).

US Sentencing Commission releases some more updated "Quick Facts" publications

Regular readers are now used to my praise for the US Sentencing Commission for continuing to release new sets of its terrific "Quick Facts" publications.  But ir remains the case that I cannot praise the USSC enough for producing these convenient and informative short data documents, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format."  IHere are the newest sets of postings by the USSC on the "Quick Facts" page from last week:

Offender Groups

• NEW Federally Sentenced Women (September 2024)

Sex Offenses

• NEW Child Pornography (September 2024)

Other Offenses

• NEW Robbery (September 2024)
• NEW National Defense (September 2024)

New report details that persons with felony records have brought most gun litigation after Bruen changed Second Amendment law

In my very first post after reporting on the Supreme Court's 2022 landmark Second Amendment case, Bruen, I wondered on this blog "Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen?".  Two years later with lots and lots of lower court litigation and the follow-up SCOTUS case of Rahimi, it seems quite clear now the answer is "yes," felon-in-possession criminal gun prohibitions are "constitutional suspect," but the answer as to exactly whether and when they may be unconstitutional remains quite unclear.  The latest data point for these discussion comes from this new article from The Trace, fully headlined "More Than a Thousand Felons Have Challenged Their Gun Bans Since the Supreme Court’s Bruen Decision: The Trace reviewed more than 2,000 court cases that cited Bruen and found that no group has used the decision more often than people whose felony records bar them from possessing guns."  And here are some excerpts:

Bruen set off a wave of legal challenges to gun restrictions across the country, but no other group has taken to the courts as frequently as people with felony convictions, who are prohibited from possessing guns under a federal statute known as the felon gun ban.

The Trace reviewed more than 2,000 federal court decisions that cited Bruen over the past two years. More than 1,600 of them answered challenges to a wide variety of federal, state, and local gun laws — from assault weapons restrictions to bans on guns at the U.S. Post Office. The majority — some 1,100 — of the decisions included a challenge to the felon gun ban, making it the single most frequently contested statute by far.

At least 30 of the challenges to the felon gun ban have succeeded. While that ratio may seem small, it marks a stark departure from the past, when effectively none succeeded, and it shows that Bruen has cracked the longstanding consensus that people convicted of serious crimes may constitutionally be barred from gun ownership. 

Those decisions, albeit rare and frequently narrow, chart new legal pathways for other defendants and judges to follow, meaning that more people convicted of felonies could have their cases thrown out.  Over the past two years, judges have issued on average two Bruen-related rulings each working day, the majority of which have been on challenges to the felon gun ban. And the pace is increasing....

The sheer volume of Bruen challenges to the felon gun ban has the potential to gum up the legal system. Margaret Groban, a former federal prosecutor who focused on gun crimes and domestic violence cases, described the fallout as “a mess.”   “It does take up a lot of resources,” she said. “There are cases to prosecute, and then you spend all your time defending the cases that have already been prosecuted.”...

A felon in possession of a firearm is one of the most commonly charged federal crimes, according to the U.S. Sentencing Commission. In 2022 and 2023, more than 7,000 people with felony records were convicted of this crime — in the federal court system alone.  The majority of these defendants were Black....

“I represent a lot of kids who have never in their lives even fired a gun,” said Christopher Smith, a public defender in the Bronx. “But it’s a dangerous neighborhood.” His clients, he added, would rather be tried for carrying an illegal gun than killed for not having one to defend themselves. Bruen has shifted the legal strategy in gun possession cases, particularly for clients who had prior felony convictions, Smith said. “The biggest change is now we just write a different motion in gun cases, where we challenge on Second Amendment grounds.”

"Recidivist Organizational Offenders and the Organizational Sentencing Guidelines"

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

Despite recent Congressional hearings and public attention, the question of how to fairly and efficiently punish recidivist organizational offenders remains unresolved.  Any discussion regarding the most optimal legal response to recidivist organizational crime is incomplete without a solution accounting for the use of organizational deferred prosecution agreements ("DPAs") and non-prosecution agreements ("NPAs").  These tools allow criminal defendants to resolve charges without sustaining convictions that attach to the defendants' criminal records, and they are used often in the organizational context.

This Article is the first to recognize that the federal sentencing scheme fails to promote deterrence and fairness in the context of organizational sentencing and is the first to offer a practical solution to this problem.  The federal sentencing scheme currently does not require an increase in an organizational defendant's sentence when the defendant previously executed DPAs or NPAs before its subsequent criminal conduct.  Yet the federal sentencing guidelines do require an increase in an individual defendant's sentence if the individual previously executed a DPA. Meanwhile, the existence of prior DPAs and NPAs is a hallmark of organizational recidivism that demonstrates an organization is more culpable than other organizational defendants.  Accordingly, this Article recommends that the Sentencing Commission amend the federal sentencing guidelines to require sentencing courts to increase organizations’ sentences based on prior DPAs and NPAs.  This Article offers specific amendments for consideration. Finally, until the sentencing guidelines are amended, sentencing courts can use tools already in place to begin imposing more fair organizational sentences.

"Fatal Peril: Unheard Stories from the IPV-to-Prison Pipeline and Other Voices Touched by Violence"

The title of this post is the title of this notable new huge report from the Stanford Criminal Justice Center.  The email I received about the report explains that it examines "the prevalence and severity of intimate partner violence (IPV) in the backgrounds of women incarcerated for homicide in California."  Here is the start of the report's executive summary:

The women’s rate of incarceration in the United States has grown twice as fast as that of men in recent decades.  Research has established that many incarcerated women have histories of abuse throughout their lives, including intimate partner violence (IPV), and that this abuse may contribute to their criminalization.  Gender-based violence results in an array of negative physical and mental health consequences, with intimate partner homicide (IPH) as the most severe outcome.

For women who are arrested, convicted, and sentenced for actions like homicide arising out of their own victimization, the law generally fails to account for domestic and intimate partner violence even when this abuse is supposed to be considered as a mitigating factor.  Unfortunately, little scholarship has examined the linkage between genderbased violence and women’s experiences as defendants ensnared in a broad and powerful criminal legal system.

The overarching purpose of our project was to understand how people experiencing genderbased violence are criminalized for actions they took to survive abuse. While IPV exists for people of all genders, we focused on women given their disproportionate rates of severe and lethal intimate partner abuse.  We also centered our study on people convicted of the most serious of offenses and serving the longest sentences — murder and manslaughter.

Specific objectives were to:

 (1) Quantify the prevalence of IPV and the potential lethality of the abuse;

(2) Describe the nature of the relationship between the survivor-defendant and the decedent as it relates to the circumstances of the offense; and

(3) Identify the extent to which the criminal legal system accounts for IPV.

The lengthy reports discusses sentencing in various ways, and this passage particularly caught my eye:

Although we did not systematically ask respondents about their co-defendants’ sentences, we were able to glean some information about sentencing disparities from their narrative responses.  In some cases, respondents received higher sentences than their co-defendants for less culpable conduct because their co-defendants testified against them.  As one respondent shared, “My ex-boyfriend was the one who did the actual crime. And both of them are already out of prison. I did not participate in the actual crime.  I should have a chance to get out of prison.”  Similarly, many co-defendants took plea deals to [testify against] respondents—even if the respondent did not cause the killing.

Backpage founders and executives sentenced to 5 and 10 years, well below what federal prosecutors' urged

I flagged here last week some issues surrounding the federal sentencing of the persons who founded and helped run the website Backpage.  This AP article reports on how these issues played out, and here are excerpts:

Michael Lacey, a founder of the lucrative classified site Backpage.com, was sentenced Wednesday to five years in prison and fined $3 million for a single money laundering count in a sprawling case involving allegations of a yearslong scheme to promote and profit from prostitution through classified ads.

A jury convicted Lacey, 76, of a single count of international concealment money laundering last year, but deadlocked on 84 other prostitution facilitation and money laundering charges. U.S. District Judge Diane Humetewa later acquitted Lacey of dozens of charges for insufficient evidence, but he still faces about 30 prostitution facilitation and money laundering charges.

Authorities say the site generated $500 million in prostitution-related revenue from its inception in 2004 until it was shut down by the government in 2018.  Lacey’s lawyers say their client was focused on running an alternative newspaper chain and wasn’t involved in day-to-day operations of Backpage.  But Humetewa told Lacey during Wednesday’s sentencing he was aware of the allegations against Backpage and did nothing....

Two other Backpage executives, Chief Financial Officer John Brunst and Executive Vice President Scott Spear, also were convicted last year and were each sentenced on Wednesday to 10 years in prison....

Prosecutors said the three defendants were motivated by greed, promoted prostitution while masquerading as a legitimate classified business and misled anti-trafficking organizations and law enforcement officials about the true nature of Backpage’s business model.  Yvonne Ambrose, whose 16-year-old daughter Desiree Robinson was trafficked in Chicago on Backpage and killed in 2016 by a man who answered an online sex ad, told the judge on Tuesday about the pain she feels from her daughter’s death....

Authorities say Backpage employees would identify prostitutes through Google searches, then call and offer them a free ad.  The site also is accused of having a business arrangement in which it would place ads on another site that lets customers post reviews of their experiences with prostitutes.

The site’s marketing director has already pleaded guilty to conspiring to facilitate prostitution and acknowledged that he participated in a scheme to give free ads to prostitutes to win over their business.  Additionally, the CEO of the company when the government shut the site down, Carl Ferrer, pleaded guilty to a separate federal conspiracy case in Arizona and to state money laundering charges in California.  Two other Backpage employees were acquitted of charges by a jury at the same 2023 trial where Lacey, Brunst and Spear were convicted of some counts....

A Government Accountability Office report released in June noted that the FBI’s ability to identify victims and sex traffickers had decreased significantly after Backpage was seized by the government because law enforcement was familiar with the site and Backpage was generally responsive to requests for information.

Prosecutors said the moderation efforts by the site were aimed at concealing the true nature of the ads.  Though Lacey and Larkin sold their interest in Backpage in 2015, prosecutors said the two founders retained control over the site.

Sixth Circuit panel rules federal prohibition of felon gun possession is "constitutional on its face and as applied to dangerous people"

A panel of the Sixth Circuit handed down an interesting and intricate opinion in US v. Williams, No. 23-6115 (6th Cir. Aug. 23 , 2024) (available here), which rejects a Second Amendment challenge to a federal illegal gun possession charge by a "dangerous" person with a felony record. The lengthy opinion for the Court concludes with this very helpful summary:

To summarize, we hold today that § 922(g)(1) is constitutional on its face and as applied to dangerous people.  Our nation’s historical tradition confirms Heller’s assumption that felonin-possession laws are “presumptively lawful.”  The history reveals that legislatures may disarm groups of people, like felons, whom the legislature believes to be dangerous — so long as each member of that disarmed group has an opportunity to make an individualized showing that he himself is not actually dangerous.

A person convicted of a crime is “dangerous,” and can thus be disarmed, if he has committed (1) a crime “against the body of another human being,” including (but not limited to) murder, rape, assault, and robbery, or (2) a crime that inherently poses a significant threat of danger, including (but not limited to) drug trafficking and burglary. An individual in either of those categories will have a very difficult time, to say the least, of showing he is not dangerous.

A more difficult category involves crimes that pose no threat of physical danger, like mail fraud, tax fraud, or making false statements. But such a case is not before us today.

In any event, district courts need not find a “categorical” match to a specific common-law crime to show that a person is dangerous. Rather, district courts should make fact-specific dangerousness determinations after taking account of the unique circumstances of the individual, including details of his specific conviction. Finally, when considering an individual’s dangerousness, courts may evaluate a defendant’s entire criminal record — not just the specific felony underlying his section 922(g)(1) prosecution.

Here, Williams availed himself of his constitutionally required opportunity to show that he is not dangerous—albeit after he violated the law, not before. Because his record demonstrates that he is dangerous, we reject his challenge. We thus affirm.

By my read, this opinion means that any and every person within the Sixth Circuit criminal charged with illegal firearm possession under 922(g)(1) — and perhaps other federal and state gun control provisions? — can now seek dismissal of that charge by making "an individualized showing that he himself is not actually dangerous."   In addition, I wonder if this Williams opinion might now provides a means for the millions of persons with non-violent felony convictions in the Sixth Circuit to seek a declaratory judgment that they are "not actually dangerous" and thus have a Second Amendment right to possess (and purchase) firearms like all their fellow citizens.

A few of many rior related posts:

• After Rahimi, can Donald Trump legally possess a gun? How about Hunter Biden? 
• Noting just some of the continuing litigation and uncertainty about gun rights after Rahimi 
• Ninth Circuit grants en banc rehearing of panel ruling that federal felon-in-possession criminal law is unconstitutional 
• After Rahimi remand, Eighth Circuit panel again rejects Second Amendment challenge to federal felon in possesion charge

"Disparities in Sentencing: Creating a "Benchcard" on Brain Development to Incorporate Neuroscience Research"

The title of this post is the title of this new article posted to SSRN authored by Stevie Leahy. Here is its abstract:

This article explores the disparities in juvenile sentencing across the United States, with a focus on the implications of the Supreme Court's decision in Jones v. Mississippi (2021) and the importance of incorporating neuroscience research into legal decisions.  It highlights how different jurisdictions handle juvenile life without parole (JLWOP) sentences, leading to significant inconsistencies based on geography.  The article advocates for the development of a “benchcard” that would guide judges in making informed decisions by integrating the latest scientific understanding of brain development, particularly concerning individuals up to age 25.  By examining the evolution of legal protections for juveniles and the role of the prison industrial complex, the article argues for a more equitable legal approach that considers the developmental differences of young offenders.

"Racially Disparate and Disproportionate Punishment of Felony Murder: Evidence from New York"

The title of this post is the title of this new paper authored by Alexandra Harrington and Guyora Binder now available via SSRN. Here is its abstract:

America’s peculiar institution of felony murder liability has long been criticized as cruel and pointless, particularly as applied to defendants who did not kill.  Yet data collection practices in the criminal legal system make felony murder difficult to study empirically.  This article presents recently uncovered evidence of the racially disparate application of felony murder law, as well as increased disparities for those who have been convicted as accomplices.  This study of felony murder arrest and disposition in New York is one of the first to reach beyond dispositions to examine the behavior punished, and to thereby compare patterns in arrest, prosecution, and conviction of accused principals with accomplices not alleged to have killed. 

This study is also one of the first to report the surprising scale of liability under felony murder law for individuals who did not kill — half of all people convicted of felony murder in the years measured — as well as for people who appear to have caused death inadvertently.  It finds substantial racial disparities in arrests and convictions for felony murder compared to other forms of second-degree murder.  These disparities are starker for teens, who make up at least a quarter of the dataset.  Finally, it uncovers a shocking phenomenon: hundreds of arrests — mostly concentrated in New York City — of almost exclusively Black and Hispanic people for the fictitious crime of attempted felony murder.  In New York, it seems, the worst of felony murder is reserved for defendants of color.

The Sentencing Project releases updated report on “Youth Justice By The Numbers”

The Sentencing Project released today this new version of a report titled, “Youth Justice By The Numbers.”  The first two sentences of this ten-page report spotlights its main themes: "Between 2000-2022, there was a 75% decline in youth incarceration. However, racial and ethnic disparities in youth incarceration and sentencing persist amidst overall decrease in youth offending." Here is how this report gets started with its "introduction":

Youth arrests and incarceration increased in the closing decades of the 20th century but have fallen sharply since.  Public opinion often lags behind these realities, wrongly assuming both that crime is perpetually increasing and that youth offending is routinely violent.  In fact, youth offending is predominantly non-violent, and the 21st century has seen significant declines in youth arrests and incarceration.  Despite positive movement on important indicators, far too many youth — disproportionately youth of color — are incarcerated.  Between 2000 and 2022, the number of youth held in juvenile justice facilities fell from 108,800 to 27,600 — a 75% decline.

New press analysis reports juveniles sentenced as adults in Florida get longer sentences than adults

The Miami Herald has this notable and lengthy new article about juvenile sentencing headlined "‘Very disturbing’: Florida teens get longer prison sentences than adults."  Here are some of the details:

Florida is one of 13 states that give prosecutors unfettered power to try children as adults without getting sign-off from a judge.  And when judges determine the penalties for those kids, they give them higher sentences on average for felony crimes than older, adult offenders, according to a Miami Herald investigation....

Florida judges have the option to give teenage offenders “juvenile sanctions,” which send them to a juvenile facility rather than prison, or classify them as “youthful offenders,” resulting in either probation or being confined at a camp with other convicted young adults for up to six years.... Only one in 10 of the more than 20,000 children tried as adults in Florida were given juvenile sanctions and less than 5% received a “youthful offender” designation, the Herald found in an analysis of the last 15 years of state court system sentencing data from 2008 to 2022....

Children tried as adults were sentenced to a little more than three years in prison on average for third-degree felonies — around 50% longer than the average sentence given to adults for the same class of offense. The vast majority of all felony charges are third-degree offenses, which are the lowest class of felony crimes and include burglary, some types of assault, drug possession and certain DUI offenses. Children and adults had similar average sentences for more serious offenses that fall under first and second-degree felonies.

Overall, a child tried as an adult was sentenced to a little more than five years for a felony charge while an adult received around three-and-a-half years. These trends held even after the Herald adjusted for the most extreme sentences that could skew the figures.

Though it is hard to assess the Herald analysis, I am not sure these data should be all that shocking if Florida prosecutors generally tend to bring only the most aggravated juvenile offenders into adult courts for adult sentencing.  If only the very worst of juvenile offenders in Florida are sentenced like adults in adult courts, it should not be too surprising that their average sentences are longer than the full array of adult offenders, many of whom, comparatively speaking, may be less serious offenders.  (At the risk of providing a confusing (and imperfect) sports analogy, this would be like noting that the top 50 minor league home run hitters, on average, hit more home runs than all average major league hitters.)

Longest sentence given to actual Jan 6 rioter, 20 years in federal prison, handed down late last week

This Politico piece, headlined "‘Political violence personified’: Jan. 6 defendant gets 20 years for string of vicious attacks on police," reports on the handing down of the longest sentence given to any person actually involved in the Jan 6 riot.  Here are some details with some sentencing context involving some other Jan 6 defendants:

A California man who cracked the face shield of one police officer, unloaded pepper spray on others and bludgeoned countless officers with poles, boards and even his feet was sentenced to 20 years in prison Friday, the longest sentence handed down to any participant in the violence at the Capitol on Jan. 6, 2021.

Prosecutors called David Dempsey “political violence personified,” and U.S. District Judge Royce Lamberth agreed, saying that even on a day that “will be seared into our nation’s memory as a bloodbath,” Dempsey’s conduct was “exceptionally egregious.”

Of the more than 1,400 people charged with crimes related to the Jan. 6 attack — a violent assault by supporters of former President Donald Trump seeking to prevent the transfer of power to President Joe Biden — only former Proud Boys leader Enrique Tarrio has been sentenced to a lengthier prison term: 22 years. But Tarrio was not present at the Capitol that day. Rather, a jury convicted him of orchestrating a plan for his Proud Boys allies to breach the Capitol and help the larger mob overwhelm police.

Dempsey’s sentence outstrips even the one handed down to Oath Keepers leader Stewart Rhodes, who was sentenced to 18 years in prison last year for similarly orchestrating a plan to violently impede the transfer of power.

Not only did Dempsey, who pleaded guilty to assault, persist in his violence for hours on Jan. 6, but he also came to the Capitol with a massive rap sheet that included other instances of political violence. Throughout the riot, Dempsey placed himself at the center of the most violent episodes, particularly in the Capitol’s Lower West Terrace tunnel, the site of the most extreme violence that day. There he climbed atop other rioters to research the police line and wielded wooden poles and other objects to attempt to injure them.

Several of the officers who defended the Capitol that day sat in the front of the courtroom observing the proceedings, watching silently as prosecutors recounted Dempsey’s intense assaults. One officer who bore the brunt of Dempsey’s attack, Sgt. Jason Mastony, described the moment that Dempsey bashed his head with a crutch, cracking his face shield and causing a gash....

Prosecutors pressed Lamberth to impose a steep sentence in part because Jan. 6 was not an aberration for Dempsey. He has repeatedly gotten violent during protests and has used chemical sprays to disable counterprotesters. Prosecutors played a video of Dempsey using a skateboard to assault a protester at previous rallies, with some moments of violence prompting gasps in Lamberth’s courtroom....

Dempsey’s sentence landed with a particular impact on his family, who were present in the courtroom, including his 7-year-old daughter. After the sentencing, the young girl pranced in the hallway as her mother cried. A family member said the girl had just celebrated her birthday Thursday and isn’t “able to understand what’s going on.”

Only a handful of other Jan. 6 rioters without ties to extremist groups have faced sentences of 10 or more years. They include Peter Schwartz, who had a similarly long rap sheet and received a 14-year sentence; Daniel “D.J.” Rodriguez, who drove a taser into the neck of D.C. police officer Michael Fanone; and Thomas Webster, a retired NYPD officer who attempted to gouge the eyes of a D.C. police officer during a particularly vicious brawl.

A few posts reviewing Jan 6 sentencings from many prior related posts:

• Fascinating new AP accounting of all sentences given to January 6 rioters so far
• Politico provides new review of "Where Jan. 6 prosecutions stand, 18 months after the attack" 
• Reviewing latest data on Jan 6 riot prosecutions and sentencings
• A more detailed accounting of Jan 6 riot sentencings
• "The Relative Severity of Criminal Sentences in the January 6, 2021, Capitol Breach Cases"
• Latest accounting of Jan 6 prosecutions and sentences

"Truth in Sentencing, Incentives and Recidivism"

The title of this post is the title of this notable recent empirical paper authored by David Macdonald available via SSRN. (Hat tip to this recent episode of the podcast Probable Causation for highlighting the paper and bringing it to my attention.)   Here is its abstract:

Truth in Sentencing laws eliminate discretion in prison release.  This decreases the incentive for rehabilitative effort among prisoners.  I use a regression discontinuity design to exploit a change in these incentives created by the introduction of TIS in Arizona.  Before prison, I find that sentences were reduced by 20% for TIS offenders.  Further, I find that rule infractions increased by 22% to 55% and education enrolment fell by 24%.  After release, I find offenders were 4.8 p.p. more likely to reoffend.  I further find that recidivism and infractions effects are largest among drug and violent offenders.  Finally, I show that the reduction in sentences resulted in a broad equalization of time served at the cutoff, which indicates that the removal of early-release incentives by TIS was the main mechanism driving results.

"Still Cruel and Unusual: Extreme Sentences for Youth and Emerging Adults"

The title of this post is the title of this new Sentencing Project report authored by Ashley Nellis and Devyn Brown. The short report starts this way:

A wave of reforms since 2010 has changed the trajectory of punishment for young people by substantially limiting the use of juvenile life without parole (JLWOP) sentences. At the sentence’s height of prominence in 2012, more than 2,900 people were serving JLWOP, which provided no avenue for review or release.  Since reforms began, most sentence recipients have at least been afforded a meaningful opportunity for a parole or sentence review. More than 1,000 have come home. 

This progress is remarkable, yet thousands more who have been sentenced to similarly extreme punishments as youth have not been awarded the same opportunity.  Our analysis shows that in 2020, prisons held over 8,600 people sentenced for crimes committed when they were under 18 who were serving either life with the possibility of parole (LWP) or “virtual” life sentences of 50 years or longer.  This brief argues for extending the sentencing relief available in JLWOP cases to those serving other forms of life imprisonment for crimes committed in their youth.

In addition, The Sentencing Project has estimated that nearly two in five people sentenced to life without parole (LWOP) were 25 or younger at the time of their crime.  These emerging adults, too, deserve a meaningful opportunity for a second look because their developmental similarities with younger people reduces their culpability in criminal conduct. The evidence provided in this brief supports bold reforms for youth and emerging adults sentenced to extreme punishments.

"Rights, Reasons, and Culpability in Tort Law and Criminal Law"

The title of this post is the title of this new book chapter available via SSRN authored by Gregory Antill. Here is its abstract:

This article considers how a mens rea regime growing out of principles of corrective or restorative justice, taken by many theorists to underly tort law, differs from the kind of mens rea regimes which arise in a system of criminal law grounded in more traditional retributivist, expressivist, or deterrence-based principles.  Recent scholarly proposals to import restorative and corrective justice approaches to criminal law are often motivated by the view that, by eschewing punitive punishments, such approaches are less harmful toward defendants.  This article argues, in contrast, that a more traditional “offender-centric” criminal law focused on the degree of blameworthiness of the defendant actually affords less culpable defendants more protection than would a victim-centric criminal law, modeled after tort law and grounded in principles of corrective or restorative justice.

"Race, Racial Bias, and Imputed Liability Murder"

Though posted on SSRN a few months ago, I just came across this new paper that shares a title with this post and was authored by Perry Moriearty, Kat Albrecht and Caitlin Glass. Here is its abstract:

Even within the sordid annals of American crime and punishment, the doctrines of felony murder and accomplice liability murder stand out.  Because they allow states to impose their harshest punishments on defendants who never intended, anticipated, or even caused death, legal scholars have long questioned their legitimacy.  What surprisingly few scholars have addressed, however, is who bears the brunt.  This Article is one of the first to explore the racialized impact of the two most controversial and ubiquitous forms of what we call “imputed liability murder.” 

An analysis of ten years of murder prosecutions in the state of Minnesota reveals that imputed liability murder is anything but a fringe subtype of homicide: an astounding 70% of those charged with murder during this period were charged with felony murder, accomplice liability murder, or both.  The study also shows that nearly 60% of these defendants were Black, a level of racial disproportionality that is not just intrinsically extreme; it is comparatively greater than levels of disproportionality for other types of murder.  The question is, why? 

The answer lies in part in the structural and social psychological dynamics of imputed liability murder prosecutions themselves, we claim.  By reducing prosecutors’ burden to prove the most salient legal indicia of a defendant’s culpability — mens rea, actus reus, or both — and allowing prosecutors to cast a wide and undifferentiated net around almost any homicide, the felony murder and accomplice liability murder doctrines invite prosecutors to base normative charging decisions on subjective, extra-legal proxies, like “dangerousness” and “group criminality.”  Multiple studies have shown that decision-makers are more likely to attribute these proxies to Black defendants and, in turn, treat them more punitively.  Compounding these dynamics is the racial stereotypicality of the crimes themselves.  A separate body of research indicates that felony murder and accomplice liability murder have become so cognitively synonymous with Black defendants that simply shoring up the doctrines’ structural laxity may not be enough to mitigate their disproportionate enforcement.

As states across the country grapple with reforming their felony murder and accomplice liability murder laws, this Article contributes to the ongoing debate about the legitimacy of both doctrines.  It also raises critical questions about the racialized enforcement of not just these doctrines but of any doctrine that invites the State to impute criminal liability. 

Notable echoes of Grants Pass reverberating throughout California

The US Supreme Court in Grants Passlast month turned away claims that the Eighth Amendment precluded charging homeless with crimes from camping/sleeping in certain areas (basics here).  There are been an array of legal and political echoes from the ruling, and this new New York Times article, headlined "Los Angeles Says It Will Not Join Newsom’s Push to Clear Encampments," details some of the notable recent developments at the state and local level in California.  Here are excerpts:

Days after Gov. Gavin Newsom put pressure on local governments to dismantle homeless encampments across California, leaders in Los Angeles County showed a united front, unanimously passing a resolution with a clear message: We will continue to take a different approach.

The vote on Tuesday by the board of supervisors, the five-member governing body of the county, reflected the deep motivation of local leaders to align themselves on strategy for a vast region that includes 88 cities and more than 75,000 homeless people. It also reaffirmed that homelessness would not be criminalized....

The motion, while absent of Mr. Newsom’s name, seemed squarely aimed at his executive order directing state agencies to begin clearing encampments from the streets. Local governments cannot be forced to uphold the decree, but they, along with many advocacy groups, rely on the state for billions of dollars in funding for homeless services and could feel pressure to comply at some point.

Mr. Newsom, perceived as a future presidential hopeful, issued the order in response to a Supreme Court ruling that allowed governments greater authority to eradicate encampments.... Some cities like San Francisco have embraced the state order, with its mayor vowing to make homeless people so uncomfortable on the streets that they accept offers of shelter beds.

"Algorithms in Judges’ Hands: Incarceration and Inequity in Broward County, Florida"

The title of this post is the title of this article recently posted to SSRN authored by Utsav Bahl, Chad M. Topaz and others. Here is its abstract:

Judicial and carceral systems increasingly use criminal risk assessment algorithms to make decisions that affect individual freedoms.  While the accuracy, fairness, and legality of these algorithms have come under scrutiny, their tangible impact on the American justice system remains almost completely unexplored.  To fill this gap, we investigate the effect of the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) algorithm on judges’ decisions to mandate confinement as part of criminal sentences in Broward County, Florida.

Our study compiles a novel dataset of over ten thousand court records from periods before and after the implementation of COMPAS in Broward County and uses it to build a Directed Acyclic Graph (DAG) model of the confinement decision-making process.  Our approach aims to reveal potential associations between the use of COMPAS and incarceration.  We find that the many individuals deemed low risk by COMPAS are much less likely to be confined than were comparable individuals before COMPAS was in use, and similarly, individuals deemed high risk are much more likely to be confined than before.  Overall, the impact of COMPAS scores on sentencing decisions is a reduced rate of confinement for both Black and white individuals.  However, a racial bias exists within the COMPAS scores, as they are based on historical data that mirrors pre-existing racial inequities.  While the overall rate of incarceration decreases, the difference in scores exacerbates the difference in confinement between racial groups, thereby deepening racial disparity.  Insofar as criminal risk algorithms can aid decarceration, policymakers and judges alike should be mindful of the potential for increased racial inequity.

Ninth Circuit grants en banc rehearing of panel ruling that federal felon-in-possession criminal law is unconstitutional

As discussed in this post, a couple months ago, a split Ninth Circuit panel handed down a major Second Amendment ruling in US v. Duarte, No. 22-50048 (9th Cir. May 9, 2024) (available here), finding that the Supreme Court's Bruen ruling renders unconstitutional federal law's criminal prohibition on gun possession by nonviolent felons.  Now, as set forth here, yesterday a "vote of a majority of nonrecused active judges ... ordered that this case be reheard en banc."  Judge VanDyke issued a 12-page dissent from the grant of rehearing en banc that is worth a full read.  Here is an excerpt:

Nothing in the Supreme Court’s recent Rahimi decision controls or even provides much new guidance for these [felon-in-possession] cases, which is undoubtedly why the federal government took the unusual step of asking the Court to review one or more of these pending cases immediately after Rahimi instead of following the Court’s usual practice of GVRing (granting, vacating, and remanding) related cases.  It’s also why the original panel in this case, after careful consideration, saw no reason to modify our opinion after Rahimi came down.  But the Supreme Court rejected the government’s request and kicked the can down the road, GVRing all the pending Section 922(g)(1) decisions and instructing the lower courts to take another look at them in light of Rahimi.

The Supreme Court’s docket this next term is no doubt full of important issues to decide, and this delay-the-inevitable approach to pressing Second Amendment questions would be just fine if the circuit courts were populated with judges committed to faithfully applying the considerable instruction already provided to us by the Court.  But that is clearly not the case.  In this circuit, you could say that roughly two-fifths of our judges are interested in faithfully applying the totality of the Supreme Court’s Second Amendment precedent when analyzing new issues that have not yet been directly addressed by the Court.  The other 17/29ths of our bench is doing its best to avoid the Court’s guidance and subvert its approach to the Second Amendment.  That is patently obvious to anyone paying attention. To say it out loud is shocking only because judges rarely say such things out loud.... 

Section 922(g)(1) applies to anyone “who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1).  This applies to the many felons whose crime or conduct show they pose a “clear threat of physical violence to another.” Rahimi, 144 S. Ct. at 1901.  But it equally applies to felons who have no history of or expected propensity towards violence, like Martha Stewart.  When assessing the burden on the Second Amendment right imposed by the surety and affray laws, the Court in Rahimi found it key that the laws “involved judicial determinations of whether a particular defendant likely would threaten or had threatened another with a weapon.” Id. at 1902.  This tracks the view of scholars who have linked these historical laws to a principle of disarming those who pose a threat of physical violence to another.  Here the government not only failed to show that Duarte “likely would threaten or had threatened another with a weapon.” Id.  It conceded he has no history of violence.  Duarte, 101 F.4th at 663 n.1. 

Noting just some of the continuing litigation and uncertainty about gun rights after Rahimi

This week has brought some new press pieces capturing some of the uncertainty about Second Amendment limits on federal criminal prohibtions of gun possessiom after the Supreme Court's ruling last month in Rahimi.  Here are links to the pieces and excerpts:

From the Washington Post, "The Supreme Court upended gun laws nationwide. Mass confusion has followed."

[O]n both sides of the gun-control debate, people say the [Rahimi] ruling will do little to ease the confusion and disruption unleashed by the high court’s 2022 historical mandate. Only eight of roughly 500 federal court cases that are challenging the constitutionality of firearms restrictions since the Bruen decision that are being tracked by the gun-control advocacy group Brady involve the law recently upheld by the Supreme Court, according to a Washington Post review of the data. Those opposing gun regulations said they still plan to aggressively target laws that they believe violate the Constitution....

The Post identified about 500 distinct federal challenges under Bruen.  Nearly 40 percent of those federal cases involve challenges to laws that keep guns away from people who are charged with or convicted of felonies, according to a review of the data. Roughly 15 percent involve bans on types of firearms such as machine guns, military-like weapons and ghost guns.

From Bloomberg Law, "Law Keeping Guns From Drug Users Gets Fifth Circuit Questioning":

How the US Supreme Court’s recent decision in US v. Rahimi bears on the constitutionality of a law barring drug users from possessing guns was the focus of questioning by Fifth Circuit judges Tuesday.

“How would the statute operate in a place like Colorado, which has much more liberal marijuana usage laws?” Judge Kurt D. Engelhardt asked the government. “Would the state law have any type of impact, or do we just say anybody who regularly and habitually uses marijuana in the state of Colorado would be a felon under the section?”

“If they possess a firearm, our position is the latter,” said Mahogane Denea Reed, an attorney for the government. But, Reed said, that could be taken up on an as-applied challenge and not resolved in the case before the court.

“With the benefit of Rahimi from the Supreme Court, they want us to look at this from every different point of view that we can imagine,” Engelhardt responded.

The questioning came as the US Court of Appeals for the Fifth Circuit heard oral arguments in the government’s appeal of a district court ruling that the law, Section 922(g)(3), is unconstitutional. US District Judge Kathleen Cardone’s 2023 order tossed a federal indictment against Paola Connelly on Second Amendment grounds.

A few (of many) prior related posts (recent and past):

• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?
• Fifth Circuit panel declares unconstitutional federal prohibition on gun possession by “unlawful user” of controlled substances 
• After Rahimi, can Donald Trump legally possess a gun? How about Hunter Biden? 
• New post-Rahimi SG filing urges SCOTUS to "grant plenary review to resolve Section 922(g)(1)’s constitutionality" 
• Surpeme Court grants cert on First Step resentencing, GVRs gun issues, and lots of statements in (final?) order list
• "Reevaluating Felon-in-Possession Laws After Bruen and the War on Drugs"

Interesting gendered jury history in the application of the death penalty

Via the Smithsonian Magazine, I came across this fascinating piece about juries and capital punishment history headlined "How All-Female ‘Juries of Matrons’ Shaped Legal History."  I recommend the piece in full, and here are some excerpts:

For more than 700 years, women in England could avoid the death penalty just by virtue of being pregnant.  A pregnant woman sentenced to death would receive a stay of execution until the baby was born. This tactic was called “pleading the belly” and often resulted in the death sentence being reduced to a less severe penalty once the pregnancy was over.

Of course, anyone can say they’re pregnant without actually being with child. So how did courts determine whether the claim was true? Until the early 20th century, it was standard practice to assemble all-female juries, called “juries of matrons,” to determine whether a woman was pregnant and could therefore avoid hanging for capital offenses....

All-female juries existed as early as 1140 in England and persisted until 1931. Their role in the courts was highly regarded. They were medical experts. If they found the woman was “quick with child” (pregnant), their findings were not disputed....

All-female juries also existed in colonial America, as well as in Australia and New Zealand. In fact, the first use of the English jury system in Australia was a jury of matrons....

If a convicted woman’s pregnancy resulted in a birth, a reprieve from the noose was fairly common. This raised the concern among men that women might falsely plead the belly to avoid punishment for a capital offense. They worried a jury of matrons, being “naturally” sympathetic to women, might grant the guilty a reprieve from death.

While there is scant evidence that this was the case, to address the men’s concern, the laws around pleading the belly stipulated that such a plea could only be made once. If a pregnant woman was granted a reprieve from death to have the baby, she could be executed for any future crime—even if pregnant at the time.

CCJ launches new nonpartisan national panel titled "Women’s Justice Commission"

I received a press release early this morning informing me that the Council on Criminal Justice (CCJ) today was launching a new "initiative to document and raise awareness of the distinctive needs of women in the criminal justice system and build consensus for evidence-based reforms that enhance safety, health, and justice."  Here is more from the press release (with links from the original): 

The nonpartisan national panel, the Women’s Justice Commission, is chaired by Loretta Lynch, who championed women’s justice issues as U.S. Attorney General, and includes 15 other ideologically diverse leaders representing law enforcement, legislative offices, courts, corrections, medicine, research, advocacy, and directly impacted individuals. Oklahoma First Lady Sarah Stitt, a longtime advocate for breaking generational trauma among women due to substance abuse and mental health issues, is serving as Senior Adviser. The Commission is scheduled to hold its first formal meeting today in New York City, including a visit to Brooklyn program for justice-involved women....

In conjunction with today’s meeting, the Commission released two comprehensive reports — Women's Justice: A Preliminary Assessment of Women in the Criminal Justice System and Women’s Justice: By the Numbers — that paint a statistical portrait of justice-involved women and establish a foundation for the panel’s work.  Among other findings, the reports show that: 

• Females report that they make up a larger share of violent crime victims: 51% of all violent victimizations in 2022 compared to 41% of all victimizations in 1993, the start of the data series. (This figure is drawn from the National Crime Victimization Survey; it excludes homicides and includes simple assaults.) 

• Growth in arrest rates for women (41% higher in 2019 than in 1980) is due in part to a rise in arrest rates for violent crimes (317% higher in 2019 than 1980) and drug crimes (63% higher in 2019 than 1980). 

• The incarceration rate for women in U.S. prisons and jails increased dramatically (+431%) from 1982 through 2007, and then flattened as the number of incarcerated men began to fall.  Between 2010 and 2019, the year before the COVID pandemic jolted the criminal justice system, the female jail incarceration rate went up by 12%, while the male rate fell by 10%.  As overall incarcerated populations rebounded in 2021 and 2022 after COVID-related reductions, the increase of the female populations outpaced those of men. 

• More than half of the women in state and federal prisons are parents to minor children, and an estimated three of four women in local jails are mothers.  Prior to incarceration, mothers were more than twice as likely as fathers to be the sole or primary caretaker of their children. 

• Most justice-involved women come from backgrounds of poverty and trauma, and they are more likely than justice-involved men to be victims of physical and sexual abuse, suffer severe substance use and mental health issues, and to have experienced homelessness in the year prior to incarceration. 

The production and publication of these initial documents from the CCJ are already a terrific contribution, and I will eager to see what this august new commission produces in the months and years ahead.

Could families of crash victims disrupt the latest plea deal Boeing has accepted from the feds?

The question in the title of this post is prompted by some notable new corporate news that is also a federal sentencing story.  This AP piece, headlined "Boeing accepts a plea deal to avoid a criminal trial over 737 Max crashes, Justice Department says," provides the basics:

Boeing will plead guilty to a criminal fraud charge stemming from two crashes of 737 Max jetliners that killed 346 people, the Justice Department said late Sunday, after the government determined the company violated an agreement that had protected it from prosecution for more than three years.

Federal prosecutors gave Boeing the choice last week of entering a guilty plea and paying a fine as part of its sentence or facing a trial on the felony criminal charge of conspiracy to defraud the United States. Prosecutors accused the American aerospace giant of deceiving regulators who approved the airplane and pilot-training requirements for it.

The plea deal, which still must receive the approval of a federal judge to take effect, calls for Boeing to pay an additional $243.6 million fine. That was the same amount it paid under the 2021 settlement that the Justice Department said the company breached. An independent monitor would be named to oversee Boeing’s safety and quality procedures for three years. The deal also requires Boeing to invest at least $455 million in its compliance and safety programs.

The plea deal covers only wrongdoing by Boeing before the crashes in Indonesia and in Ethiopia, which killed all 346 passengers and crew members aboard two new Max jets. It does not give Boeing immunity for other incidents, including a panel that blew off a Max jetliner during an Alaska Airlines flight over Oregon in January, a Justice Department official said. The deal also does not cover any current or former Boeing officials, only the corporation. In a statement, Boeing confirmed it had reached the deal with the Justice Department but had no further comment.

In a filing Sunday night, the Justice Department said it expected to submit the written plea agreement with a U.S. District Court in Texas by July 19. Lawyers for some of the relatives of those who died in the two crashes have said they will ask the judge to reject the agreement. “This sweetheart deal fails to recognize that because of Boeing’s conspiracy, 346 people died. Through crafty lawyering between Boeing and DOJ, the deadly consequences of Boeing’s crime are being hidden,” said Paul Cassell, a lawyer for some of the families.

Federal prosecutors alleged Boeing committed conspiracy to defraud the government by misleading regulators about a flight-control system that was implicated in the crashes, which took place than less five months apart. As part of the January 2021 settlement, the Justice Department said it would not prosecute Boeing on the charge if the company complied with certain conditions for three years. Prosecutors last month alleged Boeing had breached the terms of that agreement.

U.S. District Judge Reed O’Connor, who has overseen the case from the beginning, has criticized what he called “Boeing’s egregious criminal conduct.” O’Connor could accept the plea and the sentence that prosecutors offered with it or he could reject the agreement, likely leading to new negotiations between the Justice Department and Boeing.

I know very little about corporate criminal prosecutions or about the detailed specifics of this case. But I know that former federal judge Paul Cassell is a tireless advocate for crime victims, and this new Reuters commentary, headlined "Boeing 737 MAX crash victims’ families could disrupt new plea deal with US," provides a lot of background on the possibility of the victims' families disrupting this deal. It closes this way:

Crucially, the plea agreement — unlike Boeing’s deferred prosecution agreement — must be approved by O’Connor. That requirement, said family members’ lawyer Cassell, give his clients a shot at blocking the deal. “The standard that a judge applies when reviewing a plea deal is more rigorous than it is for a deferred prosecution agreement,” said Cassell. “Make no mistake: Judge O’Connor has the authority to reject the plea agreement.”

The Justice Department is already bracing for the families’ opposition. Prosecutors told O’Connor that they’d demanded additional concessions from Boeing after meeting several times with family members and their counsel, but that some family members continued to oppose the deal. (The Justice Department did not say how many families are opposed.) The government asked the judge to postpone a hearing to give both sides time to submit briefs on the proposed deal and to allow family members to make travel plans to attend a hearing in person.

Cassell, a retired federal judge, told me that the crash victims’ families have already succeeded in “shaking up business as usual in the criminal division of the Justice Department.” Now we’ll see if his clients and other families can use their leverage to force additional relief from Boeing.

Supreme Court rules, 6-3, that a former Prez must "have some immunity from criminal prosecution for official acts during his tenure in office"

The Supreme Court finished up quite a notable Term with a lengthy and divided opinion on criminal justice immunity for the US President.  The full ruling with all the opinion in Trump v. US, No. 23–939 (S. Ct. July 1, 2024) (available here), I believe, is the longest of the Term checking in at 119 total pages. Here is the line up of opinions:

ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ., joined in full, and in which BARRETT, J., joined except as to Part III–C. THOMAS, J., filed a concurring opinion. BARRETT, J., filed an opinion concurring in part. SOTOMAYOR, J., filed a dissenting opinion, in which KAGAN and JACKSON, JJ., joined. JACKSON, J., filed a dissenting opinion.

Here is the brief start of Chief Justice Roberts' opinion for the Court, as well as a couple of key paragraphs fromt the start and finish of his 43-page majority opinion:

This case concerns the federal indictment of a former President of the United States for conduct alleged to involve official acts during his tenure in office. We consider the scope of a President’s immunity from criminal prosecution....

We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office.  At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute.  As for his remaining official actions, he is also entitled to immunity.  At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient....

The President enjoys no immunity for his unofficial acts, and not everything the President does is official.  The President is not above the law.  But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution.  And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive.  The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.  That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.

The concurring opinions of Justices Thomas and Barrett add nuance to their decisions to join the Court's opinion.  And Justice Sotomayor provides the chief dissent, which gets started this way:

Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President, ante, at 3, 13, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.