Sentencing Law and Policy

Bureau of Justice Statistics releases "Federal Prisoner Statistics Collected Under the First Step Act, 2023"

Providing another report for prison data junkies, the Bureau of Justice Statistics today released this 26-page report titled ""Federal Prisoner Statistics Collected Under the First Step Act, 2023." Here the report's introduction and some of the "Key findings" that seemed most interesting:

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 (BOP) on specific topics and to report these data annually. 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 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 2023, the statistics in this report are for calendar year 2022, which represented the fourth full year of reporting under the FSA. Data for calendar year 2023 will be available from the BOP in 2024. Unless otherwise noted, all counts in this report include persons held in federal correctional facilities operated by the BOP (122 institutional facilities).

• The federal prison population increased about 1%, from 156,542 at yearend 2021 to 158,637 at yearend 2022.

• At yearend 2022, there were 8,627 persons with prior military service in BOP facilities, accounting for about 5% of the total federal prison population.

• The number of non-U.S. citizens in federal prison at yearend 2022 was 24,078, virtually unchanged from 2020 and 2021....

• Seventy percent of persons in BOP facilities at yearend 2022 had earned a high school diploma, general equivalency degree (GED), or other equivalent certificate prior to their admission to federal prison (110,531), and an additional 3,543 earned their GED credential or equivalent certificate during 2022.

• In 2022, there were 10,177 instances of persons in special housing units, a 10% increase from 2021 (9,261)....

• In 2022, 20,880 federal prisoners participated in a nonresidential substance use disorder treatment program, while 12,035 participated in a residential program....

• In 2022, there were 80,490 prohibited acts committed by persons incarcerated in federal prisons....

• In 2022, BOP staff were physically assaulted by federal prisoners 965 times, which resulted in serious injuries 19 times and 12 prosecutions of prisoners....

• The BOP partnered with 1,580 external groups to provide recidivism reduction programming in 122 federal prison facilities in 2022.

• Sixty percent (947) of the BOP’s partnerships that were in place in 2022 to provide recidivism reduction programming were with faith-based groups.

• Of the 145,062 persons in federal prison as of December 31, 2022 assessed with the BOP’s recidivism risk tool, the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN), 54% were classified as minimum or low risk for recidivism, 27% were classified as high risk for recidivism, and 19% as medium risk at yearend 2022.

• In 2022, PATTERN classified a higher percentage of females than males as minimum or low risk for recidivism (81% compared to 52%).

• As of December 31, 2022, PATTERN classified 61% of black and 59% of American Indian or Alaska Native federal prisoners as a medium or high risk of recidivism, compared to 36% of white and 27% of Asian, Native Hawaiian, or Other Pacific Islander prisoners.

• In 2022, PATTERN classified 83% of federal prisoners ages 55 to 64 and 93% of those age 65 or older as having a minimum or low risk of recidivism.

• In 2022, the BOP identified 41 Evidence-Based Recidivism Reduction (EBRR) Programs and 52 Productive Activities (PAs) that persons in federal prison could access for various needs, including antisocial behavior, anger management, substance abuse, parenting skills, and dyslexia.

Some division in headlines covering SCOTUS divisions in ACCA drug priors cases

I flagged here yesterday the Supreme Court's oral arguments scheduled for today in the ACCA cases of Brown and Jackson.  Like so many ACCA cases, the task here of sorting out what prior drug offenses trigger ACCA's 15-year mandatory minimum prison term for illegal gun possession is not for the faint of heart.  The full 85 minutes of argument can be accessed here, and I welcome thoughts about where the Court may seem headed.  The press accounts of the argument, partially linked below, seem to highlight the Justices' division though also suggest that the defense seem perhaps more likely to prevail:

From Bloomberg Law, "Justices Back Criminal Defendants in Firearm Sentencing Rule"

From Courthouse News Service, "Justices split over longer sentences for defunct drug charges"

From Law360, "Justices Hear Dueling Rules In ACCA Drug Definition Case"

From the New York Times, "Justices Search for Middle Ground on Mandatory Sentences for Gun Crimes"

From the Washington Examiner, "Supreme Court divided on how firearm sentencing law applies to criminal drug offenders"

SCOTUS hearing two criminal cases to start latest argument session

The Supreme Court is back to in-person work on Monday with the start of its final oral argument session for 2023.  And this one begins with two criminal cases over the first two days, as described in this SCOTUSblog post by Amy Howe:

The justices will kick off the December argument session on Nov. 27 with oral argument in a pair of consolidated cases, Brown v. United States and Jackson v. United States, involving the Armed Career Criminal Act.  The ACCA [provides a 15-year]  minimum sentence ... for an individual who had been convicted of a felony and possesses a firearm when that person has at least three “serious drug offenses.”  The question before the justices is how to define “serious drug offense” for purposes of the ACCA. Eugene Jackson and Justin Rashaad Brown argue that the definition should incorporate the federal drug schedules that were in effect either when the individual committed the federal firearm offense (Jackson) or at the time of sentencing for that offense (Brown), while the federal government argues that it should instead incorporate the schedules that were in effect at the time of the state drug offenses.

On Tuesday, the justices will confront double jeopardy issues in the case of Damian McElrath, a Georgia man who was found not guilty by reason of insanity on one murder charge arising from the stabbing death of his mother, while he was found guilty but mentally ill on a different murder charge (as well as an aggravated assault charge).  On appeal, the Georgia Supreme Court threw out both of the jury’s verdicts and sent the case back for a new trial on all charges. It concluded that the verdict was “repugnant”: McElrath’s acquittal on one murder charge required the jury to find that he was insane when he killed his mother, but he could only be convicted on the other charges if the jury found that he was not insane.

When the case returned to the lower court, McElrath argued that the Constitution’s ban on double jeopardy barred the state from trying him again on the murder charge on which he had been acquitted.  But the Georgia Supreme Court rejected that argument.  It explained that a “repugnant” verdict is essentially “void” and therefore does not create a double jeopardy problem.  McElrath renews that argument in the Supreme Court, while the state defends the Georgia Supreme Court’s ruling.  Under state law, Georgia contends, there was never a valid verdict in McElrath’s case, and he can therefore be retried.

UPDATE: I just noticed that LawProf Michael Dorf has this lengthy post about the ACCA cases, titled “Today at SCOTUS: Guns or Drugs?,” which makes some great statutory interpretation points.  Here is a taste:

Each of the briefs proceeds as though the rule it proposes is somehow dictated by the statutory text understood in light of well-accepted background understandings. In fact, however, it's perfectly clear that the statutory language, even read in light of those background understandings, is highly under-determinative as to the question presented.

In such cases, we are accustomed to the Justices indulging (whether or not consciously) their ideological priors. Here those priors are unclear. The more liberal Justices don't like guns but are probably inclined to think that Congress has over-criminalized drug offenses. The more conservative Justices are not especially troubled by drug criminalization; nor are their Second Amendment sensors likely to be activated by the "bad guy with a gun" scenarios these cases present

Extended discussion of mental illness and application of the death penalty

Law360 has this lengthy new article, headlined "They Are Mentally Ill; Some States Want Them Off Death Row," which effectively reviews various aspect of how mental illness intersects with capital punishment's application.  I recommend the piece in full, and here is an excerpt:

Death rows across the country are filled with people who ... are severely mentally ill.  While the U.S. Supreme Court has prohibited the death penalty for certain vulnerable groups — people with intellectual disabilities or who were minors at the time of their crime, for instance — it has not spoken about people who suffer from mental health conditions.

Legal experts say the high court has been reluctant to provide clarity in part because it is difficult to define mental illness in a legal sense.  And more broadly, the death penalty remains a political issue where the court dares not to venture, preferring instead to leave decisions on how to administer it to the states.

With the current Supreme Court unlikely to rule on the intersection of mental illness and capital punishment anytime soon, some states that still use the death penalty have taken steps to codify definitions and thresholds for mental illness that are supposed to ensure that only people with sound mental faculties can be executed.  Ohio and Kentucky pioneered those efforts, and more states could be following in the coming years.

"As with a lot of areas of the death penalty, the change in the foreseeable future is not going to happen from the Supreme Court. It's going to happen more at the state level," said John H. Blume, a scholar and director of the Cornell University Law School's Death Penalty Project.

In January 2021, Ohio was the first state to enact a bill that excluded people who suffered severe mental illness at the time of their crime from facing the death penalty.  The law, which passed with bipartisan support, also offered limited retroactive relief, giving people already sentenced to death one year to petition courts to vacate their sentences.  At least five people have been removed from death row under the law, according to the Office of the Ohio Public Defender.

In April, another bipartisan effort put a similar law — although one with no retroactivity provision — on the books in Kentucky.  And in 2022, California, which is currently under a death penalty moratorium, enacted a law to prevent people who are permanently mentally incompetent from being sentenced to death.  The law is the first of its kind in the nation.

"Best Practices: Report on Improving Veterans’ Incarceration and Reentry in Florida"

Though I have missed Veterans Day by almost a week, I am still glad that I did not entirely miss this new report from the Florida Policy Project that has the title of this post. Here are some passages from the start of the report:

Efforts have been made to limit veterans' exposure to incarceration.  While these efforts may be diverting some veterans from prison, many veterans are still incarcerated in Florida and will eventually return to their communities. Understanding how to improve their incarceration experience and lower barriers to reentry will ensure that Florida's veterans have access to the services they earned and return to their communities better than when they left them. This report describes the problems Florida's incarcerated veterans face and offers examples of programs that could be implemented to help reduce recidivism and improve reentry....

Justice involved veterans have garnered increased attention in recent years. Several practices have been deployed to help divert veterans from incarceration.  The Department of Veterans' Affairs (VA) Veterans Justice Outreach (VJO) program and the increased use of Veterans' Treatment Courts have helped respond to the needs of justice-involved veterans while maintaining accountability for criminal activity.  Despite these efforts, many veterans find themselves incarcerated in prisons around the country.  Although national estimates suggest that over 96,000 veterans are incarcerated in state prisons in the United States (accounting for about 8% of all people incarcerated in state prisons) many states underestimate their incarcerated veteran population.  For example, based on data from inmate self-identification, California estimated their incarcerated veteran population to be approximately 2.7% of inmates.  After accessing VA data, they found that 7.7% of their incarcerated population qualified as veterans — making them eligible for numerous federal benefits.

According to data from the Florida Department of Corrections, as of October 2023, 3,989 people in Florida prisons self-identified as veterans.  Over 99% of the 3,989 people are men (only 30 women in Florida prisons self-identified as veterans).  Accounting for approximately 5% of all people incarcerated in Florida prisons, as noted above, this proportion likely underestimates the true number of people incarcerated in Florida facilities who would qualify under federal statute as a veteran.  Difficulty in identifying veterans is exacerbated by the fact that Florida Statute and the United States Code differ in their definition of who qualifies as a veteran.

Though focused on Florida's prisons, the report closes with a helpful national review of "additional veteran-specific programs that Florida policymakers and correctional practitioners should consider implementing."  Anyone concerned about veterans involved with the criminal justice system should fine this report of interest, and a short form of the report here provides a useful overview.

Some of many prior related posts:

• Thinking about sentenced troops on Veterans Day
• How many vets, after serving to secure liberty, are now serving LWOP sentences?
• Should prior military service reduce a sentence?
• Are special jail facilities for veterans (and other special populations) key to reducing recidivism?
• "Justice for Veterans: Does Theory Matter?" 
• How many states now require judges to consider military service and/or PTSD at sentencing? 
• "Military Veterans, Culpability, and Blame" 
• New Minnesota law provides for prison alternatives for veterans involved in lower-level offenses 
• Eager to honor our veterans caught up in our nation's massive criminal justice systems
• Making the case for criminal justice reform as a way to honor those who served on Veterans Day
• 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" 

New US Sentencing Commission releases new updated report on "Demographic Differences in Federal Sentencing"

The US Sentencing Commission this morning released this notable new research report titled "Demographic Differences in Federal Sentencing."  As noted in this 2020 post, the USSC has completed similar reports looking at federal sentencing outcomes and the way its advisory guidelines function about every five or six years since the Booker ruling, and this latest report is summarized on this USSC webpage in this way:

The Commission has studied the issue of demographic differences in sentencing throughout its history.  In four prior reports, studying various time periods, the Commission has examined whether differences in the length of federal sentences imposed on individuals were associated with demographic characteristics of those individuals. 

Based on continued interest in this issue and consistent with best practices, the Commission re-examined and refined the analytical methods used in its previous reports to better understand sentencing disparity in the federal courts. Using new analytical techniques and newly available data, this report examines federal sentencing practices in the five fiscal years after the 2017 report to determine if the differences observed in the Commission’s prior reports continued to persist. 

This report presents the results of that work, and furthers the Commission’s mandates to establish sentencing policies and practices that eliminate unwarranted sentencing disparities and to serve as a center for information on federal sentencing practices.

The USSC webpage also sets forth these "Key Findings":

Sentencing differences continued to exist across demographic groups when examining all sentences imposed during the five-year study period (fiscal years 2017-2021). These disparities were observed across demographic groups — both among males and females.

• Specifically, Black males received sentences 13.4 percent longer, and Hispanic males received sentences 11.2 percent longer, than White males.
• Hispanic females received sentences 27.8 percent longer than White females, while Other race females received sentences 10.0 percent shorter.

The sentencing differences in the data the Commission examined largely can be attributed to the initial decision of whether the sentence should include incarceration at all rather than to the length of the prison term once a decision to impose one has been made. In particular, the likelihood of receiving a probationary sentence varied substantially by gender and race.

• Black males were 23.4 percent less likely, and Hispanic males were 26.6 percent less likely, to receive a probationary sentence compared to White males.
• Similar trends were observed among females, with Black and Hispanic females less likely to receive a probation sentence than White females (11.2% percent less likely and 29.7% less likely, respectively).

The sentencing differences were less pronounced when the analyses focused solely on cases in which a sentence of imprisonment was imposed, which comprise 94 percent of all cases sentenced during the five-year study period.

• Focusing solely on these cases, Black males received lengths of incarceration 4.7 percent longer, and Hispanic male received lengths of incarceration 1.9 percent longer, than White males.
• There was little difference among females receiving a sentence of imprisonment. The only statistically significant difference in the length of imprisonment among females was among Hispanic females, who received lengths of incarceration 5.9 percent shorter than White females.

Differences in the length of imprisonment across demographic groups were concentrated among individuals who received relatively short sentences.

• Among individuals sentenced to 18 months or less incarceration, Black males received lengths of incarceration 6.8 percent longer than White males. The difference narrowed to 1.3 percent for individuals who received sentences of greater than 18 months to 60 months; but for sentences longer than 60 months, Black males received lengths of incarceration approximately one percent shorter than White males. Few differences were statistically significant when comparing sentences for females.

Across all analyses, females received sentences that were shorter, on average, than males.

• When examining all sentences imposed, females received sentences 29.2 percent shorter than males. Females of all races were 39.6 percent more likely to receive a probation sentence than males. When examining only sentences of incarceration, females received lengths of incarceration 11.3 percent shorter than males.

Some early chatter and speculation about Sam Bankman-Fried coming federal sentencing

A lot of folks had a lot of interesting comments in response to my first post about the future sentencing of Sam Bankman-Fried following his conviction on all seven federal criminal counts brought against him at his first trial.  Since that post, I have seen a number of press pieces with various early takes on his sentencing (which is scheduled for March 2024 and, I would guess, will take place even later).  Here is a partial round up:

From CNBC, "Sam Bankman-Fried faces over 100 years in prison at sentencing. Experts weigh in on how much time he’ll actually get"

From CryptoSlate, "SBF will likely serve 25 years rather than max sentence, former DOJ prosecutor says"

From the Daily Mail, "Sam Bankman Fried, 31, likely faces 50 YEARS behind bars, legal expert believes: $10bn FTX crypto fraudster's crimes carry maximum of 115 years behind bars"

From Forbes, "Sam Bankman-Fried Faces 110-Year Max Sentence After FTX Trial — Here’s How Long Experts Think He’ll Be Behind Bars"

From the New York Times, "Sam Bankman-Fried Could Get 100 Years in Prison. What Is Fair?"

Because I do not trust my money in crypto, I am not sure I want to trust my sentencing predictions to CryptoSlate.  That said, and though I am never inclined to place any actual bets on any actual legal proceedings, I do think 25 years may serve as a reasonable over/under for Judge Lewis Kaplan's coming sentencing decision.  

Prior related post:

• You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts? 

Former Baltimore prosecutor Marilyn Mosby now facing federal sentencing after jury conviction on two counts of perjury

Less than three years ago, then-Baltimore State’s Attorney Marilyn Mosby launched of a Sentencing Review Unit in order to, in her words, "review and when appropriate revise sentences." But now, as detailed in this AP piece, Mosby needs to worry about what a federal judge will decide is the appropriate sentence after her conviction of two counts of perjury:

A former top prosecutor for the city of Baltimore was convicted on Thursday of charges that she lied about the finances of a side business to improperly access retirement funds during the COVID-19 pandemic, using the money to buy two Florida homes.

A federal jury convicted former Baltimore state’s attorney Marilyn Mosby of two counts of perjury after a trial that started Monday. Mosby served two terms as state’s attorney for Baltimore. A federal grand jury indicted her on perjury charges before a Democratic primary challenger defeated her last year....

Mosby gained a national profile for prosecuting Baltimore police officers after Freddie Gray, a Black man, died in police custody in 2015, which was Mosby’s first year in office. His death led to riots and protests in the city. None of the officers were convicted.

Mosby declined to testify before her attorneys rested their case on Wednesday. After the verdict, she said, “I’m blessed. I don’t know what else to say,” as she left the courthouse and entered a waiting car. Mosby also faces separate charges of mortgage fraud. A trial date for those charges hasn’t been set.

In 2020, at the height of the pandemic, Mosby withdrew $90,000 from Baltimore city’s deferred compensation plan. She received her full salary, about $250,000 that year. Mosby’s 2022 indictment accused her of improperly accessing retirement funds by falsely claiming that the pandemic harmed a travel-oriented business that she had formed. She used the withdrawals as down payments to buy a home in Kissimmee, Florida, and a condominium in Long Boat Key, Florida.

Prosecutors argued that Mosby wasn’t entitled to access the funds under provisions of the Coronavirus Aid, Relief and Economic Security Act. They said her business, Mahogany Elite Enterprises, had no clients or revenue and didn’t sustain any “adverse financial consequences” from the pandemic. “This case is about a lawyer and a public servant who placed her own selfish interests above the truth,” Assistant U.S. Attorney Sean Delaney told jurors on Monday during the trial’s opening statements.

Mosby made separate withdrawals of $40,000 and $50,000 from the city retirement plan. Prosecutors say the money in the account is held in trust and belongs to the city until a plan participant is eligible to make a withdrawal. One of Mosby’s lawyers said she was legally entitled to withdraw the money and spend it however she wanted. Mosby told the truth when she certified on paperwork that the pandemic devastated her business, said federal public defender James Wyda.

During the trial’s closing arguments, Wyda said Mosby spent time and money to start a business designed to help “women of color” in business to travel to retreats. “You know the world stopped when the pandemic hit” in 2020, Wyda told jurors. “What company or business associated with the pandemic didn’t stop when the global pandemic hit?” A. Scott Bolden, a lawyer who initially represented Mosby but later withdrew from the case, has described the charges as “bogus” and claimed the case is “rooted in personal, political and racial animus.”...

U.S. District Judge Lydia Kay Griggsby agreed to move Mosby’s trial from Baltimore to Greenbelt, Maryland, a suburb of Washington, D.C. Mosby’s attorneys argued that she couldn’t get a fair trial in Baltimore after years of negative media coverage. Prosecutors opposed the venue change, saying Mosby had sought and encouraged coverage of the case.

The Sentencing Project releases new report on “System Reforms to Reduce Youth Incarceration”

The Sentencing Project this morning has released this new report titled "System Reforms to Reduce Youth Incarceration: Why We Must Explore Every Option Before Removing Any Young Person from Home." Here is the start of the 25-page report's executive summary:

Well designed alternative-to-incarceration programs, such as those highlighted in Effective Alternatives to Youth Incarceration: What Works With Youth Who Pose Serious Risks to Public Safety, are critically important for reducing overreliance on incarceration.  But support for good programs is not the only or even the most important ingredient for minimizing youth incarceration.

To reduce overreliance on youth incarceration, alternative-to-incarceration programs must be supported by youth justice systems that heed adolescent development research, make timely and evidence-informed decisions about how delinquency cases are handled, and institutionalize youth only as a last resort when they pose an immediate threat to public safety.  In addition, systems must make concerted, determined efforts to reduce the longstanding biases which have perpetuated the American youth justice system’s glaring racial and ethnic disparities in confinement.

This report will highlight state and local laws, policies and practices that have maximized the effective use of alternative-to-incarceration programs and minimized the unnecessary incarceration of youth who can be safely supervised and supported at home.

US Solicitor General supports SCOTUS review and application of Sixth Amendment rights for key issue for applying Armed Career Criminal Act

A helpful reader made sure I saw a notable Supreme Court filing by the United States in response to a cert petition in an Armed Career Criminal Act (ACCA) case. Specifically, in Erlinger v. US, No. 23-370, a case scheduled to be conferenced by SCOTUS this week, the Solicitor General starts the discussion section of this filing in this way:

Petitioner renews his contention (Pet. 14-18) that the Sixth Amendment requires a jury to find (or a defendant to admit) that predicate offenses were committed on different occasions under the ACCA. In light of this Court’s recent articulation of the standard for determining whether offenses occurred on different occasions in Wooden v. United States, 595 U.S. 360 (2022), the government agrees with that contention. Although the government has opposed previous petitions raising this issue, recent developments make clear that this Court’s intervention is necessary to ensure that the circuits correctly recognize defendants’ constitutional rights in this context. This case presents a suitable vehicle for deciding the issue this Term and thereby providing the timely guidance that the issue requires.

Here is more from the filing:

In Wooden, this Court considered the proper test for determining whether prior convictions were committed on different occasions for purposes of the ACCA.  See 595 U.S. at 364. The government advocated an elements-based approach to determining whether two offenses occurred on different occasions, which it viewed as consistent with judicial determination of a defendant’s ACCA qualification.  See Gov’t Br. at 46, Wooden, supra (No. 20-5279); see also, e.g., Gov’t Br. in Opp. at 5-11, Walker v. United States, 141 S. Ct. 1084 (2021) (No. 205578).  The decision in Wooden, however, rejected the government’s elements-based approach to the different-occasions inquiry. 595 U.S. at 366.

The Court held instead that the inquiry is “holistic” and “multi-factored,” and that “a range of circumstances may be relevant to identifying episodes of criminal activity.” Wooden, 595 U.S. at 365, 369....

In light of the holistic and multi-factored standard adopted in Wooden, the government now acknowledges that the Constitution requires the government to charge and a jury to find beyond a reasonable doubt (or a defendant to admit) that ACCA predicates were committed on occasions different from one another....

It has recently become clear, however, that the courts of appeals will not embrace that analysis without this Court’s intervention. The question presented — which is important to the administration of criminal law — accordingly warrants this Court’s review this Term....

Through both their actions and their words, the courts of appeals have made the need for this Court’s review apparent. The Fourth Circuit’s denial of rehearing en banc — premised on the insufficiency of review by a lower court — means that the underenforcement of defendants’ constitutional rights will persist there.  The Eighth Circuit’s refusal to resolve the Sixth Amendment question, after granting en banc rehearing, suggests that its pre-Wooden precedent is also likely to endure.  And despite more than a year having passed since Wooden, no other circuit has reconsidered its pre-Wooden approach.

Wooden it be nice if SCOTUS would grant cert ASAP in this ACCA case?  Notably, Justice Thomas has suggested that he disagrees with the entire prior-conviction exception to Sixth Amendment rights, so maybe this (little?) ACCA issue could even provide the Court an opportunity to reconsider that (historically suspect) exception altogether.

Just a few of many press pieces previewing SCOTUS argument in Rahimi Second Amendment case

Regular readers know that right after the Supreme Court's big 2022 Second Amendment decision Bruen, I have suggested that a number of broad federal criminal firearm prohibitions are now constitutionally suspect (see, eg, early posts here are here).  After Second Amendment challenges started producing mixed outcomes in lower federal courts, SCOTUS finally selected US v. Rahimi to be the first case to adumbrate how Bruen is to be applied to at least one form of federal firearm possession criminalization.   Oral argument in Rahimi is tomorrow morning (Nov 7), and here is a partial round-up of some argument previews from various press sources:

From the New York Times, "Texas Man at Center of Supreme Court Case Says He No Longer Wants Guns"

From Roll Call, "Supreme Court to hear arguments in case that could limit Congress on gun control"

From SCOTUSblog, "Court to hear major gun-rights dispute over domestic-violence restrictions"

From USA Today, "A blockbuster gun rights case lands at the Supreme Court. Here are three justices to watch."

From the Washington Post, "Supreme Court weighs impact of gun ruling on domestic-abuse protections"

A few prior related posts:

• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order
• Some early commentary on SCOTUS Second Amendment review of federal gun prohibition in Rahimi
• Some more commentary on SCOTUS Second Amendment review of federal gun prohibition in Rahimi
• Notable defender amicus briefs submitted in support of Second Amendment claims in Rahimi 

"Juvenile Crime and Anticipated Punishment"

The title of this post is the title of this notable new article authored by Ashna Arora just published in the November issue of American Economic Journal: Economic Policy.  Here is its abstract:

Can sanctions deter juvenile crime?  Research indicates that they may not, as offending barely decreases when individuals cross the age of criminal majority and begin to face harsher sanctions.  Several models of criminal behavior predict, however, that these small reactions close to the threshold may mask larger behavioral responses among individuals below the age threshold.  Policy variation between 2007–2015 in the United States is used to show evidence consistent with these predictions — juvenile crime increases when the age of majority is increased.  This increase is driven by younger age groups and is considerably larger than discontinuity estimates at the threshold.

New (opaque) study of federal sentences reports domestic terrorism sentences less severe than international terrorism sentences

This new AP article, headlined "International terror defendants face longer prison terms than domestic counterparts, new study finds," reports on what sounds like an interesting new study of federal sentencing outcomes in a small group of (high-profile) cases.  Unfortunately, the study itself is not yet public and so I can only report on the AP's accounting:

People convicted of crimes related to domestic extremism face far shorter prison terms than those convicted in international terrorism cases, even when the crimes are similar, a new report on the outcomes of hundreds of federal criminal cases has found.

The first-of-its-kind analysis, completed by terrorism researchers at the University of Maryland, was provided exclusively to The Associated Press. It comes after federal officials and researchers have repeatedly identified domestic violent extremists such as white supremacists and anti-government groups as the most significant terror threat to the U.S....

“This research is significant in confirming empirically what many have long argued: international terrorism cases are sentenced more harshly than domestic cases, even when the conduct is the same, and that these disparities are due to a combination of differences in the law and biases in implementing them,” said Shirin Sinnar, a professor at Stanford Law School, who was not involved in the research but reviewed it at the request of the AP.

Researchers at the University of Maryland’s National Consortium for the Study of Terrorism and Responses to Terrorism, or START, and its Center for Health and Homeland Security examined federal criminal cases between 2014 and 2019 that were brought against people radicalized in the U.S. who were pursuing political, social, economic or religious goals.

International terrorism cases were defined by the researchers as those in which the defendants had links to or were acting in support of terrorist groups or movements based outside the U.S., while domestic cases involved defendants connected to groups or movements that operate primarily inside the U.S.

The analysis looked at 344 cases, including 118 international cases and 226 domestic cases, and found the disparities are caused by multiple factors, including the charges federal prosecutors choose to file, the laws that are on the books, as well as the sentencing decisions made by judges.

Jan. 6 cases are not included in the analysis, which has not yet been peer reviewed. START’s Michael Jensen, a principal investigator of the study, said 2019 was chosen as a cutoff to ensure final outcomes of even the most complex cases were captured. Still, he said, sentencing gaps in the Jan. 6 cases that he’s analyzed also reflect this disparity. Federal prosecutors have even taken the rare step of appealing the sentences of some Jan. 6 defendants, including leaders of the Oath Keepers and Proud Boys, some of whose sentences were years below what federal sentencing guidelines had laid out.

START’s analysis found wide disparities in prison terms for similar conduct, which were most pronounced in certain kinds of cases. The largest was in cases where defendants plotted violent attacks that ultimately failed or were foiled, where international defendants received an average prison sentence of 11.2 years, compared with 1.6 years for domestic defendants.

For violent cases that led to injuries, domestic defendants received on average 8.6 years, versus 34.6 for international defendants. The disparity was smaller, but still significant, in violent fatal attacks with domestic cases at about 28.8 years and international cases at about 39.2 years....

START controlled for factors already known to contribute to sentencing disparities, such as race, gender, criminal history and the use of so-called sentencing enhancements that increase the possible prison time for certain crimes. Even accounting for these other factors, international defendants still receive harsher punishments on average....

Federal law makes a distinction between international and domestic terrorism. The State Department has formally designated dozens of groups operating abroad as foreign terror organizations and even marginal support to such groups that doesn’t result in violence can be punishable by up to 20 years in prison. There is no comparable designation for domestic extremists such as the Proud Boys, Atomwaffen or other groups with a history of violent plots and acts....

In the cases studied, terrorism-specific charges and sentencing enhancements that increase prison time were disproportionately applied to international defendants. Chief among those is the material support statute that can only be used for cases linked to international terrorist groups; a related statute that may be used for domestic terrorism was rarely invoked. Federal prosecutors used the international material support charge in 50 percent of international cases; it was just half a percent in domestic ones – a single case.

People charged in violent domestic cases also often faced less serious charges not often associated with crimes of terror, like illegal possession of firearms, the study found. The so-called terror enhancement that increases prison time was used in 60 percent of international cases, compared with just 15.4 percent in domestic ones.

George Varghese, a former national security prosecutor, said prosecutors had been hamstrung by how the law treats international terror differently than domestic extremism, but that courts also bear some responsibility. “These domestic terrorists are being treated more like run-of-the-mill criminal defendants and receiving sentences far below those of international terrorism defendants,” he said.

Without access to the actual research/report that is the basis for this AP piece, we are left to wonder about whether the comparisons here are truly apples-to-apples. As the AP piece highlights, there are some formal legal differences here, and I will be especially interested to see if guideline calculations reflect big differentials in these (quite rare) cases.

Gearing up for new guidelines amendments becoming law and working through criminal history retroactivity

A week from today, on November 1, 2023, the new US Sentencing Commission's amendments to the US Sentencing Guidelines become law (absent congressional intervention, which does not appear to be in the works).  Back in the spring when the USSC promulgated all these amendments, I blogged a bit about some of the highest-profile amendments regarding compassionate release and criminal history.  But there is far more going on with all these amendments than can be readily summarized in this forum.  Fortunately, the Commission has a lot of new materials on its website in addition to the official amendments.  Specifically, from a USSC training event, here is a slideshow that summarizes the USSC's amendment work, and a whole bunch of helpful "Amendment in Brief" documents assembled here provide primers on nine amendments.

As discussed here last week, the amendment to the compassionate release guideline may prove the highest profile matter (and likely will generate some litigation), but I think the amendment to criminal history rules indisputably will impact the largest number of cases in the years ahead.  And, as noted previously, because the Commission voted to make its new criminal history rules retroactive, thousands of current prisoners are also going to be impacted by these new guidelines.  Helpfully, the Commission has created this "Background Information" page to try to address some questions about retroactivity.  But I suspect there will be lots and lots of questions (and litigation) around these new criminal history guidelines and their retroactive application. 

I predict questions and litigation in part based on an interesting little document that the USSC posted here titled "Comparison of Retroactive Guideline Amendments."   Only hard-core sentencing nerds will find this data document fascinating, but what really draws my attention is the delta between what the document estimates as "Group size" and "Eligible for reduction" under the new criminal history amendments.  In short form, the document estimates that over 85,000 prisoners are in the "Group size" who might file for retroactive application of the new guidelines, but less than 19,000 are actually eligible for a reduction.  In other words, the USSC this estimating that for every one prisoner who secures a sentence reduction, there will be more than four others who might file and have their motion denied.

I also predict questions and litigation in part based on a couple of recent Law360 commentaries on one part of the criminal history amendment by Alan Ellis, Mark Allenbaugh and Doug Passon.  I recommend these highly:

"How Zero-Point Offender Change Will Work Prospectively"

"How Zero-Point Offender Change Should Work Retroactively"

Lots of pictures and words about the growing share of persons growing old in prison

The New York Times has this extended opinion piece, with lots of storytelling and lots of pictures, under the headline "Elderly and Imprisoned: ‘I Don’t Count It as Living, Only Existing.’" The piece is authored by Carmilla Floyd and here are excerpts:

Between 1993 and 2013, the number of people 55 or older in state prisons increased by 400 percent. The American Civil Liberties Union estimates that by 2030, people over 55 will constitute a third of the country’s prison population.

Research shows that most people age out of criminal conduct. Moreover, the Department of Justice asserts that the risk of elderly people reoffending after release is minimal. Yet decades of tough-on-crime sentencing and increasingly rigid release policies have left many to grow old in a system that was not designed to accommodate them. The cost is high, for both the residents and the public at large....

Reforms have ignited hope among residents who expected to die in prison. In California, the Public Safety and Rehabilitation Act of 2016 provides a process for nonviolent offenders to be considered for parole if their release poses no unreasonable risk to the community. Also in California, the Elderly Parole Program lays out a path for some residents who are over 50 and who have served at least 20 years. The state has also established compassionate release programs for terminally ill or medically incapacitated residents.

Efforts to reduce the aging prison population are driven not solely by compassion but also by the tremendous cost of incarcerating older people. Residents do not qualify for Medicaid, leaving the state responsible for all care expenses. Older residents are more likely to suffer from chronic illnesses like diabetes, dementia and cancer and to struggle with depression and anxiety.

Yet the rules and policies around parole decisions are often obstacles to releasing elderly residents, especially if they committed violent offenses in their youth. These secretive and subjective policies should be changed to focus on risk assessment and rehabilitation rather than the initial crime. Punitive sentences like life without parole should be abolished altogether.

Sydney Powell, legal adviser to former Prez Trump, cuts plea deal to avoid incarceration in Georgia election prosecution

As reported in this new AP piece, "Sidney Powell pleaded guilty to reduced charges Thursday over efforts to overturn Donald Trump’s loss in the 2020 election in Georgia, becoming the second defendant in the sprawling case to reach a deal with prosecutors." Here is more:

Powell, who was charged alongside Trump and 17 others with violating the state’s anti-racketeering law, entered the plea just a day before jury selection was set to start in her trial. She pleaded guilty to six misdemeanors accusing her of conspiring to intentionally interfere with the performance of election duties.

As part of the deal, she will serve six years of probation, will be fined $6,000 and will have to write an apology letter to Georgia and its residents. She also agreed to testify truthfully against her co-defendants at future trials....

Powell, 68, was initially charged with racketeering and six other counts as part of a wide-ranging scheme to keep the Republican president in power after he lost the 2020 election to Democrat Joe Biden. Prosecutors say she also participated in an unauthorized breach of elections equipment in a rural Georgia county elections office. The acceptance of a plea deal is a remarkable about-face for a lawyer who, perhaps more than anyone else, strenuously pushed baseless conspiracy theories about a stolen election in the face of extensive evidence to the contrary....

Powell was scheduled to go on trial on Monday with lawyer Kenneth Chesebro after each filed a demand for a speedy trial. The development means that Chesebro will go on trial by himself, though prosecutors said earlier that they also planned to look into the possibility of offering him a plea deal. Jury selection was set to start Friday. Chesebro’s attorneys didn’t immediately respond to messages seeking comment Thursday on whether he would also accept a plea deal.

A lower-profile defendant in the case, bail bondsman Scott Graham Hall, last month pleaded guilty to five misdemeanor charges. He was sentenced to five years of probation and agreed to testify in further proceedings.

Reviewing the big little and/or case, Pulsifer v. US, that will kick off the new Supreme Court Term

I am excited that the US Supreme Court starts hearing cases this coming Monday to kick off October Term 2023, and I am especially excited that its first case for argument is Pulsifer v. United States.  Stated in a pithy way, the issue in Pulsifer is whether the word "and" as used in the FIRST STEP Act's expansion of the mandatory minimum statutory safety valve actually means "and" or might instead mean "or."   I have seen only a couple press previews of the case so far:

From the AP, "The Supreme Court will hear a case with a lot of ‘buts’ & ‘ifs’ over the meaning of ‘and’"

From Forbes, "Why Thousands Of Prisoners Could Be Spared Because Of A Supreme Court Case Over The Word ‘And’"

In addition, Balls and Strikes has published a commentary about the case with a eye-catching headline: "How the Supreme Court Could Undercut the Future of Criminal Justice Reform."

Though I do not see the fate and future of criminal justice reform as fully at issue in Pulsifer, the US Sentencing Commission set forth data earlier this year which suggests that the fate and future of thousands of federal drug defendants will be impacted by Pulsifer.  Specifically, on page 11 of this February 2023 document discussing possible guideline amendments, the USSC set forth this analysis:

Using fiscal year 2021 data, Commission analysis estimated that of 17,520 drug trafficking offenders, 11,866 offenders meet the non-criminal history requirements of the safety valve (18 U.S.C. § 3553(f)(2)–(5)).  Of those 11,866 offenders, 5,768 offenders have no more than one criminal history point and would be eligible under the unamended pre-First Step Act criminal history requirement.  Under a disjunctive interpretation of the expanded criminal history provision, 1,987 offenders would become eligible.  The remaining 4,111 offenders would be ineligible.  In comparison, under the Ninth Circuit’s conjunctive interpretation of the expanded criminal history provision, 5,778 offenders would become eligible.  The remaining 320 offenders would be ineligible.

I read this data analysis to mean that in a typical year, nearly 4000 additional federal drug defendants could benefit from the more defendant-friendly interpretation FIRST STEP Act's expansion of the mandatory minimum statutory safety valve (in other words, if "and" means "and" and not "or").  Of course, not all defendants are subject to a significant statutory mandatory minimum term (and some avoid such a term by providing substantial assistance), but the Commission's proposed guideline amendment creates a guideline reduction that makes the safety value functionally significant to every drug defendant.

In addition to helping thousands of federal drug defendants in future cases, a pro-defendant ruling by the Supreme Court could potentially help thousands of federal drug defendants currently in prison.  Given that the FIRST STEP Act reforms have been applicable since Dec 2018, and that a number of circuits rejected the more defendant-friendly interpretation (finding that "and" really means "or" here), I have speculated that perhaps as many as 10,000 or more persons now serving time in federal prison for drug offenses might have a claim that they would have benefitted, and now should benefit, from the defendant-friendly interpretation (though there may be, of course, procedural barriers for any prisoners seeking to secure relief from a positive Pulsifer SCOTUS ruling).

I suspect we will get a sense of the Justices' thinking about this and/or statutory interpretation issue during oral argument on Monday, and I am already excited to have a SCOTUS sentencing oral argument to listen to next week.

Making the case for expanded use of home confinement for older federal prisoners

Hugh Hurwitz, who served as Acting Director of the federal Bureau of Prisons, has this new commentary in The Hill headlined "Moving elderly prisoners home saves taxpayer dollars without sacrificing safety." I recommend the full piece (and its many links), and here are excerpts:

The First Step Act reauthorized and modified the pilot program for eligible elderly offenders and terminally ill offenders.  This section allows offenders who are over 60 years of age, have served two-thirds of their sentence, are not convicted of a crime of violence and do not have a history of escape to be placed on home confinement for the remaining portion of their sentence.

Well-established research shows that older people are substantially less likely to recidivate.  In fact, the U.S. Sentencing Commission reported the recidivism rate of people over the age of 50 was less than half that of those under 50.  Under the pilot program, only those over 60 are considered, and they can’t have any history of violence, thus making their recidivism rate even lower.

At the same time, the cost of housing older people is becoming astronomical.  The average age of people in the Federal Bureau of Prisons (BOP) facilities has increased by 8 percent over the past decade.  Approximately 45 percent of offenders have multiple chronic conditions. As people age in prison, the demands on the bureau’s health resources will continue to increase....

Since the First Step Act was established, very few have been placed into this pilot program.  The program was first established in 2008 as part of the Second Chance Act. In this year’s Annual Report to Congress on the First Step Act, the Department of Justice reported that only 1,219 have been placed in the pilot program between its original enactment and this January.  Under the act, monthly placements have dwindled to an average of four per month, and a total of only 152 during its first three years.

In comparison, under the CARES Act, BOP placed an average of over 250 people per month on home confinement.  This pilot program has not been given a chance to see if it works.  It is hard to believe that Congress’s rare bipartisan acts of creating and extending this program were expected to reach so few people.  Undoubtedly, it intended this program to move the lowest risk and most costly people to home confinement; and if successful, Congress would consider making it permanent....

The SAFER Detention Act, sponsored by Sen. Dick Durbin (D-Ill.), seeks to take this program a step further.  This bill would lower eligibility to include nonviolent offenders who have served at least 50 percent (instead of two-thirds) of their sentence.  This is not an unreasonable proposal, and recent history demonstrates that this is indeed safe to do.

During the pandemic, under the CARES Act, Attorney General William Barr authorized BOP to move people to home confinement using a set of criteria that included serving at least 50 percent of their sentence.  Only 22 of the 13,204 individuals serving their sentence on home confinement since March 2020 were rearrested for a new offense.  That is just 0.17 percent, and most of those offenses were for drug-related or other minor crimes.  Many of those placed in home confinement were not elderly, so one would expect the rate of elderly recidivism to be even lower. Expanding the elderly pilot to offenders who served 50 percent of their time would save even more taxpayer dollars without creating more risk to society.

Spotlighting disconcerting comments after a disconcerting crime

A regular reader suggest that I post this recent New York Post article headlined "Vegas teen told cops ‘I’ll be out in 30 days’ after he was nabbed in killing of retired police chief in hit-and-run: report."  The reader suggested this piece shows the harms of a “slap on the wrist” as sentencing policy because if "the consequences for improper actions are not significant enough, you get more of those actions." Here are excerpts:

The teen driver who allegedly mowed down a retired police chief in a fatal hit-and-run told Las Vegas police he would be back on the streets in under a month, according to a report.

Jesus Ayala is accused of driving a stolen Hyundai Elantra on Aug. 14 along with Jzamir Keys, 16, and deliberately crashing into and killing Andreas “Andy” Probst, 64, who had been riding his bike, a disturbing video showed.

Ayala, who just turned 18, was arrested hours after Probst was killed and told the police while in custody that he wouldn’t be locked up for long.

“You think this juvenile [expletive] is gonna do some [expletive]? I’ll be out in 30 days, I’ll bet you,” Ayala told the cops, according to KLAS. “It’s just ah, [expletive] ah, hit-and-run — slap on the wrist.”...

Ayala is being held at Clark County Detention Center without bail and was hit with 18 charges including murder, attempted murder and grand larceny. Ayala and Keys made their first appearances Thursday in Las Vegas Justice Court, where the teens face charges as adults....

The video allegedly recorded by Keys in August captured the moment the stolen car plowed into the back of Probst while the two teens laughed, saying, “Hit his ass.” Probst was tossed over the hood of the vehicle and left to die.

His widow, Crystal Probst, and daughter, Taylor Probst, were in court for Thursday’s hearing but left immediately afterward without speaking with reporters. Taylor Probst said on Tuesday the attack was a senseless killing caused by the effect “social media has on our youth” — not because of her father’s 35 years in law enforcement....

The death penalty will not be sought in either case because under Nevada law, they face 20 years to life in prison if they are convicted before they turn 18 years old.

The two teens are accused of going on a crime spree throughout the day on Aug. 14, as they allegedly hit a 72-year-old bicyclist while in a stolen Hyundai sedan, drove away, crashed into a Toyota Corolla and again drove away before striking Probst. They later apparently stole two more cars before crashing them into each other.

Effective coverage of particulars of First Step Act and guideline amendment implementation

I have frequently flagged Walter Pavlo's work at Forbes because he always effectively covers lots of the important nitty-gritty in the implementation of various federal sentencing and corrections rules and policy.  And over the past week, he has two more important pieces in this space, which I will cover with links and full headlines:

"What The US Sentencing Commission’s Decision Means For First Time Offenders: The US Sentencing Commission recently passed a motion to allow a 2 point reduction against the Federal Sentencing Guidelines. The effect could mean freedom for many."

"Bureau Of Prisons’ Challenges With First Step Act Release Dates: The Federal Bureau of Prisons has struggled to implement the First Step Act and one big problem still persists ... predicting when someone will leave prison."

Both of these pieces serve as new reminders of the old aphorism, "The devil is in the details."

"Diminished criminal responsibility: A multinational comparative review"

The title of this post is the title of this notable new article from the International Journal of Law and Psychiatry authored by E. Lea Johnston, Kendall D. Runyan, Fernando José Silva and Francisco Maldonado Fuentes. Here is its abstract:

This article reviews the legal frameworks of diminished criminal responsibility in eighteen civil law jurisdictions across the globe — Brazil, Chile, China, the Czech Republic, Finland, France, Germany, Greece, Italy, Japan, Luxembourg, Poland, Portugal, Russia, Spain, Switzerland, Taiwan, and Turkey.  Specifically, it reports the legal standards and main features of partial responsibility, associated penalty reductions, and potential dispositions following a partial responsibility finding.  It also surveys empirical data on the prevalence of diminished responsibility as compared to criminal nonresponsibility.  This article, which reflects contemporary penal codes and draws from both English and non-English sources, is the only known existing source to compile these partial responsibility standards or to delineate their precise sentencing consequences.  It is also the only known source in English to describe Portugal's and Chile's treatment of diminished responsibility.  Providing a comparative overview of graduated responsibility in nearly twenty countries invites global discussion on whether and how society should recognize partial responsibility, as well as the punitive and therapeutic consequences that should attend this finding.

"Intellectual Disability, Categorical Mitigation, and Punishment"

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

Individuals with intellectual disability in the criminal legal system experience objectively worse outcomes than others — more wrongful convictions, more pretrial detention, worse plea deals, and longer sentences.  None of which is justified under the theories of punishment.  These disparate outcomes stem from initial failures to identify that a person has intellectual disability and then misunderstandings and biases about intellectual disability.  This Article examines and analyzes how the criminal legal system treats individuals with intellectual disability, the reasons for these inequitable and negative experiences, and the theories of punishment justifying their sentences.  Drawing on this foundational analysis, this Article proposes that jurisdictions adopt a categorical rule that intellectual disability is always mitigating; and that courts, in their sentencing orders, must articulate the degree to which they find intellectual disability mitigating and why.  This rule, though, is not the ultimate goal but rather is the tool for effectuating broader change in the criminal legal system.

This Article expands upon the analysis articulated in Atkins v. Virginia, which relied on both the practical realities facing individuals with intellectual disability in the criminal legal system and the theories of punishment to categorically exempt individuals with intellectual disability from the death penalty.  By applying this same approach to non-death penalty cases involving individuals with intellectual disability, it becomes clear that a categorical rule is again necessary.  After describing the proposed categorical rule, this Article describes how the rule is situated within broader conversations about disability justice and abolition, as well as the greater implications for change in the criminal legal system — including increased identification, greater understanding across system actors, and more appropriate sentences.

New PPI briefing argues housing "is one of our best tools for ending mass incarceration"

Brian Nam-Sonenstein writing for the Prison Policy Initiative has this new briefing developing the case for the claim that ending homelessness can help reduce incarceration.  The briefing has this full title: "Seeking shelter from mass incarceration: Fighting criminalization with Housing First; Providing unconditional housing with embedded services can reduce chronic homelessness, reduce incarceration, and improve quality of life – especially for people experiencing substance use disorder and mental illness."  And here is how the briefing gets started (with links from the original): 

Housing is one of our best tools for ending mass incarceration. It does more than put a roof over people’s heads; housing gives people the space and stability necessary to receive care, escape crises, and improve their quality of life. For this reason, giving people housing can help interrupt a major pathway to prison created by the criminalization of mental illness, substance use disorder, and homelessness.

For this briefing, we examined over 50 studies and reports, covering decades of research on housing, health, and incarceration, to pull together the best evidence that ending housing insecurity is foundational to reducing jail and prison populations. Building on our work detailing how jails are (mis)used to manage medical and economic problems and homelessness among formerly incarcerated people, we show that taking care of this most basic need can have significant positive downstream effects for public health and safety.

Council on Criminal Justice releases new policy roadmap encouraging alternatives to prosecution and incarceration for justice-involved veterans

Via email, I learned today of an exciting and impactful new report from the Council on Criminal Justice’s Veterans Justice Commission. Here are all the details and links via the text of the email:

CCJ’s Veterans Justice Commission today released a policy roadmap that encourages states and the federal government to expand alternatives to prosecution and incarceration for justice-involved veterans.
 
The policy framework outlines alternative sentencing options that not only recognize veterans’ service, but also that their criminal behavior may have been influenced by that service.  The options, which include expanded use of pretrial supervision and probation in lieu of a record of conviction or incarceration, are grounded in evidence-based practices used in problem-solving courts and community supervision.  The Commission also encouraged jurisdictions to pass laws enabling veterans whose cases are processed through such options to file for record expungement.
 
“We are prosecuting and imprisoning veterans while denying them the care and consideration they need and deserve — despite the fact that their criminal justice involvement is often due, at least in part, to their willingness to fight for their country,” Commission Chair and former U.S. Defense Secretary Chuck Hagel said.  “As a result, we are not only doing a disservice to veterans, but also jeopardizing the safety of the public they once fought to protect.”
 
Based on the policy framework, the American Legislative Exchange Council (ALEC) in August adopted as model policy the Veterans Justice Act.  This version of the framework will be shared with state legislatures as a blueprint for action on the issue.

The policy framework reflects an initial set of recommendations released by the Commission in March.  Additional recommendations targeting veterans’ transition from service to civilian life will be forthcoming early next year. In addition to Hagel, Commission members include former Defense Secretary and White House Chief of Staff Leon Panetta, a former Sergeant Major of the Marine Corps, the chief justice of the Georgia Supreme Court, two formerly incarcerated veterans, and other top military, veterans, and criminal justice leaders.

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" 

Two more lengthy sentences for Proud Boy members involved in Jan 6

As reported in this Reuters article, a "leader of the far-right Proud Boys was sentenced to 18 years in prison on Friday while another member got 10 years for their roles in the Jan. 6, 2021, assault on the U.S. Capitol by supporters of Donald Trump." Here is more:

Ethan Nordean, one of the group's leaders, was sentenced to 18 years in prison, short of what prosecutors had sought. Nordean had been convicted of seditious conspiracy and other crimes. "If we don't have a peaceful transfer of power in this country, we don't have anything," said U.S. District Judge Timothy Kelly.

In a statement to the judge, Nordean called Jan. 6 a "complete and utter tragedy" and said he had gone to the Capitol to be a leader and to keep people out of trouble. "While it is true that I wholeheartedly regret what I did that day, what I regret more is not being a better leader," he said. Nordean's attorney, Nick Smith, had argued for a sentence within the range of 15 to 21 months.

Earlier on Friday, Dominic Pezzola, a member of the group who did not play a leadership role and the only defendant of five to be acquitted of seditious conspiracy, yelled, "Trump won!" as he left the courtroom following his own sentencing. Pezzola was sentenced to 10 years in prison after a jury convicted him of other felonies, including obstructing an official proceeding and assaulting police....

Pezzola's attorneys had asked for their client to be sentenced to around five years in prison, and said in their sentencing memo that he had already served about three years awaiting trial. Steven Metcalf, one of Pezzola's attorneys, told the judge that Pezzola was caught in the "heat of the moment."...

The government had sought a 20-year prison term for Pezzola and a 27-year term for Nordean. Kelly on Thursday ordered two other former Proud Boys leaders, Joseph Biggs and Zachary Rehl, to serve 17 years and 15 years in prison, respectively....

Former Proud Boys Chairman Enrique Tarrio will be sentenced on Sept 5. The government is asking for a 33-year sentence.

Proud Boy Joe Biggs sentenced to 17 years for Jan 6 activity after seditious conspiracy conviction (mid-way between parties' recommendations)

As reported in this Hill piece, "Proud Boy Joe Biggs on Thursday was sentenced to 17 years in prison, the second-highest sentence handed down to anyone convicted in connection with the Capitol attack." Here is more on the first of a series of notable sentencing of Proud Boys:

Biggs was convicted of sedition and other serious felonies earlier this year after being accused of leading members of the right-wing extremist group to the Capitol and talking with the first rioter to breach police barricades just minutes before he acted....

Addressing the court, Biggs said he is “sick and tired of left versus right,” and that the only group he wants to be a part of in the future is his daughter’s parent-teacher association. “I know I messed up that day, but I’m not a terrorist,” he said through tears.

U.S. District Judge Timothy Kelly ultimately applied a terrorism enhancement to Biggs’s sentencing guidelines, wherein a defendant must have committed an offense that “was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” Kelly cited Biggs’s efforts to tear down a fence separating rioters from the Capitol and bringing them “one step closer” to their objective of halting the 2020 election certification as reason for applying the enhancement. “I really don’t think this is a close call,” he said of the decision.

Still, the 204-month sentence was significantly short of what prosecutors requested — 33 years in prison, the highest sentencing request for any defendant tried in connection with the Capitol attack.

Assistant U.S. Attorney Jason McCullough argued Thursday that Biggs’s rhetoric leading up to and after the Capitol attack demonstrated the need for a significant sentence. While the 2020 election votes were still being tallied, Biggs began advocating for violence and espousing false claims of election fraud — claims that prosecutors said ultimately motivated him and other Proud Boys to try to stop the certification of the vote on Jan. 6, 2021. “Joe Biggs will continue to carry out acts of political violence to meet his agendas,” McCullough said. “Until this country bends to his will — to his view of the world — these are not words; they’re convictions.”

A 33-year sentence is also recommended for Proud Boys leader Enrique Tarrio, whose highly anticipated sentencing was postponed at the last minute Wednesday. Oath Keepers leader Stewart Rhodes was sentenced in May to 18 years in prison, the highest sentence tied to Jan. 6 to date.

Biggs requested a sentence between 27 months and 33 months in prison, or less than three years. His attorney, Norman Pattis, said Thursday that the nation’s political strife cannot be attributed to Biggs when the front-runner in the 2024 presidential race — former President Trump — has been criminally indicted four times. “To suggest this is Biggs’s fault is silly,” Pattis said.

Biggs and defendant Zachary Rehl placed blame on Trump for the Capitol attack in their joint sentencing memo. They said that Trump’s role is not “justification for their actions” but suggested that having heeded the former president’s calls that day “should yield some measure of mitigation.”...

During their trial, the five Proud Boys defendants often suggested Trump was responsible for the riot at the Capitol that day — not them. “It was Donald Trump’s words, it was his motivation, it was his anger that caused what occurred on Jan. 6,” Tarrio attorney Nayib Hassan said in closing remarks of the trial....

The other Proud Boys will be sentenced later this week. Rehl’s sentencing is scheduled for Thursday afternoon, while defendants Dominic Pezzola and Ethan Nordean are set to be sentenced Friday.

I find it quite interesting, but perhaps not all that surprising, that the sentencing judge here imposed a sentence that is almost exactly mid-way between the sentencing recommendation of the prosecution and the defense.

Dissenting from denial of en banc review, Eighth Circuit judges make case that blanket felon disarmament violates the Second Amendment

Yesterday in this lengthy dissent from the denial of rehearing en banc in US v. Jackson, Eighth Circuit Judge Stras make a full-throated case that the broad criminal prohibition under federal law precluding persons with felony records from possessing a gun is constitutionally suspect after Bruen.   This opinion, which is joined by Judges Erickson, Grasz, and Kobes, starts this way:

By cutting off as-applied challenges to the federal felon-in-possession statute, see 18 U.S.C. § 922(g)(1), Jackson and Cunningham give “second-class” treatment to the Second Amendment. N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2156 (2022) (quoting McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (plurality opinion)).  Even worse, they create a group of second-class citizens: felons who, for the rest of their lives, cannot touch a firearm, no matter the crime they committed or how long ago it happened. See United States v. Cunningham, 70 F.4th 502, 506 (8th Cir. 2023); United States v. Jackson, 69 F.4th 495, 501–02 (8th Cir. 2023). I dissent from the decision to deny rehearing en banc.

The full opinion is a must-read for anyone following Second Amendment jurisprudence, and here is a flavor of the opinion:

Practices shortly after the Founding are consistent with the dangerousness rationale. See Bruen, 142 S. Ct. at 2136–37 (discussing the concept of “liquidation”). Of the states that protected the right to keep and bear arms, none disarmed non-dangerous felons. Cf. Handbook on the National Conference of Commissioners on Uniform State Laws and Proceedings of the Thirty-Fifth Annual Meeting 862–63 (1925) (cataloging the earliest felon-in-possession laws in the states). You read that right, none.

Even violent felons, as a class, were not disarmed until the early 20th century, nearly 150 years later. See Federal Firearms Act, ch. 850, §§ 1(6), 2(e), 2(f), 52 Stat. 1250, 1250–51 (1938). And it was only in 1961, just 62 years ago, that the federal government finally abandoned dangerousness as the litmus test for disarmament in enacting § 922(g)(1)’s predecessor. See An Act to Strengthen the Federal Firearms Act, Pub. L. No. 87-342, 75 Stat. 757 (1961); see also Range, 69 F.4th at 104. There is nothing about felon-dispossession laws that is longstanding, unless six decades is long enough to establish a “historical tradition” of the type contemplated by Bruen. Spoiler alert: it is not. See Bruen, 142 S. Ct. at 2156 (holding unconstitutional a century-old licensing regime).

In sum, the decades surrounding the ratification of the Second Amendment showed a steady and consistent practice. People considered dangerous lost their arms. But being a criminal had little to do with it....

Disarmament is about dangerousness, not virtue. We know that because colonial and post-ratification gun laws targeted rebellion and insurrection, not criminality. There have always been criminals, but there is no suggestion in any “historical analogue” that criminality alone, unaccompanied by dangerousness, was reason enough to disarm someone. Bruen, 142 S. Ct. at 2133 (emphasis omitted). And history certainly does not support Jackson’s unbending rule that felons can never win an as-applied challenge, no matter how non-violent their crimes may be or how long ago they happened.

Notable (and notably little) early coverage of USSC's decision to make new criminal history rules retroactive

As noted in this post, last week the US Sentencing Commission voted to make its new criminal history amendments retroactive.  According to the USSC's calculations, this decision will enable roughly 18,500 federal prisoners to obtain reduced sentence (and may lead to tens of thousands of additional federal prisoners to seek a reduction.  And yet, this big and impactful federal sentencing development has seemingly received almost no significant attention in the media or anywhere else that I have seen. 

Specifically, I have only seen two media pieces on the decision:

From Law360, "Sentencing Commission Backs Retroactive Cuts For 1st Timers"

From Forbes, "Sentencing Commission OKs Retroactive Reduction For Many Inmates"

Helpfully, Thomas Root over at LISA Foundation has a pair of posts providing some more coverage and context: 

• Criminal History Guidelines Going Retro By Narrowest of Margins
• Mr. Explainer’s “How-to” On Applying For Retroactivity

I suspect that there may be considerable additional public and private discussions of the USSC's consequential actions among various criminal justice insiders, but I am still somewhat surprised that major action by the leading federal sentencing agency has not generated broader discussion.  Of course, the USSC's actions do not allow reduced sentences and federal prisoner releases to become effective until February 2024, so maybe the absence of an immediate impact is a small part of this story.  (But, notably, there is news of a kind of delayed/uncertain action coming from another federal agency today (basics here) that seems certain to generate nearly endless attention.)

A couple of notable new sentencing articles from JCLC Online

I just came across a couple of interesting new sentencing pieces recently published by the Journal of Criminal Law an Criminology Online. Here are titles and links (where you can find abstracts and can download the full articles):

Sarah Turner, "White-Collar Crime, Sentencing Gender Disparities Post-Booker, and Implications for Criminal Sentencing" 

Elizabeth E. Wainstein, "The Need for Fairness and Accuracy for Women in Sentencing: Surmounting Challenges to Gender-Specific Statistical Risk Assessment Tools"

US Sentencing Commission votes to make its new criminal history amendments retroactive and adopts new policy priorities

The US Sentencing Commission conducted an interesting and eventful public meeting earlier this afternoon (which can be watched here).   This new USSC press release provides the highlights in its first paragraph:

Today the Commission, by a majority vote, allowed for delayed retroactive application of Amendment 821 relating to criminal history — meaning that certain currently incarcerated individuals could be eligible for reduced sentences made effective beginning on February 1, 2024 (unofficial text).  The Commission also adopted its next set of policy priorities that include, among other things, reviewing and potentially amending how the guidelines treat acquitted conduct for purposes of sentencing as well as assessing the degree to which certain Bureau of Prisons practices are effective in meeting the purposes of sentencing. 

Here are more of the details from the press release on what the criminal history retroactivity piece of the story means:

Equipped with a quorum of commissioners for the first time since 2018, the Commission voted in April to promulgate amendments to the federal sentencing guidelines — including Amendment 821 providing for targeted, evidence-based changes to certain criminal history rules.  Because two parts of that amendment reduce the sentencing range of future defendants, the Commission is required by law to consider whether judges can extend those reductions to previously sentenced individuals.

The Commission voted to delay implementation of any order granting such reduced sentences to ensure that, to the extent practicable, all individuals who are to be released have the opportunity to participate in reentry programs and transitional services that will increase the likelihood of successful reentry to society.

U.S. District Judge Carlton W. Reeves, Chair of the Commission said, “Our decision today is one that brings hope to thousands of currently incarcerated people and their families.  We listened to a full spectrum of views and considered the full costs associated with incarceration balanced with the time needed to review petitions and prepare for successful reentry.”

Part A of Amendment 821 limits the overall criminal history impact of “Status Points” at §4A1.1. Part B, Subpart 1 of Amendment 821 creates a new Chapter Four guideline at §4C1.1 decreasing by two the offense levels for defendants who did not receive any criminal history points and whose instant offense did not involve specific aggravating factors.

Judge Reeves added, “These prospective changes to the criminal history rules made by the Commission in April reflect evidence-based policy determinations that apply with equal force to previously sentenced individuals.  Applying these changes retroactively will increase fairness in sentencing.  At the same time, the 3-month delay will help ensure that individuals released based on our decision today receive the benefit of reentry programs and transitional services essential to support their successful reentry to society, which at the same time promotes public safety.”

The Commission estimated in its July 2023 Impact Analysis that retroactive application would carry a meaningful impact for many currently incarcerated individuals:

• 11,495 incarcerated individuals will have a lower sentencing range under Part A of Amendment 821 relating to “Status Points” with a possible sentence reduction of 11.7%, on average.
   
• 7,272 incarcerated individuals would be eligible for a lower sentencing range based upon the established criteria under Part B of Amendment 821 relating to “Zero-Point Offenders” with a possible sentence reduction of 17.6%, on average.

Today’s vote concludes two months of deliberations and the first amendment year of policy work for the commissioners, who were all confirmed last August.  As part of its deliberations, the Commission received expert testimony and public comment from a wide spectrum of stakeholders, including senators, judges, lawyers, religious leaders, doctors, professors, advocates, victims, families, and incarcerated individuals.

This year’s guideline amendments are with Congress for a 180-day review period ending November 1, 2023.  If Congress does not act to disapprove the amendments, courts can begin considering petitions for sentence reductions and could order a reduced term of imprisonment effective February 1, 2024 or later.

As for the new USSC policy priorities, here is more on that part of this dynamic story:

Today, the Commission also finalized policy priorities for the amendment year ending May 1, 2024.  In light of the 40th anniversary of the Sentencing Reform Act (SRA), the Commission anticipates undertaking a number of projects examining the degree to which current sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing as set forth in the SRA.

Among these issues, the Commission will work to assess the degree to which certain practices of the Bureau of Prisons are effective in meeting the purposes of sentencing as set forth in 18 U.S.C. § 3553(a)(2).  The Commission will also compile and disseminate information on court-sponsored programs relating to diversion, alternatives-to-incarceration, and reentry.

The Commission will also review and potentially amend how the guidelines treat acquitted conduct for purposes of sentencing.  The Supreme Court recently denied several petitions for writs of certiorari related to the use of acquitted conduct.  In issuing the denials, three Justices supported the denial to allow the Commission more time to address the issue.  “Last year’s amendment cycle was busy and abbreviated.  The Commission appreciates the opportunity to give proper attention to acquitted conduct, and we will do so this year,” said Judge Reeves.

The Commission will continue to examine the career offender guidelines, including updating the data analyses and statutory recommendations made in the Commission’s 2016 report to Congress entitled Career Offender Sentencing Enhancements.  The Commission will also continue its consideration of alternative approaches to the “categorical approach” through workshops convened to discuss the scope and impact of the career offender penalty enhancements.

The Commission will further continue its research agenda through examination of various issues, including methamphetamine offenses, sentencing differences for cases disposed of through trial versus plea, and sentences involving youthful individuals.

WOWSA. That is a whole lot, and I hope to be able to cover some of the particulars of both the retroactivity decision and the policy priorities in more detail in the coming days and weeks.  For now, I will just say kudos to the US Sentencing Commission for doing all this hard and important work in a transparent and clear manner.

"#MeToo in Prison"

The title of this post is the title of this new article now on SSRN authored by Jenny-Brooke Condon.  Here is its abstract:

For American women and nonbinary people held in women’s prisons, sexual violence by state actors is, and has always been, part of imprisonment.  For centuries within American women’s prisons, state actors have assaulted, traumatized, and subordinated the vulnerable people held there. Twenty years after passage of the Prison Rape Elimination Act (PREA), women who are incarcerated still face shocking levels of sexual abuse, harassment, and violence notwithstanding the law and policies that purport to address this harm. These conditions often persist despite officer firings, criminal prosecutions, and civil liability, and remain prevalent even during a #MeToo era that beckons greater intolerance for sexual harassment and abuse outside of prison.  Just as #MeToo helped expose the systemic gender injustice that sustains abuse in the workplace and other areas of public life, the intractability of the sexual abuse crisis for incarcerated women demands recognition of the inequality and power imbalance at its root.

PREA and reform discourse treats this harm, however, as an unwanted byproduct of an otherwise constitutional system of criminal justice.  And the treatment of people in women’s prisons remains largely an afterthought in the response to the broader carceral sexual violence crisis.  Those responses treat prison sexual abuse as a “conditions” problem capable of being remedied, no matter how persistent and endemic.  This Article rejects that prevailing account and describes the ways in which women’s prisons create and exploit gender subordination resulting in more sexual violence and gender-based harm.  As traced in this Article, Edna Mahan Prison in New Jersey serves as a dramatic example of the sordid history of women’s prisons in the United States.  At one time, the facility operated as women-led radical prison without bars and locks. But once it operated like a traditional prison, sexual abuse plagued the facility for decades.  New Jersey’s Governor announced plans to finally shutter the prison in 2020 after a sexual abuse crisis dominated headlines—the final blow to the progressive vision of its former reform-minded supervisor and namesake.

Women’s experiences are often ignored in conversations about mass incarceration even though women are the fastest-growing segment of the incarcerated population and experience the highest rates of prison sexual violence as a group.  The harm inflicted in women’s prisons differs from the crisis affecting men in that incarcerated women experience sexual abuse nearly exclusively at the hands of male correctional officers and staff.  It thus mirrors the gender subordinating nature of sexual abuse and violence in the world outside of prisons even while it also thrives on the power dynamics constructed by prisons.  This Article foregrounds those often overlooked concerns and identifies lessons from #MeToo that are necessary to end these sites of gender-based harm.

Deep dive into stores of juvenile LWOP sentences and their review

The New York Times has this lengthy new feature on extreme sentencing of juvenile offenders, with a focus particularly on happenings in Philadelphia.  I recommend the full article, which is headlined "Sentenced to Life as Boys, They Made Their Case for Release."  Here are some excerpts that highlight some of the data reported within broader story-telling:

Philadelphia lawyer named Bradley Bridge ... began the enormous undertaking of compiling a list of all the prisoners in Pennsylvania who were sentenced to life as minors. No one in the state had ever kept track of this group, who came to be called “juvenile lifers” in the courts and “child lifers” by some of the inmates themselves.

He expected the list to be long. He didn’t expect it to eventually include more than 500 names, nearly one-fifth of the more than 2,800 child lifers in the country. More than 300 of them had come through Philadelphia’s system, making a city with less than 1 percent of the country’s population responsible for more than 10 percent of all children sentenced to life in prison without parole in the United States. No other city compared.  Even more glaring: More than 80 percent of Philadelphia’s child lifers were Black. Nationally, that figure was roughly 60 percent....

In 2008, the Equal Justice Initiative found 73 children who had been given sentences of life without parole when they were 13 and 14 years old.  And all of the people who received those sentences for crimes other than homicide were children of color. “It just said something about the way in which race was a proxy for a presumption of dangerousness, this presumption of irredeemability,”[Bryan] Stevenson said....

The Supreme Court’s rulings in Miller and Montgomery marked an important rethinking of culpability when it comes to children who commit the most serious crimes.  But the practical implications of the rulings were limited: the court hadn’t abolished all life without parole sentences for children — only ones where state laws made the sentences mandatory. And while child lifers now had a chance to make a case for their release, prosecutors could still seek new life sentences.  In other states with high numbers of child lifers, including Michigan and Louisiana, as well as some parts of Pennsylvania, that’s just what they did.

Of the more than 300 child lifers who became eligible for resentencing in Philadelphia in 2016, all but about a dozen have been resentenced, and more than 220 have been released, the majority of them on lifetime parole.  That’s nearly a quarter of the roughly 1,000 total child lifers who have been released across the country.  These numbers make Philadelphia, once an outlier in imprisoning minors for life, now an outlier in letting them go.  By 2020, the city had resentenced more child lifers than Michigan and Louisiana combined. What set the city apart, said Mr. Stevenson, of the Equal Justice Initiative, was not just the buy-in from local officials and public defenders, but also the community of child lifers who became their own best argument for release....

Since the Supreme Court decisions, more than half of all states have outlawed life without parole sentences for children altogether, reducing the number of child lifers left in the country to fewer than 600, according to the Campaign for the Fair Sentencing of Youth, a national nonprofit.  Mr. Stevenson’s organization is now working to raise the minimum age at which children can be tried as adults in 11 states, including Pennsylvania, where there is no age floor.  Other states are considering abolishing mandatory life without parole sentences for people under 21.

How many of the "171 Easy Mitigating Factors" might former Prez Trump argue at a federal sentencing?

Some recent posts related to former Prez Trump's legal woes are generating lots of comments; in one thread, one comment stated that it is "probably malpractice for a defense lawyer not to have" the legendary sentencing resource "171 Easy Mitigating Factors (and Counting): Cases Granting, Affirming, Or Suggesting Mitigating Factors."   That resource, authored by Michael R. Levine, provides cites to hundreds of federal precedents suggesting a wide array of grounds for mitigating a sentence.  I share the view that any competent federal defense attorney should be using this resource at sentencing (and I have uploaded below the Table of Contents, which includes contact information for the author for those seeking to purchase the full text).

In part because all federal defendants should receive competent representation, I hope former Prez Trump's lawyers in both of his federal criminal cases make sure they have a copy of "171 Easy Mitigating Factors."  And, in putting this post together, I got to thinking about the question in the title of this post.  From a quick scan of the TOC of "171 Easy Mitigating Factors," I came to the view that quite a significant number of these factors might be potentially applicable in former Prez Trump's case if he ever actually faces a federal sentencing.  Also, I got a a bit of chuckle over how certain "Mitigating Factors" read in light of the Trump prosecutions: might his lawyers someday argue for mitigation because, eg, "defendant is a law abiding citizen who 'just did a dumb thing'" or "prosecutor’s manipulation of the charges, even if no bad faith" or "defendant is older or elderly and presents less risk of recidivism"?

Though a bit tongue-in-check, I do mean for this post to flag the important reality that former Prez Trump is sure to have lots of significant mitigating arguments to seek to avoid a lengthy prison term (or any prison term) if he is ultimately convicted on any federal charges.  Of course, there is a long (and winding?) legal road ahead before any sentencing particulars are to be front and center in his cases.  But, even though former Prez Trump is likely one of the rare federal defendants unlikely now to consider any plea deal, it still seems important to note now that his defense attorneys have a reasonable basis to advise the former President that they would have lots of viable mitigating sentencing arguments to make even if he is convicted after a trial.

Download TOC for 171 EASY MITIGATING FACTORS (AUGUST 1 2023)

Some prior related posts:

• Is it too early to try to calculate former Prez Trump's possible federal sentencing guideline range? 
• Notable general and specific accountings of former Prez Trump's federal sentencing prospects
• Noticing one count in the latest federal indictment of former Prez Donald Trump could carry the death penalty 
• After another federal indictment, another set of federal sentencing issues for former Prez Trump

Pittsburgh synagogue shooter sentenced to death by federal jury

As reported in this AP article, the "gunman who stormed a synagogue in the heart of Pittsburgh’s Jewish community and killed 11 worshippers will be sentenced to death for perpetrating the deadliest antisemitic attack in U.S. history, a jury decided Wednesday."  Here is more on the notable federal sentencing jury determination:

Robert Bowers spewed hatred of Jews and espoused white supremacist beliefs online before methodically planning and carrying out the 2018 massacre at the Tree of Life synagogue, where members of three congregations had gathered for Sabbath worship and study. Bowers, a truck driver from suburban Baldwin, also wounded two worshippers and five responding police officers.

The same federal jury that convicted the 50-year-old Bowers on 63 criminal counts recommended Wednesday that he be put to death for an attack whose impacts continue to reverberate nearly five years later.  He showed little reaction as the sentence was announced, briefly acknowledging his legal team and family as he was led from the courtroom.  A judge will formally impose the sentence later.

Jurors were unanimous in finding that Bowers’ attack was motivated by his hatred of Jews, and that he chose Tree of Life for its location in one the largest and most historic Jewish communities in the U.S. so that he could “maximize the devastation, amplify the harm of his crimes, and instill fear within the local, national, and international Jewish communities.” They also found that Bowers lacked remorse....

The verdict came after a lengthy trial in which jurors heard in chilling detail how Bowers reloaded at least twice, stepped over the bloodied bodies of his victims to look for more people to shoot, and surrendered only when he ran out of ammunition.  In the sentencing phase, grieving family members told the jury about the lives that Bowers took — elderly people and intellectually disabled brothers among them — and the unrelenting pain of their loss. Survivors testified about their own lasting pain, both physical and emotional.

Through it all, Bowers showed little reaction to the proceeding that would decide his fate — typically looking down at papers or screens at the defense table — though he could be seen conversing at length with his legal team during breaks.  He even told a psychiatrist that he thought the trial was helping to spread his antisemitic message.

It was the first federal death sentence imposed during the presidency of Joe Biden, who pledged during his 2020 campaign to end capital punishment.  Biden’s Justice Department has placed a moratorium on federal executions and has declined to authorize the death penalty in hundreds of new cases where it could apply.  But federal prosecutors said death was the appropriate punishment for Bowers, citing the vulnerability of his mainly elderly victims and his hate-based targeting of a religious community....

Bowers’ lawyers never contested his guilt, focusing their efforts on trying to save his life.  They presented evidence of a horrific childhood marked by trauma and neglect.  They also claimed Bowers had severe, untreated mental illness, saying he killed out of a delusional belief that Jews were helping to cause a genocide of white people.  The defense argued that schizophrenia and brain abnormalities made Bowers more susceptible to being influenced by the extremist content he found online.

The prosecution denied mental illness had anything to do with it, saying Bowers knew exactly what he was doing when he violated the sanctity of a house of worship by opening fire on terrified congregants with an AR-15 rifle and other weapons, shooting everyone he could find.

The jury sided with prosecutors, specifically rejecting most of the primary defense arguments for a life sentence, including that he has schizophrenia and that his delusions about Jewish people spurred the attack.  Jurors did find that his difficult childhood merited consideration, but gave more weight to the severity of the crimes....

Survivors and other affected by the attack will have another opportunity to address the court — and Bowers — when he is formally sentenced by the judge.

Prison Policy Initiative spotlights the "aging prison population"

The Prison Policy Initiative's by Emily Widra has produces this notable new briefing titled "The aging prison population: Causes, costs, and consequences." Here are some excerpts (click through for lots of helpful links and graphics):

New data from the Census Bureau reveals that the U.S. median age rose to a high of 38.9 years: an increase of three and half years in the last 23 years. The U.S. prison population is aging, too, and at a much faster rate than the nation as a whole — and older adults represent a growing portion of people who are arrested and incarcerated each year. The aging of the prison population is the result of a series of disastrous policy decisions in policing, sentencing, and reentry over roughly the last half-century. And while prisons and jails are unhealthy for people of all ages, older adults’ interactions with these systems are particularly dangerous, if not outright deadly....

According to the most recent available data on local jails across the U.S., from 2020 to 2021 — during the COVID-19 pandemic, which was particularly dangerous for older adults — the segment of the jail population aged 55 and older expanded by a greater proportion than any other age group, growing 24% compared to an average increase of 15% across all other age groups.

Meanwhile, older people make up five times as much of the prison population as they did three decades ago. From 1991 to 2021, the percentage of the state and federal prison population nationwide aged 55 or older swelled from 3% to a whopping 15%. This growth is seen even more acutely when looking at people serving life sentences: by 2020, 30% of people serving life sentences were at least 55 years old, with more than 61,400 older adults sentenced to die in prison....

State and federal sentencing policies from the 1970s to the 2000s resulted in what researchers have called “a prescription for an increase in older inmates: more prisoners, more prison beds, more lifers, and less parole.” State and federal laws enacted in this time period resulted in more incarcerated people serving longer sentences via policies that:

• Increased sentence lengths and established mandatory minimums,
• Mandated extremely long sentences for individuals convicted of three felony offenses (“three strikes” laws),
• Required people to serve upwards of 85% of their sentence in prison (“truth in sentencing” laws) before becoming parole eligible,
• Abolished parole,
• Reduced the allowed time earned for good conduct, and
• Instituted other “tough on crime” sentencing laws.

Longer and harsher sentences top the list of the most obvious mechanisms by which the national prison population exploded in the 1990s and 2000s, but they also created the problem of today’s aging prison population: many of the people who received these sentences are still behind bars now that they are twenty or thirty years older.

After a 6-3 SCOTUS vote to deny review, Missouri completes execution of child killer who claimed mentally incompetence

As reported in this AP piece, a "man who abducted a 6-year-old Missouri girl and beat her to death at an abandoned factory two decades ago was put to death Tuesday evening, shortly after the U.S. Supreme Court rejected a request to block the execution over arguments he was mentally incompetent." Here is more:

Johnny Johnson, 45, received a lethal injection dose of pentobarbital at a state prison in Bonne Terre and was pronounced dead at 6:33 p.m. CDT, authorities said.  He was convicted of the July 2002 killing of Casey Williamson in the St. Louis area suburb of Valley Park.

Johnson, who had schizophrenia, expressed remorse in a brief handwritten statement released by the Department of Corrections hours before being executed.... Among those witnessing Johnson’s execution were several members of the girl’s family and the former prosecutor and police investigator who handled his case.

The U.S. Supreme Court, with Justice Sonia Sotomayor and two other justices dissenting, rejected a late request to stay the execution. In recent appeals, Johnson’s attorneys have said the inmate has had delusions about the devil using his death to bring about the end of the world....  Former St. Louis County Prosecutor Bob McCulloch called the delusions “nonsense” and said Johnson inflicted “unspeakable horrors” upon Casey. “He’s got some issues — significant issues,” McCulloch said moments before witnessing the execution. But “he knew exactly what he was doing.”...

At Johnson’s trial, defense lawyers presented testimony showing their client — an ex-convict who had been released from a state psychiatric facility six months before the crime — had stopped taking his schizophrenia medication and was acting strangely in the days before the slaying.

In June, the Missouri Supreme Court denied an appeal seeking to block the execution on arguments that Johnson’s schizophrenia prevented him from understanding the link between his crime and the punishment.  A three-judge federal appeals court panel last week temporary halted execution plans, but the full 8th U.S. Circuit Court of Appeals reinstated it. Johnson’s attorneys then filed appeals to the U.S. Supreme Court centered around his competency to be executed.

Gov. Mike Parson on Monday denied a request to reduce Johnson’s sentence to life in prison.  The clemency petition by Johnson’s attorneys said Casey’s father, Ernie Williamson, opposed the death penalty.  But Casey’s great aunt, Della Steele, wrote an emotional plea to the governor urging the execution be carried out to “send the message that it is not okay to terrorize and murder a child.”  Steele said grief from Casey’s death led to destructive effects among other family members....

The execution was the 16th in the U.S. this year, including three previously in Missouri, five in Texas, four in Florida, two in Oklahoma and one in Alabama.

This ten-page dissent from the denial of a stay and from the denial of certiorari, authored by Justice Sotomayor and joined by Justices Kagan and Jackson, includes these passages at its outset and end:

The Supreme Court of Missouri, over a noted dissent, denied Johnson a competency hearing because it concluded that he had not made a substantial threshold showing of insanity.  That was error.  A federal District Court then denied Johnson habeas relief.  A panel of the Eighth Circuit stayed his execution and issued a certificate of appealability (COA), which would have permitted his competency claim to be fully briefed and argued on the merits.  But the en banc Eighth Circuit, over a dissent from three judges, vacated that stay and declined to issue a COA because it concluded that no reasonable jurist could disagree with the District Court.  That too was error.  Because reasonable jurists could, did, and still debate whether the District Court should have granted habeas relief, the Eighth Circuit should have authorized an appeal.  I would grant the petition for a writ of certiorari, summarily vacate the order of the Eighth Circuit denying a COA, and grant Johnson’s request for a stay of execution pending appeal....

The Court today paves the way to execute a man with documented mental illness before any court meaningfully investigates his competency to be executed.  There is no moral victory in executing someone who believes Satan is killing him to bring about the end of the world.  Reasonable jurists have already disagreed on Johnson’s entitlement to habeas relief.  He deserves a hearing where a court can finally determine whether his execution violates the Eighth Amendment.  Instead, this Court rushes to finality, bypassing fundamental procedural and substantive protections.  I respectfully dissent.

Noticing one count in the latest federal indictment of former Prez Donald Trump could carry the death penalty

In many cases, even high-profile ones, I tend to be disinclined to focus too much on a defendant's sentencing prospects until a plea or a jury conviction seems forthcoming.  But with historic and repeated indictments of a former President who is also a front-running presidential candidate, it is hard not to talk about sentencing possibilities as soon as there is an actual indictment.  And, via an email tonight on the CrimProf listserve, Professor Jack Chin flagged a particularly interesting added sentencing element flowing from this latest indictment of former Prez Trump:

So one of the offenses Trump was charged with today carries a possible death sentence.  The NYT reports that seven people died in connection with the January 6 riots, so the conspiracy against rights is death eligible.  I assume a death notice will not be filed, and oppose the death penalty in all cases myself, but, if one supports the death penalty in principle, would seven be enough?

18 USC 241:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

Big new report examines developing "hybrid justice systems" for offenders between 18 and 25

I tend to looks at the development of juvenile justice systems as a kind of sentencing innovation as jurisdictions decided the purposes and processes of punishment should be different for juvenile offenders.  In turn, I also think sentencing concerns are a big part of the development of new "hybrid justice systems" developed for young (or emerging) adults, though I have not followed these developments all those closely.  But we can all catch up on these trends through this huge new report emerging from Columbia University titled "Time for Change: A National Scan and Analysis of Hybrid Justice Systems for Emerging Adults." 

The full report, authored by Selen Siringil Perker and Lael E. H. Chester, is "the first in the nation to systematically document the existence of an emerging adult jurisdiction — hybrid systems (also known as 'youthful offender laws') that create a distinct path for emerging adults (ages 18-25) by lessening some of the harm imposed by the adult system and extending some of the rehabilitative opportunities of the juvenile system to support the healthy transition to adulthood."  The extended foreword and executive summary can be found at this link, and here is an excerpt:

Our national scan revealed seven jurisdictions that have hybrid systems for emerging adults: Alabama, District of Columbia, Florida, Michigan, New York, South Carolina, and Vermont.  After conducting the scan, we analyzed the key provisions of each of these hybrid statutes, reviewed the existing, publicly available (but scarce) data on system-involved emerging adults, and conducted virtual and in-person interviews with key stakeholders to better understand the practical application of the law and the experience of emerging adults in these jurisdictions.  Combining the information gleaned from our research with the existing body of research on emerging adults’ developmental needs and the adult criminal legal system’s effect on young people, we offer key elements of a model hybrid statute to serve as a resource for states that wish to adopt or expand hybrid systems.

Hybrid statutes vary greatly by the degree of protections they offer and present themselves on a wide spectrum between the adult criminal legal systems and juvenile justice systems.  This versatile nature of hybrid systems makes them an important tool in the toolbox of policymakers that seek to transform justice responses to emerging adults. Hybrid systems are associated with enhanced public safety as indicated in some studies by lower recidivism rates of impacted youth for weapon and violent offenses.  Through record protection measures, hybrid systems reduce collateral effects of a criminal record, increase employment and community engagement opportunities for youth, and can meaningfully curb incarceration.  A study of gun violence in Chicago, for example, showed that employment is the most important preventative factor to keep emerging adults from carrying guns.

Remarks of Chair of US Sentencing Commission suggests his affinity for retroactivity of new criminal history guidelines

A series of meetings kept me from watching all 6+ hours of the US Sentencing Commission's public hearing yesterday considering the possible retroactivity of the USSC's new amendments to the criminal history guidelines.  Helpfully, the full Commission hearing is now archived on this USSC webpage (though I will readily admit that a distinct event is now drawing my attention.) 

But yesterday I was able to hear these opening remarks by Judge Carlton W. Reeves, the Commission's Chair.  Those remarks certainly suggested to me that the Chair is supportive of retroactivity application of the USSC's new criminal history guidelines.  These passages in particular caught my attention (emphasis in original, footnotes omitted):

The purpose of today’s hearing speaks to our core mission of crafting sentencing policy that is fair and evidence-based.  In May, we unanimously voted to create policies that will change how criminal history affects the sentences of defendants.  Reflecting the latest research on effective criminal justice practices, these policies will ensure defendants receive more just and evidence-based sentences in the years to come. Now, we must decide whether people incarcerated under the old policies should get a chance to have their sentences revised in line with our new one. In other words, today’s testimony will help us decide whether to apply our criminal history amendments to the sentencing guidelines retroactively.

Congress has told us to make this decision by “examining a wide spectrum of views.” To that end, we asked the public to provide us with their input. We received hundreds of comments from senators, judges, lawyers, religious leaders, doctors, professors, advocates, victims, families, and incarcerated people.... We heard them say this decision on retroactivity is our chance to “correct past wrongs and address the systemic disparities that have plagued our society for far too long.” We heard them say our decision must weigh the needs of “victims and survivors.” And we heard them say our decision can “injec[t] hope into the lives of those whom will be eligible.”...

I want to give our witnesses and the public some insight into how we Commissioners will make our decision about retroactivity. Many of the witnesses speaking today will talk about the costs of any decision we make.  Let me reassure you: we take pains to consider all these costs.  We consider the time judges and their staffs will have to expend dealing with filings for reduced sentences.  We consider the additional resources expended on re-entry and supervision.  But we also consider the financial costs of continuing to incarcerate someone, which stands at roughly $44,000 per person per year with the BOP -- which is $40,000 more than the annual cost of supervision, and which increases year after year after year.  And we consider a cost that has little to do with docket sizes or dollars and cents: the moral price of incarcerating someone for longer than is necessary. As my former colleague Judge George Hazel so aptly put it, “Liberty is the norm; every moment of incarceration should be justified.” Whatever decision the Commission makes on retroactivity, I promise that it will reflect every cost, every benefit, and every perspective we hear about today.

The Chair is only one of seven votes on the Commission, but these comments reinforce my previous guess that the Commission is likely to new criminal history rules fully retroactive.  Yet there still could be devil in the details.

Some prior related posts:

• Highlighting US Sentencing Commission's significant amendments to federal guidelines' criminal history rules
• US Sentencing Commission publishes detailed retroactivity analysis for its amendments to federal guidelines' criminal history rules
• US Sentencing Commission schedules public hearing to consider retroactivity of amendments to criminal history rules 
• Dynamic comments submitted to US Sentencing Commission as it considers retroactivity of new criminal history guidelines

Debate over FIRST STEP Act safety value expansion — and whether "and" means "or" — now scheduled for first SCOTUS argument for OT23

I have noted in prior posts my excitement for the fascinating little sentencing case on the Supreme Court docket for next Term.  As flagged here, the Justices in February granted cert in Pulsifer v. United States, which raises the statutory issue of whether the word "and" as used in the FIRST STEP Act's expansion of the mandatory-minimum safety valve actually means "and" or might instead mean "or."  As I have noted before, federal criminal justice practitioners and sentencing fans should follow Pulsifer closely because its resolution will impact how thousands of drug defendants are sentenced in federal courts every year; statutory construction gurus should be interested in how Pulsifer addresses issues related to textualism, plain meaning and the rule of lenity.  

Now adding to my excitement is the recent release of the Supreme Court's first arguments calendar for October Term 2023.  The Justices have scheduled six arguments for the first two weeks of October, and Pulsifer is the very first of the bunch scheduled for Monday, October 2.  Being the first argument of a new SCOTUS Term seems likely to generate a little more attention for this little sentencing case, though surely there will still be a lot more focus on the case scheduled for argument on October 3 concerning the constitutionality of the Consumer Financial Protection Bureau.

A few prior related posts:

• SCOTUS grants certiorari to review reach of FIRST STEP Act's expansion of statutory safety valve 
• Top-side SCOTUS briefs in Pulsifer address FIRST STEP Act's expansion of statutory safety valve

Dynamic comments submitted to US Sentencing Commission as it considers retroactivity of new criminal history guidelines

In this April post, I provided some details on the US Sentencing Commission's proposed consequential amendments to alter how criminal history is assessed and calculated under the federal sentencing guidelines.  The big ticket items in the proposed amendments concern "status points" and "zero-point offenders."  As detailed here, after proposing these criminal history amendments, the Commission sought comment on whether it should make the key parts "available for retroactive application." 

As detailed in this May post, the USSC thereafter published on its website this 48-page memo titled "Retroactivity Impact Analysis of Parts A and B of the 2023 Criminal History Amendment."  Here is how I roughly summarized this analysis: "it seems that the USSC is estimating that just under 19,000 thousand current federal prisoners would be able to get just under 1.2 years off their sentences if these new criminal history amendments are made retroactive.  That adds up to a total of about 23,000 prison years saved were these new guideline amendments made retroactive and these estimated impacts become reality."

As flagged in this June post, the Commission has scheduled a public hearing for Wednesday, July 19, 2023, in order "to gather testimony from invited witnesses concerning whether the Commission should designate as retroactive Parts A and B of the 2023 Criminal History Amendment."  As the USSC explained in its hearing notice, "because these two provisions reduce the sentencing range for some offenders, the Commission is statutorily required to determine whether either or both of these parts of the amendment should be applied retroactively to previously sentenced, imprisoned defendants."  

When announcing the public hearing, the Commission also here released a massive Compilation of Public Comment.  Running over 250 pages, these public comments are quite interesting with a wide range of persons making a wide range of arguments both in favor and against retroactivity of these criminal history amendments.  For a slightly more efficient overview of all the pros and cons, the Commission has now posted here the written testimony of the 15 witnesses scheduled to testify all the full-day USSC hearing starting at 9am on Wednesday, July 19.

I am inclined to guess that the US Sentencing Commission is inclined to make its new criminal history rules fully retroactive, but I do not think any outcome is a given.  Notably, the Justice Department's statement "opposes retroactive application of both Parts A and B of the criminal history amendment," and, in case of a retroactive vote, has requested "that the Commission delay implementation of retroactivity by at least nine months to allow the Bureau of Prisons and the U.S. Probation Office sufficient time to properly prepare and coordinate reentry services for eligible offenders."  Both the particulars and process for retroactivity may be widely debated during the hearing. 

An uncommon federal sentencing of a corporation after a (common?) plea deal

I do not blog much about the criminal sentencing of corporations in large part because there are not that many criminal sentencings of corporations.  But this press piece, headlined "Allianz US Unit Ordered to Pay $6 Billion in Securities Fraud Case," reports on a notable one from earlier this week:

A New York judge ordered a unit of Allianz SE to pay about $6 billion as punishment for misrepresenting the investment risk posed by a group of hedge funds, imposing a sentence agreed more than a year ago as part of a plea deal.

Allianz Global Investors US had accepted the payout last year when it pleaded guilty to a single criminal charge of securities fraud as part of a deal with federal prosecutors. US District Judge Colleen McMahon announced the sentence Wednesday in Manhattan.

The plea deal ended an embarrassing chapter for the German insurance giant, which agreed to sell the bulk of Allianz Global Investors US to Voya Financial Inc. after the unit was banned for a decade from some fund services in the country.  Allianz Chief Executive Officer Oliver Baete, who had made settling the conflict a priority, in an interview last month called the discussions “among the most consequential negotiations” of his life.

AGI in the US planned to dissolve shortly after the sentencing, according to a July 5 letter to the judge by both sides. The unit was automatically disqualified from acting as an investment adviser or principal underwriter for any mutual fund or closed-end fund for 10 years. In addition to the payments, AGI was sentenced to five years’ probation, which will be discontinued once it no longer exists, McMahon said.

The Allianz unit’s guilty plea was unusual for a major financial firm. Companies more often resolve government investigations by paying money and pledging corrective actions without admitting any wrongdoing.  The judge said AGI is the first corporation she has sentenced in her 25 years on the bench.

Gregoire Tournant, the former chief investment officer and co-lead portfolio manager of the funds, was charged with fraud and conspiracy in connection with the funds’ meltdown. He has pleaded not guilty and is fighting the charges. Two other executives with the funds, Stephen Bond-Nelson and Trevor Taylor, pleaded guilty to conspiracy and fraud last year and are cooperating with prosecutors....

AGI US’s Structured Alpha funds were marketed as providing protection against a market crash. Instead, they ended up losing $7 billion during the tumultuous early days of the pandemic in 2020, spurring multiple lawsuits from pension plan investors.

Under the sentence, AGI was ordered to pay fines of $2.3 billion, $3.2 billion in restitution and to forfeit $463 million. It will receive credit for $1.9 billion already made over to victims of the fraud and for a $675 million civil penalty paid to the US Securities and Exchange Commission.

Former Ohio House speaker gets max federal prison sentence of 20 years for political corruption

In this post last week, I flagged the interesting federal sentencing memos submitted in the notable case of political corruption involving Ohio's former House Speaker Larry Householder.  Back in March, Householder and his co-defendant were convicted after trial on one count of conspiracy to participate in a racketeering enterprise involving bribery and money laundering.  In part because of Householders age (64), I thought he might get below (perhaps way below) the 16-20 years that federal prosecutors recommended.  But, as this local article details, he got the statutory max:

A federal judge on Thursday sentenced former Ohio House Speaker Larry Householder to 20 years in prison for spearheading the largest political corruption scheme in state history.  U.S. District Judge Timothy Black’s sentence punctuated the fall for Householder, once one of the most powerful politicians in Ohio, but now a federal prisoner.

Householder, 64, led a scheme to secretly receive $60 million from Akron-based FirstEnergy Corp — a bankroll that helped fund his political operation, execute a campaign to pass legislation worth more than $1 billion for the company, and pay off his personal debts.  A jury in March found him guilty of racketeering alongside FirstEnergy Solutions lobbyist Matt Borges, a former chairman of the Ohio Republican Party.  Borges is scheduled to be sentenced Friday....

In a blistering statement before delivering Householder’s sentence, Black called the former speaker a “bully with a lust for power.”  Householder was taken into custody immediately following the sentencing hearing. Showing little reaction other than a reddening of his cheeks, Householder stared straight ahead as federal marshals slapped handcuffs on his wrists and led him from the court room.

He offered no apology in his statement before the court, saying that “my life was totally and fully about making life better for those I served.”  As he was led from the courtroom, Householder turned to give a sheepish smile to family assembled in the courtroom.  “The court and the community’s patience for Mr. Householder has passed,” Black said.

Federal prosecutors argued Householder should serve 16-20 years in prison.  His defense attorneys argued for 12 to 18 months behind bars for the Glenford Republican.  But Black gave Householder the maximum sentence shortly after prosecutors evoked a who’s-who of disgraced politicians, from former Cuyahoga County Commissioner Jimmy Dimora to ex-Illinois Gov. Rod Blagojevich. “He committed perjury in this courtroom.  A sentence will show that the rule of law applies to everyone, including politicians,” assistant U.S. Attorney Emily Glatfelter said.

Householder was arrested in July 2020 and lost his speakership but hung on to his seat in the House for nearly a year. His colleagues in the House finally expelled him in June 2021.  He twice served as House Speaker, first from 2001 to 2004, when he left amid a federal pay-to-play investigation that ended without criminal charges.  He returned to the House in 2017 and to the speaker’s role in 2019, aided by secret political donations from FirstEnergy.

The Akron-based utility poured $60 million in bribes into so-called “dark money” nonprofits that allow political contributions to be shielded from the public.  That money was funneled to Householder to bankroll political advisers, polling, TV advertisements and other pieces of his political operation, and to pay for Householder’s personal legal debts and repairs on Householder’s Florida home, where his mother lived....

Householder testified in his own defense in the trial, a move that legal experts said backfired after prosecutors shredded his testimony on cross-examination. Householder’s attorneys have already said they plan to appeal.

Two others have pleaded guilty in the case — Householder’s political aide Jeff Longstreth and FirstEnergy Solutions lobbyist Juan Cespedes.  Both testified at trial and have not yet been sentenced. Neil Clark, another co-defendant in the case, died by suicide in 2021.

Borges is scheduled to be sentenced at 11 a.m. Friday. His attorneys asked for a one-year sentence, while prosecutors asked for between five and eight years.

No current or former employees of FirstEnergy have been charged.  The company agreed to cooperate with federal investigators and pay a $230 million fine as part of an agreement to avoid prosecution.  It also admitted paying a sperate $4.3 million bribe to former Public Utilities Commission of Ohio chairman Sam Randazzo. Randazzo has not been charged with any crime.

Householder’s case became synonymous with how state politicians operate — with dark money, virtually untraceable for the public.  Critics praised the conviction, but lamented little has changed in state politics.  At trial, Householder’s attorneys argued that the prosecution’s case amounted to politics as usual in Ohio.

Prior related post:

• Notable sentencing memos in high-profile Ohio political corruption case (showcasing nuttiness of guidelines) 

Bureau of Justice Statistics releases "Juveniles Incarcerated in U.S. Adult Jails and Prisons, 2002–2021"

The Bureau of Justice Statistics today released a short "Just the Stats" document reporting data on juveniles held in adult correctional facilities over the last two decades.  This report, titled "Juveniles Incarcerated in U.S. Adult Jails and Prisons, 2002–2021," starts this way:

Juveniles (persons age 17 or younger) arrested or convicted for a criminal offense may be housed in juvenile residential facilities or in adult jails and prisons, depending on state statute, judicial discretion, and federal law. This report details trends for juveniles who are held in adult facilities.

Key Findings

• The number of juveniles incarcerated in all U.S. adult prisons or jails declined from a peak of 10,420 in 2008 to a low of 2,250 in 2021 (figure 1).
• In 2021, local jails had custody of 1,960 juveniles while state and federal adult prisons held 290.
• The percent of the total jail population who were juveniles declined from 0.9% in 2002 to 0.3% in 2021 (figure 2).
• The percent of the total prison population who were juveniles declined from 0.2% in 2002 to 0.02% in 2021.
• In 2021, 87% of juveniles in adult correctional facilities were held in local jails and 13% were held in prisons, compared to 66% in local jails and 34% in prisons in 2002, the earliest year for which comparable data are available for both populations (table 1).

US Sentencing Commission schedules public hearing to consider retroactivity of amendments to criminal history rules

I received an official email today from the US Sentencing Commission providing "Notice of Public Hearing" to be on Wednesday, July 19, 2023 from  9:00 AM - 3:00 PM (EDT).  Here is the topic:

Pursuant to Rule 3.2 of the Rules of Practice and Procedure of the United States Sentencing Commission, a public hearing of the Commission is scheduled for Wednesday, July 19, 2023, from 9:00 a.m. - 3:00 p.m. (EDT).  The hearing will be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., in the Commissioners' Conference Room of Suite 2-500 (South Lobby). 

The purpose of the public hearing is for the Commission to gather testimony from invited witnesses concerning whether the Commission should designate as retroactive Parts A and B of the 2023 Criminal History Amendment. Because these two provisions reduce the sentencing range for some offenders, the Commission is statutorily required to determine whether either or both of these parts of the amendment should be applied retroactively to previously sentenced, imprisoned defendants.

The hearing will also be livestreamed and recorded at this link.

Related Materials: Public Comment and Impact Analysis

The Commission requested public comment on this issue and received thousands of submissions. The comment period has now closed. On May 15, 2023, the Commission also published an analysis of the impact of the amendment if parts A and B are made retroactive.

• View Public Comment
• View Impact Analysis

Notable new PPI report on "Contending with Carveouts: How and Why to Resist Charge-Based Exclusions in Reforms"

The folks at Prison Policy Initiative have this intriguing new advocacy document titled "Contending with Carveouts: How and Why to Resist Charge-Based Exclusions in Reforms." Here is how the document gets started:

Criminal legal system reforms are being introduced at a rapid pace across the United States, often with the stated goal of reducing our extreme prison and jail populations.  Too often, however, these reforms are handicapped because they exclude large categories of people impacted by the criminal legal system.  These “carveouts” generally exclude people charged with or convicted of violent, sex-related, or other serious charges.  This is sometimes referred to as focusing on the “non, non, nons” — nonviolent, non-sexual, and non-serious charges.  “Serious” charges often include drug crimes that involve specific controlled substances, like fentanyl or methamphetamines.  Too often, policymakers believe that these carveouts are politically necessary in order to pass legislation, or believe that they are actually good policy.

Some criminal legal system reformers make the mistake of assuming that carveouts are an unavoidable or necessary part of all criminal legal reform.  But the reality is that criminal legal system reform will never achieve its goals if we continue to focus only on non-violent, non-sexual, and non-serious charges.  Carveouts dramatically lessen the impact of criminal legal system reforms, and create a more difficult political landscape for later reform.

Carveouts are common, but not inevitable.  Below, the Prison Policy Initiative has gathered a set of resources for advocates and policymakers to understand the problems posed by carveouts and equip them with arguments to make sure that criminal legal reform can be for everyone, not just for a small subset of impacted people.

Hunter Biden agrees to plea deal seeking to avoid prison time on tax and gun charges

As reported in this Politico piece, "Hunter Biden has reached a deal with federal prosecutors to resolve a five-year federal investigation into his failure to pay about $1 million in federal taxes and his purchase of a handgun in 2018." Here is more:

Under an agreement detailed Tuesday in a filing in federal court in Delaware, President Joe Biden’s son will plead guilty to a pair of misdemeanor tax charges. Prosecutors have also charged him with possessing a firearm while being a user of illegal drugs — a felony — but have agreed to dismiss that charge if he completes a two-year period of probation.

Hunter Biden, 53, is unlikely to serve time in prison if he complies with release conditions. The deal calls for both sides to recommend that he be put on probation.

The probe was overseen by Delaware U.S. Attorney David Weiss, who was appointed by former President Donald Trump and was permitted to stay in his post after Joe Biden took office in order to complete the investigation of the president’s son. The White House and the Justice Department have said they did not interfere with Weiss’ investigation.

A one-page document from federal prosecutors to the federal court in Delaware outlining the plea deal is available here.

Notable RAND review of data and research on "justice-involved veterans"

I just saw this intriguing new publication from the RAND Corporation titled "Identifying Promising Prevention Strategies and Interventions to Support Justice-Involved Veterans."  I recommend the full piece, and here some excerpts:

The research on veterans who have come into contact with the criminal justice system — whom we refer to as justice-involved veterans — is extremely limited. Over the past decade, there have been very few rigorous studies with large sample sizes. It has been historically difficult to secure funding for research on the needs of incarcerated and formerly incarcerated populations (Boch et al., 2023).  However, there has been renewed interest at the national level in how military service and military-to-civilian transitions affect the risk of justice system involvement, as well as the specific needs of formerly incarcerated veterans as they reenter their communities.  In 2022, the Council on Criminal Justice launched the nonpartisan Veterans Justice Commission, chaired by former Secretary of Defense Chuck Hagel, to explore these questions and issue evidence-based recommendations for policy change...

Not all justice-involved veterans are incarcerated in jails and prisons.  There are no reliable statistics on the total number of justice-involved veterans (Council on Criminal Justice, 2022).  Across the population of justice-involved veterans, we have the clearest picture of the differences between incarcerated veterans and their nonveteran counterparts, in part because the Bureau of Justice Statistics conducts periodic surveys and publishes reports specific to incarcerated veterans.  These survey data are among the best sources of information about justice-involved veterans.  The bureau's most recent survey, conducted in 2016, showed that 98 percent of veterans in state and federal prisons were men and that they were older and more likely to be White and serving longer sentences than incarcerated nonveterans (Maruschak and Bronson, 2021)....

Although questions remain about veterans' pathways to criminal justice involvement, the public is generally supportive of rehabilitative approaches for these individuals (Atkin-Plunk and Sloas, 2019). A National Institute of Corrections report referenced the frequent refrain that offering alternatives to incarceration for veterans was the "right thing to do" (Edelman, Berger, and Crawford, 2016); the country has an obligation to address the enduring effects of military service, and this sense of responsibility has led to innovative interventions....

Perhaps the most well-researched intervention for justice-involved veterans is the veteran treatment court (VTC) model. VTCs follow a similar model to other problem-solving courts, such as drug courts and mental health courts, where the emphasis is on providing treatment to justice-involved individuals with substance use or mental health needs rather than incarcerating them....

The number of VTCs has expanded significantly since the first court was founded in 2008, and recent estimates suggest that there are more than 620 operating across the country (VA, 2022a).  However, there is substantial variability in policies and practices across VTCs (Baldwin, 2015; Henderson and Stewart, 2016; Douds et al., 2017; McCall, Tsai, and Gordon, 2018), making it difficult to know what models are most effective.  Some studies have yielded promising findings (Hartley and Baldwin, 2019), but most have been limited by their small scale, focus on a single court, and lack of a comparison group (e.g., Derrick et al., 2018; Shannon et al., 2017).  Estimates of recidivism rates following VTC participation range widely, from 2.5 percent to 56 percent (McCall, Tsai, and Gordon, 2018).  And beyond recidivism, there is also a need for research on ongoing treatment engagement and clinical outcomes associated with court participation.

New Sentencing Project report reviews "Adults 25 and Younger Sentenced to Life without Parole"

The Sentencing Project today released this new report on certain LWOP sentencing patterns titled "“Left to Die in Prison: Emerging Adults 25 and Younger Sentenced to Life without Parole.” Here are excerpts from the report's "Executive Summary" (with endnotes removed):

Beginning at age 18, U.S. laws typically require persons charged with a crime to have their case heard in criminal rather than juvenile court, where penalties are more severe.  The justification for this is that people are essentially adults by age 18, yet this conceptualization of adulthood is flawed.  The identification of full criminal accountability at age 18 ignores the important, distinct phase of human development referred to as emerging adulthood, also known as late adolescence or young adulthood.  Compelling evidence shows that most adolescents are not fully matured into adulthood until their mid-twenties.

The legal demarcation of 18 as adulthood rests on outdated notions of adolescence.  Based on the best scientific understanding of human development, ages 18 to 25 mark a unique stage of life between childhood and adulthood which is recognized within the fields of neuroscience, sociology, and psychology.  Thus, there is growing support for providing incarcerated people who were young at the time of their offense a second look at their original sentence to account for their diminished capacity.  A 2022 study found similar levels of public support for providing a second look at prison sentences for crimes committed under age 18 as for those committed under age 25.... 

Two in five people — 11,600 individuals — sentenced to LWOP between 1995 and 2017 were under 26 at the time of their sentence.  In Michigan, Pennsylvania, and California, nearly half of those sentenced to LWOP were younger than 26.  Nationally, the peak age at conviction was age 23, which is well within the period between youth and adulthood.

Moreover, two thirds (66%) of people under 26 years old sentenced to LWOP are Black compared with 51% of persons sentenced to LWOP beyond this age. As we show in this report, our analysis finds that being Black and young has produced a substantially larger share of LWOP sentences than being Black alone. This fact reinforces the growing understanding that extreme sentences disproportionately impact Black Americans.

The report’s findings support a recent sentencing trend recognizing emerging adulthood as a developmental stage; more than a dozen states have introduced or passed legislative reforms or adopted jurisprudential restrictions in recent years to protect emerging adults from extreme punishment.  These reforms utilize the latest scientific understanding of adolescence and young adulthood to recognize emerging adulthood as a necessary consideration in assigning culpability. 

In light of strong evidence showing the unique attributes of emerging adulthood, sentences that allow no review once adolescent development is concluded are especially egregious.

Campaign for the Fair Sentencing of Youth reporting that "1,000 individuals who were sentenced to life in prison as children are now free"

I received an email this morning from The Campaign for the Fair Sentencing of Youth (CFSY) reporting in this way on what seems like a notable resentencing milestone:

As of June 6, 2023, we’ve reached an incredible milestone: 1,000 individuals who were sentenced to life in prison as children are now FREE! Since 2009, we have been fighting alongside family members, formerly incarcerated individuals, survivors of violence, lawyers, legislators, and advocates to reach this landmark. Today, we celebrate alongside each of you and affirm once again that “No Child Is Born Bad.”

The CFSY website also provides these notable particulars on the freed group:

What do you know about these 1000 individuals who were told as children they would die in prison serving life without parole and are now free? Their recidivism rates are exceedingly low, while the time they served is exceedingly high....

RECIDIVISM RATES OF FORMER JUVENILE LIFERS ARE EXTREMELY LOW: BETWEEN 0 AND 2%.  A study in Louisiana found the recidivism rate of those who were sentenced to juvenile life without parole to be 0% while a study in Pennsylvania found it to be 1.14%. the national recidivism rate is reported to be between 40% and 68%.

THE AVERAGE NUMBER OF YEARS THESE 1000 FORMER JUVENILE LIFERS SERVED IS EXTREMELY HIGH: 30 YEARS. The median time served for homicide in the U.S. is 17 years according to statistics from the federal bureau of justice – up from less than six years before the year 2000.

THE AVERAGE AGE UPON RELEASE: 47 YEARS OLD.  While teenagers are more prone to break the law, most who commit serious crimes mature out of a tendency to break laws around 25 years old, according to criminologists, biological brain researchers, and decades of experience.

AMERICANS OVERWHELMINGLY BELIEVE THESE 1000 HAVE A CAPACITY FOR POSITIVE CHANGE: 70%. Over two-thirds of Americans agree that children who receive lengthy sentences should have their sentences reviewed by a judge or parole board after no more than 15 years, with the opportunity for release. This majority holds across race, age, gender, political affiliation, and education.

THE LONGEST SERVING AND OLDEST TO BE FREED: JOE LIGON. Locked up at age 15, Joe Ligon became the nation’s longest-serving juvenile ‘lifer.’ at 83, he became the oldest to be freed.